Pakistan: Afghans Eligible for Resettlement in UK

Lord Sharpe of Epsom Excerpts

Monday 18th December 2023 Lords Chamber

[Baroness Northover (LD)]

My Lords, on behalf of my noble friend Lady Smith of Newnham, and with her permission, I beg leave to ask the Question standing in her name on the Order Paper.

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

My Lords, Afghans in third countries, including Pakistan, who are eligible for resettlement to the UK continue to be supported by the UK Government, and flights from Pakistan to the UK continue to take place. The assessment of the number of individuals currently awaiting resettlement from Afghanistan and other third countries such as Pakistan is not available at this time as it is operational information and changes on a regular basis.

[Baroness Northover (LD)]

My noble friend has submitted a series of Questions to find out what is happening to the Afghans in Afghanistan, and those who fled to Pakistan, who are eligible to come to the UK. The Answers—and I have looked at them all—have come variously from the Home Office, the MoD and the FCDO, and they are all opaque, as was the Minister’s Answer. Does this not illustrate the challenges these vulnerable people face, as well as those who are seeking to help them? His own Answer to my noble friend spoke of action “over the coming years”. Does that seem sufficiently urgent, given the danger that those who assisted the United Kingdom during our time in Afghanistan now find themselves in?

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[Lord Sharpe of Epsom (Con)]

The Minister for Veterans’ Affairs in the other place committed to bringing back 2,800 ARAP-eligible people by the end of this year, and we are well on track to achieve that. The Secretary of State for Defence also wrote a letter recently, which has been published, in which he talks about reviewing and improving casework processes and bringing in extra resources. Between January and November this year, we issued decisions on more than 75,000 applications, clearing virtually the entire backlog. There is plenty of work going on and there are very few open cases left. These people are being repatriated as fast as we can.

[Lord Alton of Liverpool (CB)]

My Lords, has the Minister read today’s Daily Telegraph, in which the Pakistan Prime Minister cites the British-Rwandan scheme as an example of why they feel it is justified to have already deported some 450,000 people back to Afghanistan? Can he tell the House what JACS assessment has been made of the plight of minorities such as the Hazara, and what is happening about the 200 Armed Forces personnel who were trained and funded by the UK, and about whom General Sir Richard Barrons said, in that same article, that the failure to relocate them is

“a disgrace, because it reflects that either we’re duplicitous as a nation or incompetent”?

[Lord Sharpe of Epsom (Con)]

My Lords, I have not read that article. My right honourable friend James Heappey noted in the other place that it would have been more difficult to bring these people back to the UK had it not been for the support of the Government of Pakistan. We continue to co-operate closely in our efforts to bring out many thousands more, and no one with UK sponsorship has been deported. I am obviously not qualified to comment on other deportations, and I do not recognise the general’s remarks, but I will look into them.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I declare my interest as a member of the UK Armed Forces who served in Afghanistan. I recognise my noble friend’s efforts—he understands the challenge. The moral case for why we should support those who supported the UK Armed Forces in Afghanistan is clear to all noble Lords but, like others, I am concerned about the speed with which we are acting. It is urgent that we act faster. Aside from our moral obligation to these people, there is also a practical consideration: every time the UK Armed Forces serve overseas, we absolutely rely on the co-operation of national armed forces and civilians. If we are not seen as a trusted partner, that will make this very difficult in future.

[Lord Sharpe of Epsom (Con)]

I entirely agree with my noble friend that we have a moral obligation to deliver for these people. As he will be aware, this situation is about making sure that there are flights and accommodation available, and so on. As I said in an earlier answer, we are working at pace; flights arrived last week and will arrive this week. Things are happening fast.

[Lord Anderson of Swansea (Lab)]

Does the Minister accept that, by definition, these people are eligible because they have served our country and would be vulnerable if they were forced to return to the mercies of the Taliban? Many will come with eloquent references from our military, which served there at the time. How many people in this category have already been repatriated to Afghanistan and, as the Minister mentioned accommodation, to what extent is the failure to provide housing in this country a factor in the long delays?

[Lord Sharpe of Epsom (Con)]

The noble Lord asserts that all are eligible, but that is not necessarily the case. The eligibility criteria are published on GOV.UK; they are reasonably precise and, in the case of ARAP, are administered by the MoD. I can go into more detail if noble Lords wish. There is not a lack of accommodation; it is about matching families and individuals to appropriate accommodation. I believe that 700 service family accommodation units have been made available and are being filled.

[Baroness Coussins (CB)]

My Lords, how many visas have been issued to eligible Afghans in Pakistan since the Government’s recent withdrawal of their policy to identify suitable housing here before they were allowed to travel? I understood that its withdrawal was meant to remove one of the obstacles to swifter relocation.

[Lord Sharpe of Epsom (Con)]

The noble Baroness is right that that policy has been suspended for the time being. I do not have the number of visas issued but, as of the end of September 2023, the total number of arrivals from Afghanistan or a third country was around 24,600. A lot have arrived in the last few weeks, so I do not know the final numbers, which are still provisional.

[Lord Coaker (Lab)]

My Lords, I think the Minister said that the Government do not give a running commentary on the figures. However, the Minister for the Armed Forces said in the other place:

“There are around 2,000 people in Afghanistan who we need to move out and around 1,800 left in Pakistan who we need to bring in”.—[Official Report, 11/12/23; col. 635.]


Can the Minister comment on those figures? Will the schemes we are discussing deal with those 3,800 people? As the noble Lord, Lord Lancaster, said, they need urgently to be brought back to this country because they served with us.

[Lord Sharpe of Epsom (Con)]

The noble Lord is quite right. I did not say that we do not give a running commentary; I said that the information is operational and changes on a regular basis. The Minister for Veterans’ Affairs stated that we aimed to relocate 2,800 ARAP-eligible Afghans before the end of 2023; I am pleased to be able to say that we are on course to achieve that.

[Lord Houghton of Richmond (CB)]

To be absolutely clear, has the eligibility of the two Afghan special forces units under ARAP now been substantiated in principle? If not, how will this Government sustain their pretension to moral authority in their international affairs?

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[Lord Sharpe of Epsom (Con)]

As the noble and gallant Lord will be aware, ARAP is intended to relocate and support those who worked for and alongside UK Armed Forces. No applicant is ruled in automatically based on job description. The units in question were set up by the UK but were an Afghan-led component of the Afghan National Security Forces, reporting to the Afghan Ministry of Interior Affairs. Each ARAP application is decided and scrutinised on its own merits against each criterion outlined in the ARAP policy and the Immigration Rules, which are published online. Eligibility decisions are taken on a case-by-case basis. People will be eligible only if they individually meet these criteria.

[Viscount Stansgate (Lab)]

My Lords, the Minister spoke about eligibility. Can he state unequivocally to the House that a wife and young son of an interpreter who served our Armed Forces would meet the definition of someone’s immediate family who deserve to come to the UK?

[Lord Sharpe of Epsom (Con)]

I cannot say that unequivocally, no. As I have just said, it is on a case-by-case basis. In principle, of course that is the case, but with the caveat that it depends on the case under discussion.

[Lord Kerr of Kinlochard (CB)]

The Minister is a little short on numbers on the Afghan citizens resettlement scheme. When the scheme was introduced two years ago, the promise was that it would bring in 20,000 people a year. We know that thousands are lurking in hotels in Peshawar, Islamabad and Lahore, now with their permission to stay likely to be withdrawn. We know too that thousands of them have been accepted for resettlement here but are not allowed to travel because the accommodation has not been provided. They are supposed to arrange, from Peshawar, accommodation for their families in this country, which is absurd. Does the Minister accept that this may be one cause of Afghans being by far the largest group by nationality—8,600 last year—coming in small boats across the channel at grave risk to themselves? Does he not think that is a disgrace?

[Lord Sharpe of Epsom (Con)]

My Lords, the fact is that if people are not eligible under ARAP, they should not be coming on small boats and claiming asylum. Why would you forgo a legal and safe route to support a criminal gang’s activities? That rather eludes me. I do, however, understand why people are desperate to get out of Afghanistan in particular, but I go back to what I said earlier: the Government of Pakistan have co-operated, largely, with the UK, high-level negotiations are ongoing and as yet no one has been deported.

Refugees: Notice Period for Home Office Accommodation

Lord Sharpe of Epsom Excerpts

Monday 18th December 2023 Lords Chamber

[The Lord Bishop of London]

To ask His Majesty’s Government whether they plan to ensure that refugees are given 28 days’ notice before they are required to leave their Home Office accommodation, having received documentation after being granted asylum or being given leave to enter or remain.

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

My Lords, the current practice is that individuals remain on asylum support and in asylum accommodation for 28 days from the point of the biometric residence permit being issued. This means that individuals have longer than 28 days’ notice after receiving their grant of leave to make onward arrangements.

[The Lord Bishop of London]

My Lords, last week during the Question from the noble Baroness, Lady Thornhill, the case was well made that the 28-day period is inadequate and should be extended to 56 days to allow universal credit and housing benefit to come through. However, many of those who support refugees are receiving increasing numbers of concerns that refugees are being given as few as seven days’ notice before being evicted, causing widespread homelessness and greater concern. Last week, I, along with 45 faith and belief leaders, wrote to the Minister for Illegal Migration and the Faith Minister about this. What data is the Home Office collecting that demonstrates that the 28-day notice period is being properly implemented? What action will it take to review it, given reported failures to do so?

[Lord Sharpe of Epsom (Con)]

My Lords, I will go through the process: all individuals who receive a positive decision on their asylum claim can remain on support and in their accommodation for at least 28 days from when their decision is served. However, as I said in my earlier Answer, current practice is that individuals remain on that support and in accommodation for 28 days from the point of the biometric residence permit being issued. That can be five to seven days after the asylum decision. This means that individuals have longer than the 28 days’ notice after receiving their grant of leave to make onward arrangements. Confirmation of the exact date that an individual’s support and accommodation are due to end will be issued in a notice-to-quit or notice-to-vacate letter from the individual’s accommodation provider. This notice will be issued at least seven days before support and accommodation is due to end. There are at least three opportunities there where the asylum seeker, or the asylum claimant who has received a decision, will be notified. They have plenty of time.

[Baroness Lister of Burtersett (Lab)]

My Lords, last week the Minister said that 28 days was “more than enough” and “perfectly generous”. Has he read the research done over the years, which shows the hardship and heartache that that period causes to newly recognised refugees at the point where they should be delighted because they have got their status? If he has not read the research, please will he do so—and will he undertake to meet those organisations on the ground that know what it is like to have to try to find somewhere in 28 days?

[Lord Sharpe of Epsom (Con)]

My Lords, as I have tried to explain, it is more than 28 days. The underlying aspect of this is that we should be moving to 56 days; I am afraid that we simply do not agree. The asylum accommodation estate is under huge strain, as all noble Lords are aware. Increasing the move-on period would exacerbate those pressures. Therefore, there are no current plans to extend the prescribed period, which is long-standing in our legislation; but we engage with the Department for Work and Pensions and DLUHC on ensuring that individuals can move on as smoothly as possible. I have read some of the research—not all of it—and I will continue to do so.

[Lord Singh of Wimbledon (CB)]

My Lords, I add my support to the modest proposal of the right reverend Prelate the Bishop of London. Asylum seekers given the right to remain must be given a realistic timeframe to move out of temporary Home Office accommodation, bearing in mind the trauma that they have suffered and their lack of familiarity with their new surroundings. Sikh teachings on the need to help such people echo Christian sentiment, which pointedly reminds us that Jesus and his family were themselves refugees in Egypt.

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[Lord Sharpe of Epsom (Con)]

My Lords, I will go through a little bit of what local authorities receive from the department. We work closely with DLUHC and regularly engage with the local authorities to ensure that they are supported. We of course recognise that the number of individuals in the system and the clearance of the asylum backlog is adding pressure to local authorities and their housing allocation capacity because of individuals presenting as homeless. I would also say to the noble Lord that all of the people being cleared in relation to the backlog have been in this country for a long time already.

[Lord German (LD)]

My Lords, the problem that the Minister has just alluded to is that local authorities are under enormous pressure when people arrive on their doorstep with a short period of time in which to find themselves appropriate housing. Given that the number of people reporting after the decision-making is now larger than it was, what extra assistance are the Government giving to local authorities, and to the voluntary sector, which is doing so much to help where it can?

[Lord Sharpe of Epsom (Con)]

My Lords, there are a number of things that we are doing. We have local authority liaison officers who provide a specific point of contact for local authorities, particularly for urgent discontinuation-related inquiries. There are significant improvements in train to ensure that local authorities receive early notification of those who are being granted and leaving Home Office accommodation and supporting those customers through the move-on process following a positive decision. Following notification of a service decision, accommodation providers will notify local authorities within two days. We also share relevant data in the form of heat maps and various other macro data, if you will, to ensure effective planning.

[Lord Coaker (Lab)]

My Lords, notwithstanding what the Minister has just told us, the reality for many refugees with newly granted status is that they are required to leave their accommodation, often within seven days from being given a notice to quit. That means they are forced to go to their local authorities and many of them are homeless or on the streets. That is the reality, and it is the result of government policy. All the Minister tells us is that everything is fine, but it is not. It needs sorting out.

[Lord Sharpe of Epsom (Con)]

The noble Lord is right that they get seven days from the notice to quit, but they get 28 days from the issue of the biometric residence permit, so it is not quite right.

[Lord Dubs (Lab)]

My Lords, a little while ago I was talking to an organisation that looks after people who become homeless. It quoted a recent example of a refugee who could not find any accommodation in the time that he had and eventually had to sleep for a week at Euston station—having gone through all the trauma of being a refugee and all that that entailed—before this charity picked him up. That is not good enough.

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[Lord Sharpe of Epsom (Con)]

I certainly regret the individual circumstances described by the noble Lord and, obviously, we would prefer that not to be the case.

[Baroness Kramer (LD)]

My Lords, I wonder if the Minister would actually answer the question from the right reverend Prelate the Bishop of London. She made the point that sources—I assume they are sources that she respects—inform her that people have seven days in which to find alternative accommodation. Will the Minister look into the examples that she has raised? Surely everything he says means that he at least thinks 28 days is necessary.

[Lord Sharpe of Epsom (Con)]

Yes, I think 28 days is necessary, and of course I will look into those. As I say, everyone gets 28 days from the issue of the biometric residence permit.

[Lord Watts (Lab)]

My Lords, the Government have made a right mess of this. They inherited a system that worked and have broken it. Is it not wrong for refugees to find themselves out on the streets? Have they not suffered enough? Should the Government not be making sure that no refugee is homeless?

[Lord Sharpe of Epsom (Con)]

I agree with the noble Lord in as much as no one should find themselves homeless. I also agree that the refugee system is obviously under enormous strain. I therefore look forward to the noble Lord’s enthusiastic support for the Rwanda Bill when it arrives.

[Noble Lords]

Oh!

[Baroness Watkins of Tavistock (CB)]

My Lords, is the Minister confident that these refugees are made aware that the 28 days is commencing when they get their biometric assessment, or do they not realise that until they get the seven-day notice?

[Lord Sharpe of Epsom (Con)]

The noble Baroness asks me a good question. I am going to look into that, because I do not know. I assume that they are made aware of it, of course, but I have not been present when one of these notices is issued. I will find out.

[Lord Griffiths of Burry Port (Lab)]

My Lords, the most eloquent contribution to this short debate has been the silence of the Members on the Conservative Benches. Is it not a fact that, as was alluded to in the right reverend Prelate’s question, getting into the system for benefits and the rest of it requires more than the length of time that we are talking about?

[Lord Sharpe of Epsom (Con)]

I say to the noble Lord that that is not the case. You can start to apply for things like universal credit before you receive the biometric residence permit. I appreciate that that is not perfect, but it is certainly enough time to get into the system.

[Lord Pannick (CB)]

My Lords, does the Minister agree that part of the problem here is that asylum seekers are restricted in their ability to work until they receive their asylum status? Therefore, when they receive their asylum status, they have no resources that they can use in order to obtain accommodation.

[Lord Sharpe of Epsom (Con)]

The noble Lord makes an interesting point, and I will take that back to the department.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, I am glad to hear that the Minister will take that point back, but it is entirely salient and, if I may say so, I am surprised that he does not have a slightly more substantive answer. Does he also agree that one of the difficulties that many of these people face is that English is not by any means their first language and sometimes they do not have reasonable fluency in it after several years in this country? Does he accept that these additional challenges make the timeframes extremely difficult for people to manage?

[Lord Sharpe of Epsom (Con)]

I acknowledge that nothing in this particular space is easy, but there are many organisations that provide support to individuals to arrange their onward support. That includes Migrant Help, accommodation providers, DWP and jobcentres. I made the point earlier that most of the people we are talking about have been in this country for a very long time, and one would hope that they at least had some English.

Investigatory Powers (Amendment) Bill [HL]

Lord Sharpe of Epsom Excerpts

Committee stage
Wednesday 13th December 2023 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I support the points the noble Baroness, Lady Manningham-Buller, made about Amendment 50 regarding the revelation of whether someone who is in a legislature has been tapped. I do not think that is possible. I think it has all sorts of practical difficulties which she rightly outlined, and that situation is something that I could not in any way support.

I want to come back to the issue of “unable” or “unavailable” with regard to the Prime Minister. I think that it is right that it should be “unable”, because of the gravity of the business of tapping the phone of a Member of Parliament or a devolved legislature. I suspect that such a possibility is hugely remote; it might not happen for years and years. However, when it does happen, it is exceptionally serious, because you are not only depriving that Member of Parliament of liberty—you are in many ways saying that the person who has been elected by his or her constituents as a Member of Parliament or of the Senedd, or whatever it may be, is now in some doubt as a public representative. That is hugely serious, so the triple lock is important, but the word “unable” is more serious a word than “unavailable”, and I support changing the word in the Bill.

I also very much agree with the noble Lords, Lord West and Lord Coaker, about the nature of the Secretaries of State who should be the substitute for the Prime Minister if the Prime Minister was unable to perform his or her duty with regard to tapping the phone of a parliamentarian. I tapped phones for three or four years almost every day, except at weekends—occasionally at the weekend, but mainly on weekdays—and I took it very seriously. I knew that I was depriving someone of their liberty and privacy; generally speaking, they deserved to be deprived of their liberty because of the horrible things that they might do. Sometimes, although very rarely, I would not sign them, because I was not convinced of the argument put to me.

Someone who has the experience over the years of dealing with warrants has an idea of the nature of the act of signing the warrant and how important it is. It is not simply about reading it and putting your name at the bottom—you have to think about it very seriously. Your experience develops as time goes by. In fact, when I was unable or, more likely, unavailable to sign warrants as Northern Ireland Secretary—if I was on the beach somewhere in the Vendée, as I occasionally was—somebody else would sign the warrants that I would normally have signed. It was generally the noble Lord, Lord Blunkett, who was then the Home Secretary—and when he went on holiday somewhere, I signed his. The point about that was that, technically, almost every member of the Cabinet—because by then nearly every member was a Secretary of State—could have signed. But I knew, when the noble Lord, Lord Blunkett, signed mine, that he knew what he was doing—and vice versa, I hope. Therefore, there should be some way in which we designate Secretaries of State who are used to signing warrants to be a substitute for the Prime Minister.

The other issue, on which I shall conclude, is that the debate so far is evidence of why it is so important that the Intelligence and Security Committee puts its views to this House, through the noble Lord, Lord West, and that the committee should look carefully at these matters.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken in this debate, which was fascinating. I shall start by addressing the amendments and points raised on the circumstances in which the alternative approvals process would be used—that is, for urgent warrants when the Prime Minister is not available. First, it is worth reminding noble Lords that we have set out a non-exhaustive list of such circumstances in the draft excerpt of the relevant code of practice published last week. I shall come back to that in a moment.

I start with Amendments 44 and 51A, tabled by the noble Lord, Lord Anderson of Ipswich, and spoken to by the noble and learned Lord, Lord Hope of Craighead, which seek to widen the situations in which the alternative approvals process could be used to include situations where the Prime Minister is “unable” to consider a warrant—not only when they are “unavailable”. As the noble and learned Lord indicated, the amendments would extend the circumstances where the alternative approvals process could be utilised to expressly include instances where the Prime Minister has a conflict of interest in considering a warrant application.

I remind noble Lords that the Prime Minister, like all Ministers, is expected to maintain conduct in line with the Nolan principles in public life: selflessness, integrity, objectivity, accountability, openness, honesty, and leadership. When a Prime Minister has a conflict of interest in approving a warrant, due to any personal or professional connection to the subject of the warrant, they are expected to continue to act in the public interest. Therefore, in these situations, the Government consider that the alternative approvals process is not required.

When drafting the Bill, the Government considered at some length whether to make further provision for conflict of interest, along the lines of the noble Lord’s amendment, and concluded that they should not. The primary reason is that, in order for a conflict of interest provision to function, a Secretary of State or unelected official involved in the warrantry process would have to be granted the ability, in certain situations, to take from the Prime Minister a personal power given to them alone by Parliament. Unlike the provisions in Clause 21, which permit the Prime Minister to delegate their power to approve these warrants if they are unavailable, this would require a subjective decision to be made on whether the Prime Minister could, in theory, be judged able to approve the warrant. A conflict of interest provision would also have significant implications for Cabinet hierarchy and the constitution. This is because a Secretary of State or an unelected official would have to determine that the Prime Minister had a conflict in approving the warrant and was therefore “unable” to be made aware of the warrant request. It is for these reasons that the Government decided that a conflict of interest provision should not be included in the Bill.

I have referred to the draft code of practice, and the noble and learned Lord, Lord Hope of Craighead, referred to my letter. I can confirm that many of the words in that letter appear to have reappeared in the code. Paragraphs 5, 5.1 and 5.2 state that:

“Prime Ministerial unavailability should be understood to mean situations in which the Prime Minister is genuinely unavailable to consider the application. For example (non-exhaustive) … The Prime Minister is overseas in a location where they are unable to receive the warrant application due to the security requirements and classification of the documents … The Prime Minister is medically incapacitated and therefore unable to consider the warrant”.


I am very happy to share the code of practice further with all noble Lords, if they would like to see a copy.

I have noted that this conflict of interest provision is specifically not included in the similar Amendments 43 and 51, tabled by the noble Lord, Lord West, which seek to limit the circumstances in which the alternative approvals process can be used due to

“incapacity (ill-health) or lack of access to secure communications”.

As the code of practice sets out, these are two of the key scenarios for which the measure is required, but an amendment of this nature would not cater for unforeseeable events and would leave an unacceptable level of vulnerability in the system. Given that the aim is to increase the resilience of the process, these amendments feel opposite in intent. The moment that a circumstance arises in which the Prime Minister is unable, for a reason other than the two given, to authorise an urgent warrant application, the system would provide a blocker to the intelligence agencies being able to conduct their vital work, which is of course keeping parliamentarians and the public at large safe and secure. I therefore ask noble Lords not to press their amendments. However, I note the views expressed today and am very happy to continue discussions and to meet the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, again to discuss this further.

I turn to Amendments 48 and 53, also tabled by the noble Lord, Lord West. These would introduce a review by the Prime Minister of warrants authorised via the alternative approvals process for interception and equipment interference. Clauses 21 and 22 are set up in such a way that the Prime Minister’s power is afforded to the Secretary of State for the purposes of triple-locked warrantry in specific circumstances; in effect, they are acting as the Prime Minister for the purposes of the Act, not as a deputy. As such, including a requirement for the Prime Minister to review the decision after the fact would not provide additional meaningful oversight beyond that which is provided by the alternative approver on their behalf. The decisions made by the initial Secretary of State and the alternative approver would still be subject to review by the judicial commissioner, so would have already been subject to significant scrutiny. The Government therefore cannot support these amendments.

I turn to the issue of to whom the Prime Minister can delegate this process. Amendments 47 and 49, tabled by the noble Lord, Lord Coaker, and Amendments 46 and 52, tabled by the noble Lord, Lord West, all seek to limit the Secretaries of State whom the Prime Minister can designate as alternative approvers. Directing the actions of the current and any future Prime Minister by limiting the Secretaries of State to only those mentioned in statute is short-sighted, in that it does not consider potential changes to the machinery of government, as the noble Lord, Lord West, noted.

Furthermore, I invite noble Lords to consider the scenario where, for example, the Home Secretary has provided the initial approval for the application before it is considered as part of the alternative approvals process. The Home Secretary should not then consider the application on behalf of the Prime Minister; this is because it would remove a stage of scrutiny in the triple lock process. Additionally, given the potential for there to be concurrent overseas travel of the Prime Minister and at least one other relevant Secretary of State, limiting the process in this way could fail to provide the necessary resilience. While there should not be an unlimited number of designates, it is important that there are enough alternative approvers to be prepared for these scenarios.

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[Lord Fox (LD)]

I am anticipating the Minister sitting down shortly. I remind the Minister that I asked a specific question on directly elected regional mayors, their rise, and the role that they play in democracy, which is so different to when the IPA was originally conceived. The Minister may not have an answer now, but a written answer would be very helpful.

[Lord Sharpe of Epsom (Con)]

I am happy to acknowledge that the noble Lord is right: their powers have expanded, as have their influence and celebrity over the years. I do not have an answer now, but I will come back to the noble Lord on that.

The objective of these clauses is to provide greater resilience in the process. It is critical that we do not undermine this from the off. I therefore hope noble Lords feel reassured by the explanations given, and the information set out in the draft code of practice, which is the appropriate place to set out the detail of this alternative process.

[Lord Coaker (Lab)]

May I say to the noble Lord that the answer he gave to me with respect to the Mail on Sunday story was a really good answer? I am seeking transparency, which we will come on to in the next set of amendments, where Ministers can provide it without compromising operational security, as the noble Baroness, Lady Manningham-Buller, rightly pointed out. The Minister went as far as he could to say that the story needs to be looked at, it raises particular issues and I can pursue those outside of the Chamber. That was an extremely helpful comment and shows what I am trying to get at with respect to transparency—rather than just dismissing it and saying we cannot talk about it. I am very grateful for the response and thought it was very helpful.

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[Lord West of Spithead (Lab)]

My Lords, I absolutely support what my noble friend has said. I was about to leap up and say that this should not be discussed in this forum because some of it is so sensitive. The Minister handled it extremely well, but we are getting quite close to the margins.

[Lord Sharpe of Epsom (Con)]

I thank both noble Lords for their thanks. I have forgotten where I was, but I had pretty much finished.

[Lord West of Spithead (Lab)]

I beg leave to withdraw my amendment.

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Moved by

[Lord Sharpe of Epsom]

56: Clause 26, page 44, line 22, at end insert—
“(3) After paragraph 24 insert—“25 “(1) Nothing in section 56(1) prohibits—(a) a disclosure to a relevant coroner conducting an NI investigation or inquest, or(b) a disclosure to a qualified person—(i) appointed as legal adviser to an inquest conducted by the coroner, or(ii) employed under section 11(3) of the Coroners Act (Northern Ireland) 1959 (c. 15) (“the 1959 Act”) by a relevant coroner to assist the coroner in an investigation conducted by the coroner,where, in the course of the investigation or inquest, the relevant coroner (“C”) has ordered the disclosure to be made to C alone or (as the case may be) to C and any qualified person appointed or employed by C as mentioned in paragraph (b).(2) A relevant coroner may order a disclosure under sub-paragraph (1) only if the coroner considers that the exceptional circumstances of the case make the disclosure essential in the interests of justice.(3) In a case where a coroner (“C”) conducting, or who has been conducting, an NI investigation or inquest is not a relevant coroner, nothing in section 56(1) prohibits—(a) a disclosure to C that there is intercepted material in existence which is, or may be, relevant to the investigation or inquest; (b) a disclosure to a qualified person appointed by C as legal adviser to the inquest or employed by C under section 11(3) of the 1959 Act to assist C in the investigation, which is made for the purposes of determining—(i) whether any intercepted material is, or may be, relevant to the investigation, and(ii) if so, whether it is necessary for the material to be disclosed to the person conducting the investigation.(4) In sub-paragraph (3) “intercepted material” means—(a) any content of an intercepted communication (within the meaning of section 56), or(b) any secondary data obtained from a communication.(5) In this paragraph—“the 1959 Act” has the meaning given by sub-paragraph (1);“coroner” means a coroner appointed under section 2 of the 1959 Act;“NI investigation or inquest” means an investigation under section 11(1) of the 1959 Act or an inquest under section 13 or 14 of that Act;“qualified person” means a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland);“relevant coroner” means a coroner who is a judge of the High Court or of a county court in Northern Ireland.26 (1) Nothing in section 56(1) prohibits—(a) a disclosure to a relevant person conducting an inquiry under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (2016 asp 2) (“IFASDA 2016”), or(b) a disclosure to a qualified person appointed under section 24 of that Act to assist a relevant person in the inquiry,where, in the course of the inquiry, the person conducting the inquiry has ordered the disclosure to be made to that person alone or (as the case may be) to that person and any qualified person appointed to assist a relevant person in the inquiry.(2) A relevant person may order a disclosure under sub-paragraph (1) only if the person considers that the exceptional circumstances of the case make the disclosure essential in the interests of justice.(3) Nothing in section 56(1) prohibits—(a) a disclosure to a relevant person conducting an inquiry under IFASDA 2016, or(b) a disclosure to a qualified person appointed under section 24 of that Act to assist a relevant person in the inquiry,that there is intercepted material in existence which is, or may be, relevant to the inquiry.(4) In sub-paragraph (3) “intercepted material” means—(a) any content of an intercepted communication (within the meaning of section 56), or(b) any secondary data obtained from a communication.(5) In this paragraph “relevant person” means—(a) a sheriff principal,(b) a temporary sheriff principal, or(c) a sheriff or part-time sheriff (but not a summary sheriff or part-time summary sheriff) designated as a specialist under section 37(1) or (3) of IFASDA 2016.(6) In this paragraph “qualified person” means an advocate or solicitor; and “advocate” and “solicitor” have the same meaning as in IFASDA 2016 (see section 40 of that Act).”” Member's explanatory statement
This amendment inserts into Schedule 3 to the Investigatory Powers Act 2016 (exceptions to exclusion of matters from legal proceedings etc) exceptions about disclosures to inquiries or inquests in Northern Ireland or Scotland into a person’s death. The exceptions are similar to existing provision in relation to England and Wales.

[Lord Sharpe of Epsom (Con)]

My Lords, I will speak to government Amendments 56, 59 and 60. As I set out in my letter to all noble Lords on 4 December, these small amendments will ensure that the legislation works effectively.

Government Amendment 56 amends Schedule 3 to the Investigatory Powers Act 2016 to provide exceptions for disclosures of intercepted materials to inquiries or inquests in Northern Ireland and Scotland into a person’s death. This will create parity with existing provisions for coroners in England and Wales by putting relevant coroners in Northern Ireland and sheriffs investigating deaths in Scotland on the same footing as their counterparts in England and Wales. Where necessary in the interests of justice, intercepted materials can be considered in connection with their inquiry or inquest.

Government Amendments 59 and 60 will maintain the extent of the IPA 2016, as set out in Section 272 of that Act. They amend this existing power to ensure that the measures in the 2016 Act, as amended by this Bill, can be extended to the Isle of Man or the British Overseas Territories, thus ensuring consistency across the legislation. If the Government sought to extend any provision to the Isle of Man or any of the British Overseas Territories, this would require an Order in Council and the Government would, of course, consult the relevant Administrations well in advance. I ask noble Lords to support these amendments.

[Lord Coaker (Lab)]

My Lords, I will speak to my Amendments 57 and 58. They are obviously probing amendments but may generate a little discussion because they are none the less important.

Let me begin by saying that I accept absolutely what the noble Baroness, Lady Manningham-Buller, said about the important of ensuring the secrecy of much of what our security services and others do. That is an important statement of principle, and it was reinforced by my noble friend Lord Murphy when he recounted, as far as he could, some of the responsibility he had in his posts, particularly as Secretary of State for Northern Ireland. It is important to establish that I accept that principle.

--- Later in debate ---

[Lord Fox (LD)]

My Lords, I shall be brief. Just on the subject of suspicion, which I think I raised it, I was thinking—perhaps I did not articulate it well—that it was at the political-class level. It is not hard to construct a suspicious scenario where a Westminster-based Executive are hacking an Edinburgh-based politician—I am sure that suspicion would apply there. However, the noble Baroness is right about the public.

The amendment in the name of the noble Lord, Lord Coaker, is important, not because this sort of thing needs to go into primary legislation, but because his point around emphasising public understanding and support which has come out is really important. He picked out the fact that a number of officeholders have worked hard at generating a positive profile for the services, and for that they should be thanked and congratulated. I would add GCHQ, the public profile of which probably did not even exist a decade or so ago. I have several very sad friends who can hardly wait with excitement for the annual GCHQ quiz to arrive. Things like that essentially draw attention to the nature of the work that such organisations do. I laugh at those friends but then I cannot solve it and they can, so perhaps they are the winners there. Those sorts of things do not shed light and throw open the doors on the things the noble Baroness and others fear should not be public, but they create an ambience around those services which is important.

Nobody has mentioned the amendments in the name of the noble Lord, Lord Sharpe, which I guess is exactly what he wanted, and I have nothing to add to them either.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the Committee very much indeed for the points raised in this short debate, which eloquently explained the fine balance that needs to be struck in this area. As this is the last group, I take this opportunity to thank all the men and women in all the security services, who do so much to keep us safe.

[Noble Lords]

Hear, hear.

[Lord Sharpe of Epsom (Con)]

It is nice to hear that the Committee reflects that sentiment.

I appreciate the sentiment behind the amendments in the name of the noble Lord, Lord Coaker, but the Government cannot accept them. He is right that public trust and confidence in public authorities’ use of investigatory powers is of course essential. The Investigatory Powers Commissioner, along with his judicial commissioners, fulfils that very important function, as does the Investigatory Powers Tribunal. The IPC provides independent, robust and transparent oversight of public authorities’ use of investigatory powers. The safeguards in the Act are world-leading in that regard. The IPT, meanwhile, provides for a redress mechanism for anyone who wishes to complain about the use of investigatory powers, even if they have no evidence of potential wrongdoing.

As the noble Lord is aware, the Investigatory Powers Commissioner is already required to produce an annual report, which is published and laid in Parliament. One of the purposes of this public report is to provide transparency around how the powers are used, any errors that have been reported on public authorities’ compliance with the legislation, and where he considers that improvements need to be made. Amendment 57 would not really provide meaningful or additional oversight over and above what is already in place, and would in many areas be duplicative.

On Amendment 58, the noble Lord, Lord Coaker, is seeking to introduce a similar requirement to that in the original Act, in that case requiring a report on the operation of the Act to be produced five years after it entered into force. That report was published by the Home Secretary in February this year and formed the basis for the Bill, along with the report from the noble Lord, Lord Anderson. As set out in the Home Secretary’s report—and noted by the noble Lord, Lord Anderson—it is the Government’s view that future legislative reform is likely to need to keep pace with advancements in technology and changes in global threats.

It is not necessarily helpful to put a time limit on when these updates should be made. The Bill makes urgent and targeted amendments to the IPA, and it is important that there is adequate time to implement those changes and assess over an appropriate period whether they are sufficient. As I said, the Government are well aware that future legislative reform is likely and, if I may channel my inner Ronan Keating, “Life is a rollercoaster”. I hope that my explanations have reassured the noble Lord, Lord Coaker, on the existing process in place and invite him to not press his amendment.

Amendment 56 agreed.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

59: Clause 29, page 45, line 12, leave out “to subsection (2)” and insert “as follows”
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 45, line 14.

Refugees: Homelessness

Lord Sharpe of Epsom Excerpts

Wednesday 13th December 2023 Lords Chamber

[Baroness Thornhill (LD)]

I beg leave to ask the Question standing in my name on the Order Paper and declare my interest as a vice-president of the Local Government Association.

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

My Lords, in line with the practice every year, individuals who have received a decision on their asylum claim will not be moved out of asylum accommodation over the Christmas period. For this year, the dates are 23 December to 2 January inclusive.

[Baroness Thornhill (LD)]

I thank the noble Lord for that Answer. My concern was with recent Home Office data showing that around 90,000 outstanding decisions on older cases are forecast to be made before the end of December. Quite clearly, that would have a significant impact on certain councils, so will he please inform me, either now or in writing, what has happened in respect of that cohort? Does he agree that, with the demand for temporary accommodation at an all-time high, any increases are likely to overload the system and increase street homelessness? Will the Government consider increasing the notice time given to people in hotels from 28 days to 56 days, as in the Homelessness Reduction Act? Will there be a cessation over the Christmas period and in the colder weather so that plans can be put in place with the councils that are most impacted by this? Asylum distribution among councils is not equal; some councils are severely impacted.

[Lord Sharpe of Epsom (Con)]

The noble Baroness has asked me a number of questions. The Prime Minister committed in December 2022 to clear the historical asylum backlog by the end of this year. Those are the legacy cases, and provisional data to the end of November 2023 suggest that 80% of them have already been dealt with. It is nowhere near the figure that the noble Baroness suggested. I will write. I am reluctant to give provisional figures for obvious reasons—they still need to be verified.

On extending the 28-day move-on period, the asylum accommodation estate is under huge strain, as the House is well aware, so increasing the move-on period would exacerbate those pressures. There are currently no plans to extend the prescribed period of 28 days for how long individuals remain on asylum support once they have received the grant of asylum. We are engaging with the Department for Work and Pensions and DLUHC on ensuring individuals can move on from asylum support as smoothly as possible.

[Lord Bird (CB)]

My Lords, what are the Government doing about the increasing antagonism between UK people who are homeless and people who are refugees? We need to address this, because we do not want the outbreak of racism and all those other chauvinisms that are happening down at the bottom end of society.

[Lord Sharpe of Epsom (Con)]

I agree with the noble Lord; we absolutely do not want those. The Government work closely with police forces and other agencies to ensure that sort of thing does not happen.

[Lord Dubs (Lab)]

My Lords, the Minister talked about a period over the Christmas holidays when refugees would not be thrown out on the streets. How many are going to be thrown out on the streets when that period is over?

[Lord Sharpe of Epsom (Con)]

My Lords, obviously, I cannot predict what that number will be, as those asylum cases are still being processed.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I declare an interest as someone who will be hosting a Ukrainian family for consecutive Christmases in our family home with my wife, and they are very welcome. It does, however, raise a medium-term problem: like many Ukrainian families, they came here on a three-year visa, and after 20 months, they are understandably thinking about what comes next. Our Ukrainians are happily settled here, working and contributing to the economy, and, if I am honest, probably do not want to go home, like many. President Zelensky desperately wants them to go home and contribute to the reconstruction of Ukraine. What will the approach of the Government to them be as they come towards the end of their three-year visa?

[Lord Sharpe of Epsom (Con)]

I commend my noble friend for his generosity in hosting the Ukrainian family and I associate myself with the remarks on how they are needed back in Ukraine—they will be needed when the reconstruction efforts in that country commence. Regarding what the Government are planning for the Ukrainian visa system, I do not have that information to hand but will come back to the House as and when it is available.

[The Lord Bishop of Gloucester]

My Lords, given what has already been said about the inadequate notice period, can the Minister give an assurance that no notice to vacate will be implemented when a severe weather emergency protocol has been announced?

[Lord Sharpe of Epsom (Con)]

I would take slight issue with the right reverend Prelate on whether the notice period is inadequate. I think that 28 days is more than enough, and there is huge pressure on our asylum system. As the House will be aware given that we talked about it the other day, the asylum and immigration system is costing this country £4 billion a year. However, ministerial agreement has been given to pause evictions for up to three days when a local authority has activated its severe weather emergency protocol due to poor weather conditions. This reduces the risks to life and enables the individual and/or local authority to find alternative accommodation arrangements.

[Lord German (LD)]

My Lords, the biometric residence permit gives successful asylum claimants access to public services, including, crucially, access to cash and funding for housing. What progress has the department made in bringing the notice to vacate closer to the time when it provides the permit? Bringing those closer together would give people the full time available to them to find appropriate housing because they would have the cash available. Without it, they cannot find the cash. I know the Government intended to make progress on this; what progress has been made in bringing those two dates together?

[Lord Sharpe of Epsom (Con)]

My Lords, the noble Lord is quite right. The move-on period is linked to when a biometric residence permit is issued and received because, as he points out, individuals generally require that BRP to access mainstream support—benefits, local authority housing, right to rent, bank accounts and so on. They are linked.

[Lord Watts (Lab)]

My Lords, during the Covid crisis, a lot of homes were made available for homeless people. Why have the Government let that slip and gone backwards rather than forwards?

[Lord Sharpe of Epsom (Con)]

My Lords, Covid presented a very different set of challenges to those we face today. We are attempting to relieve the pressure on the enormously overburdened hotels, and all the rest of it, that are costing this country £8 million a day and £4 billion a year.

[Lord Scriven (LD)]

My Lords, following on from my noble friend’s question, the Minister is correct that the Government are trying to align the permit period but, once a permit is received, it takes at least another five weeks before universal credit and housing benefit applications can be dealt with. Will the Minister go back to the department and look at the broader picture to align the two timescales so that people are not made homeless because they cannot claim those benefits?

[Lord Sharpe of Epsom (Con)]

I will take that up with DWP colleagues, as it sounds very much like it is for their department. I cannot answer the question.

[Baroness Chakrabarti (Lab)]

My Lords, in the spirit of Christmas, will the Minister reflect on his answer to the right reverend Prelate that 28 days is “more than enough” for a recognised refugee about to be evicted, whose knowledge of English may be minimal, who may have children and who might have suffered trauma back home?

[Lord Sharpe of Epsom (Con)]

Yes, I think so, because the refugee will have been processed under a legacy asylum case and will therefore have been in that accommodation for a very long time—over a year. They would have had ample time to learn English and embed themselves to some extent into British society. An extra month is perfectly generous.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, some of those in Home Office asylum care will be under 18. How confident is the Minister that none of those under-18s will ever be made homeless and that they will find their way into some form of social care provided by local authorities?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

Obviously, there have been a number of recent examples where things have gone wrong, but I am as confident as I can be that they have now been fixed. As has been said many times from this Dispatch Box, we are working carefully and closely with the local authorities concerned.

[Lord Roberts of Llandudno (LD)]

My Lords, this morning, I had the privilege of attending a fundraising effort by voluntary organisations, which help so much, especially at this time of year, with refugee problems. What acknowledgement do we give those many voluntary organisations and all the people involved for all the effort they give at this time of year to make refugees feel at home and able to enjoy Christmas?

[Lord Sharpe of Epsom (Con)]

The noble Lord raises a very good point. I am happy to add my congratulations, thanks and general appreciation to all those organisations involved in charitable activities of whatever sort at this time of year.

Immigration (Health Charge) (Amendment) Order 2023

Lord Sharpe of Epsom Excerpts

Tuesday 12th December 2023 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Immigration (Health Charge) (Amendment) Order 2023.

Relevant document: 5th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

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

My Lords, the health charge reflects the cost to the NHS of providing healthcare to health charge payers. The increase supports the sustainability of our NHS, ensuring vital NHS services are funded and allowing wider NHS funding to be directed towards other priorities in the system.

The health charge was introduced in April 2015 to ensure that migrants contribute directly to the comprehensive and high-quality NHS services available to them from the moment they arrive in the UK. We all recognise the great contributions migrants make to help grow our economy and support our NHS; it is also important that those who use and benefit from our public services, such as the NHS, make a sufficient financial contribution towards the cost of these services.

The health charge is paid by temporary migrants applying for a visa to enter the UK for more than six months. It is paid up front, separate to the visa fee, and covers the full cost to the NHS of providing healthcare to those who pay it. Once paid, a charge-payer can access NHS services in broadly the same manner as permanent residents without having made any prior tax or national insurance contributions. Where additional NHS charges are paid, these are consistent with those paid by a UK resident, such as prescription charges in England.

Since its inception the Health Charge has generated more than £5.1 billion for the NHS. The funds generated are shared between the health administrations in England, Scotland, Wales and Northern Ireland, using the now-familiar formula devised by Lord Barnett.

The health charge must be set at a level that broadly reflects the cost to the NHS of treating those who pay it. The current rate, introduced in 2020, as determined by the Department for Health and Social Care, does not currently do this. The new rate of health charge replaces that agreed in 2020 by this House; it reflects the increases in healthcare expenditure and revised assumptions of migrant use of healthcare services. Using more recent and representative data better reflects NHS service use by health charge payers.

The order amends Schedule 1 to the Immigration (Health Charge) Order 2015. The full rate of the charge will increase to £1,035 per person per annum, with the discounted rate for students, their dependants, those on youth mobility schemes and under-18s, increasing to £776 per person per annum. These levels are currently set at £624 and £470 respectively.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I thank both noble Lords for their contributions to this shortish debate. I will do my very best to answer all their questions and commit to write if there are any that I cannot answer.

Those who move to a new country expect to pay towards healthcare. Countries around the world have a range of systems in place to do this, in line with individual healthcare models. It is right that we continue to prioritise the sustainability of the NHS and that temporary migrants make a financial contribution to NHS services available to them in the UK. Payment of the health charge provides near-comprehensive access to our health service, regardless of the amount of care needed, even for those with pre-existing health conditions.

I shall try to address all the issues raised. The health charge should broadly reflect the cost of treating those who pay it. However, the rates for students and their dependants, applicants to the youth mobility scheme and children under 18 will remain discounted. The increased rate of the health charge is comparable to the cost of private medical insurance here and abroad, which is a common requirement for individuals wishing to migrate to many other countries.

I think both noble Lords referred to the Secondary Legislation Scrutiny Committee. We thank it for considering the order and providing a detailed report on the legislation. Before I go into the methodology, I reassure the Committee that the Government have undertaken robust and detailed analysis of the annual cost to the NHS of treating health charge payers to determine the increased cost of the health charge. Increases to the health charge are based on the most recent data representing charge payers’ use of NHS services, more accurately determining the current cost to the NHS of treating health charge payers. The Government acknowledge the delay in providing responses to the Secondary Legislation Scrutiny Committee. Unfortunately, this was unavoidable, due to factors such as the changes in ministerial teams and the need for assurances of the responses between departments.

I turn to the methodology and the DHSC calculation. As set out by the Chief Secretary to the Treasury on 13 July, the health charge rates have remained unchanged for the last three years, despite high inflation and wider pressures facing the healthcare system. The increases to the charge reflect the higher costs in healthcare budgets since 2020. Additionally, the assumptions for how intensively charge payers use healthcare services in different settings have been revised to use more recent and representative data intended to better reflect migrants’ use of these NHS services. While the health charge is increasing, it is still considerably lower than the comparable average cost per capita of providing healthcare for the average UK resident, which currently stands at approximately £2,700 per person per annum.

I am aware of concerns around the combined cost of the health charge and visa fees and the impact that this may have on families and young people. The draft order maintains the reduced health charge rate for children, but the Government remain clear that migrants must pay the health charge when they make an immigration application and should plan their finances accordingly. The cost of the health charge and application fees are available online and should not come as a surprise. However, it is also recognised that, in some instances, people who are required to pay the health charge may not be able to afford it. In such instances, on family and human rights immigration routes and where it is backed by clear and compelling evidence provided by the individual, the health charge may be waived.

Where a fee waiver application is successful, the application fee and the health charge will be waived. Migrants who are granted a partial fee waiver are required to pay the application fee only; the health charge is waived in full. All the information about fee waiver applications is publicly available on GOV.UK and has been for a long time.

Evidence suggests that migrants are aware of the fee waiver process due to the volumes of migrants on eligible routes utilising fee waiver applications. For example, in the year ending September 2023, there were 46,470 visa fee waiver applications, which I would argue does not constitute “hardly any”. The Government are also committed to supporting vulnerable cohorts; there are a range of exemptions from the payment of the health charge, including for individuals in protected cohorts. That includes asylum seekers, looked-after children and victims of modern slavery and trafficking. This draft order extends the range of exemptions to migrants applying to the statelessness immigration route and to the Ukraine regime. In answer to the question from the noble Lord, Lord Coaker, about the statelessness route, it is basically for migrants who are unable legally to reside in any other country—so very similar to refugees.

[Lord Coaker (Lab)]

The Minister has just correctly defined statelessness and protected cohorts. To those who wrote the Explanatory Memorandum, all this is perfectly obvious, but for people like me and many others who read it, it would be extremely helpful if, instead of putting “protected cohorts”, they could add “such as” and do the same for “statelessness”. It would be helpful if that was done sometimes in an Explanatory Memorandum.

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a very strong case for footnotes, and I hope that my officials are paying attention to that.

On the questions raised by the noble Baroness, Lady Brinton, about the deterrent effect on migrants, the UK continues to welcome talented individuals from around the world who want to study and work here. It is difficult to isolate the impact of the health charge increase on visa demand, due to the 2020 increase coinciding with the Covid pandemic and EU exit, but evidence from visa applications over the period following the increase to £624 does not suggest any significant impact on application volumes. Visa application volumes are monitored and there remains a substantial demand for visas across the majority of the immigration routes. All fee levels across the immigration system, including the health charge, are kept under review and evaluated where appropriate.

The Government’s science and technology framework sets out 10 key actions to achieve the goal of becoming a science and technology superpower by 2030. The global race for science research, technology and innovation is becoming increasingly competitive. The Government are committed to making the UK the best place in the world to work for top scientists, researchers and innovators, and we are delivering the biggest increase in public R&D investment, including training our next generation of doctoral and post-doctoral RDI talent, having already committed to investing £20 billion in R&D in 2024 and 2025.

[Baroness Brinton (LD)]

I know that we are not discussing this today, but I referred to the increase in the income threshold to £38,500. If that is the case, why was it set at that level, when post-doc salaries start at £35,000, immediately making that important group of people unable to come here?

[Lord Sharpe of Epsom (Con)]

I was about to say that the Government launched the global talent network in 2022 to support recruitment of exceptional talent in priority areas, such as artificial intelligence, with direct support and information on attractive opportunities in the UK. The noble Baroness is right that this question is not germane to this instrument. We dealt with the increase in salary levels last week. I cannot remember the precise exemption for doctoral students, but there was a PhD exemption.

[Baroness Brinton (LD)]

Was that for post-doctoral students?

[Lord Sharpe of Epsom (Con)]

I will have to come back to the noble Baroness—I cannot remember.

[Baroness Brinton (LD)]

Perhaps the Minister could write to me afterwards. I am talking about post-docs, who arrive with a PhD on a salary of £35,000. They now have a problem because of the level at which this has been set. The point I was making is that this large increase and the other visa fee increases make the whole thing impossible. That is the real worry of universities.

[Lord Sharpe of Epsom (Con)]

As I said, I will write, because I cannot remember the precise details and I do not want to say anything that I will have to correct.

It is also important to highlight that, although current comparisons can be made, other countries do not have healthcare systems that are directly comparable to the NHS. However, when comparing the total healthcare costs and the costs as a proportion of salary, analysis shows that the health charge at its new rate is broadly equivalent to that in Germany.

We are not trying to deter migrants and reduce net migration by increasing these charges. The health charge simply reflects the cost to the NHS of providing health- care to health charge payers. It supports the sustainability of the NHS. It is not a tool to reduce net migration. It is a public sector fee and cannot exceed the cost of providing treatment for health charge payers. The health charge cannot be used for any purpose other than to fund healthcare for health charge payers.

Migration volumes have increased since the current health charge rates were introduced in 2020. The direct impact that the health charge increases have had on migration are difficult to determine due to the factors that I mentioned earlier and the impact of the Covid pandemic coinciding with the recent increases, but they certainly do not appear to be statistically significant, although that is probably over-egging it a little.

Regarding the Government’s assessment of the impact of the current rates of health charges on visa volumes, no formal review has been undertaken to assess their impact on immigration. That is partly due to the 2020 increase having coincided with the pandemic and EU exit. However, we monitor visa application volumes, which have been at record highs, as noble Lords will be aware, across the majority of immigration routes. All fee levels across the immigration system, including the health charge, are kept under review and evaluated where appropriate. To answer the specific question about price elasticity, it is basically about migrants’ willingness to apply for a given visa given an increase in price. This is derived from published academic research. I can provide links as required.

In terms of impact assessments, we have considered this; a full regulatory impact assessment estimating the impact of the IHS increase was published alongside the legislation. The Government have considered the impact that increases to the health charge will have on visa volumes, as I said. The regulatory impact assessment published alongside this estimates the potential impact on visa volumes using different scenarios. The Government have considered the impact that the health charge increases will have on specific types of immigration. The regulatory impact assessment estimates the impact on migrants and visa volumes for each individual liable route. As I said, the immigration health surcharge is not a net migration policy. The published regulatory impact assessment provides estimates for the potential impact on visa demand under different scenarios.

I think I have answered most of the questions asked of me. I will write on those that I have not answered and the specific points raised during the debate. I finish by saying that the NHS was founded to care for every citizen in their time of need. We have to cherish and preserve that principle, but it is right that migrants granted temporary permission to be in the UK make a financial contribution to the running of NHS services available to them during their stay. On that basis, I commend the order to the Committee.

Motion agreed.

Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B, C, D and H and New Code I) Order 2023

Lord Sharpe of Epsom Excerpts

Tuesday 12th December 2023 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B, C, D and H and New Code I) Order 2023.

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

My Lords, the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B, C, D and H and New Code I) Order 2023 was laid before this House on 16 October 2023. This debate follows a debate that I took part in on 4 December regarding three instruments related to the National Security Act that were also laid on 16 October.

Turning to the order we are discussing today, Section 66 of the Police and Criminal Evidence Act 1984, or PACE, requires the Home Secretary to issue codes of practice which govern the use of police powers, including the associated rights and safeguards for suspects and the public in England and Wales. The revised and new codes of practice before us ensure that those codes reflect the provisions of both the National Security Act 2023 and the Public Order Act 2023.

Before getting into the detail of the changes, I begin by noting that, as per Section 67(4) of PACE, two separate consultations on these changes were carried out, one in relation to each of the new Acts. These were carried out from 20 July to 31 August this year. The responses were generally positive about the changes proposed and the Government considered and incorporated suggestions for further amendments to the codes of practice following these consultations. The full details of the consultations and the Government’s response can be found on GOV.UK.

I will now briefly outline the changes made through this order—first, those to PACE Code A required as a result of amendments to stop and search powers made in the Public Order Act 2023 and the Government’s commitment to streamline stop and search guidance. Following Royal Assent of the Public Order Act 2023, PACE Code A required modifications to emphasise that the suspicion-led stop and search power introduced in Section 10 of the Public Order Act is afforded the safeguards contained in Code A. The suspicionless powers in Section 11 of the same Act authorise the police to stop and search individuals and vehicles to find objects made, adapted or intended to be used in connection with protest-related offences.

We are also changing PACE Code A to include provisions to improve community relations and data collection as currently found in the Best Use of Stop and Search Scheme guidance. Communicating the use of suspicionless search powers such as Section 60 of the Criminal Justice and Public Order Act 1994 and Section 11 of the Public Order Act 2023, where it is operationally beneficial to do so, and embedding a data collection requirement within the code, will build on the existing trust and confidence between the police and the community they serve.

Finally, changes proposed to PACE Code A include an updated start date for the serious violence reduction order pilot, which commenced in April this year, and an update to the ethnicity list found in Annexe B to reflect the latest categories from the 2021 census.

The amendments related to the National Security Act concern PACE Codes A, B, C, D and H, along with a new PACE Code I. In summary, the amendments to Code A are required to govern how searches of individuals subject to prevention and investigation measures under Part 2 of the Act should be carried out. These changes mirror the existing provisions in Code A for the equivalent terrorism measures.

The amendments to Code B, which covers search, seizure and retention powers, are required to account for the new search and seizure powers introduced by Schedule 2 to the National Security Act. They largely replicate those already contained in Code B for similar powers.

The changes to PACE Codes C and D make it clear that those codes do not apply to relevant provisions in the National Security Act or Schedule 3 to the Counter-Terrorism and Border Security Act 2019, such as detention provisions. This is because separate codes—including the new PACE Code I—deal with those provisions.

Both Codes A and D are also amended to exempt an officer having to give their name in the case of inquiries linked to national security. This extends the approach currently taken towards terrorism investigations and provides a crucial change to protect the identities of police officers from state actors who may seek to do them harm.

The changes to Code H implement recommendations made by the Independent Reviewer of Terrorism Legislation, which the Government have accepted. They largely reflect amendments to Section 41 of the Terrorism Act 2000 made via the National Security Act—for example, making it clear that time spent in detention under certain other detention powers will be accounted for when calculating the maximum period of detention.

Finally, this order brings into operation a new PACE Code I to govern the detention, treatment and questioning of individuals arrested under Section 27 of the National Security Act. This code contains various operational procedural matters, such as how to arrange for an interpreter for the suspect, what information must be documented in the custody record, how to provide cautions and what to do with the detainee’s property upon arrest. The code is based very closely on PACE Code H, which provides guidance for the detention and treatment of persons arrested under terrorism legislation, including the updates I have just set out.

I point out that the changes to these codes are supported by Counter Terrorism Policing and the Crown Prosecution Service. The Independent Reviewer of Terrorism Legislation has also specifically supported the changes to Code H.

I hope I have made it clear that changes made by this order are supportive of primary legislation that has already been agreed by Parliament. These revised codes promote the fundamental principles to be observed by the police and help preserve the effectiveness of, and public confidence in, the use of their legislative powers.

I very much hope noble Lords will support these revisions to the PACE codes of practice. I commend the order to the Committee, and I beg to move.

[Baroness Doocey (LD)]

My Lords, I thank the Minister for his introduction. As he said, the changes have already been debated at length and approved by Parliament, and we will not oppose them. However, I would like to make some specific points. Perhaps the Minister could address them in his summation.

We do, of course, understand the importance of ensuring, at a time of heightened and ongoing risk from hostile state actors, that the powers we give our police are a match for those people who seek to harm us. We also appreciate the need to give officers on the ground clear guidance, but there must be a balance between allowing the police to do their job and protecting civil liberties. We welcome attempts to keep the public informed about what the police are doing in relation to suspicionless stop and search. We hope this will go some way to re-establish trust among those citizens most commonly subjected to this practice, namely members of the black community.

We note concerns raised during the consultation process about when the public will be alerted to the use of suspicionless stop and search. The concern is that the term “operationally beneficial” is simply not clear enough to define when it will be in operation. Everyone recognises the importance of police operational autonomy, but can the Minister confirm that this particular concern has been taken into account?

We welcome the new data collection requirement in Code A, particularly given that the ethnicity of 20% of those subjected to stop and search in the year ending March 2022 remains unknown because it was not recorded. However, our key concern remains the extension of police powers to stop and search someone without reasonable grounds for suspicion. We have made our concerns clear that extending these powers now is fundamentally incompatible with the findings of the Casey review and the recent IOPC report, both of which found that progress in tackling racial disparity in stop and search still has a very long way to go.

In light of this, what signal are we sending to these communities in giving the police even greater leeway to carry on that practice, despite the well-documented racial bias still evident in it? Sadly, I suspect that, for many, it says that we are just not listening.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his introduction to these revisions to the PACE codes. He outlined the reasons for the changes, which reflect the various provisions of the National Security Act 2023 and the Public Order Act 2023. As such, the various rights and wrongs of the provisions have been debated, and they have been included in primary legislation. There is no need to rehearse these debates, but I will ask some questions about the resulting changes to the PACE codes.

PACE Code A is to be changed to include provisions to improve community relations and data collection. Given the importance, as we heard from the noble Baroness, of confidence and trust around suspicionless stop and search in particular, can the Minister say what these changes are and whether they help deal with issues such as disproportionality and the maintenance of community trust, which we all wish to see in the code? The changes say that they do that, so it would be interesting to know how.

More generally, is there any difference under these codes in the treatment of children or do they apply to everyone regardless of age? Some clarification on that would be helpful. Although the Minister said that these changes come from the National Security Act and the Public Order Act, given some of the questions around the use of stop and search, could other changes be made using this as a vehicle? One example mentioned here is strip-search. We have guidance for strip-search here, but we know what controversy there has been around it. I sometimes wonder whether the machine says, “We’ve had the National Security Act and the Public Order Act, so we need these changes to the PACE code that flow from that”, but there may be a missed opportunity to reflect more widely on some of the issues around what is sensible.

I think the Minister did so, but can he confirm that the stop and search powers in Sections 10 and 11 of the Public Order Act are now fully covered by these revised PACE codes?

The revised codes also include a date for the start of the serious violence reduction order pilot. When will this start and, given that it is a pilot, where will it take place? The Minister in the other place said that this was an updated start date. What caused the delay in the first place? I think the original intention, according to the statement of the Minister in the other place, was for it to start this April.

We support the various changes in the amended codes and the introduction of the new Code I, following the National Security Act 2023. As the Minister helpfully pointed out, the consultation showed that there was general support from not only the police and the CPS but the independent reviewer for the various revisions to the codes in terms of how persons are detained and treated when arrested under terrorism legislation.

Given that terrorism legislation is not devolved, but these PACE codes deal with England and Wales, will the Minister say what discussions have taken place with Northern Ireland—I presume with officials there—and Scotland, and how the PACE codes have been updated? The Minister spent some time talking about the welcome changes that were made to the PACE codes with respect to terrorism, but these codes refer to England and Wales and not to Scotland and Northern Ireland. How has that been dealt with? It would be interesting to hear from the Minister about what has happened there.

PACE Codes A and D are amended so that an officer does not have to give their name in the case of inquiries linked to national security. I understand that—it is for sensible and obvious reasons, as the Government said—but how would it work if somebody wanted to complain or get a review of their treatment? I appreciate that the name should not be given, but could a number be given, or is there some other method by which anonymity could be protected while recognising that sometimes issues arise and somebody may wish to complain or take forward something that has occurred in an interview? They may have been interviewed and perhaps even arrested and then released and wish to make some complaint about it. How will that be dealt with?

We accept these changes and recognise the importance of striking the balance between individual rights and security. Public confidence and trust are everything, even in challenging circumstances. I urge the Government to do everything in their power to ensure that we maintain that confidence and trust with respect to the implementation of this order. We do not oppose these important codes, but some clarifications would be helpful for us all.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords for their contributions. I will do my best to deal with the points raised.

The noble Lord finished on the subject of whether it is proportionate, in effect, to allow police officers to not give their names in inquiries linked to national security, as per Codes A and D. The Government have amended Codes A and D to exempt officers from having to give their name in cases of inquiries linked to national security, which extends the approach currently taken towards terrorism investigations. It is a crucial change to protect police officers from being obliged to reveal their identity to state actors who may be highly trained and seek to use such knowledge to conduct harmful activity against them. It is difficult to see how an individual might write a complaint against an officer who is interfering with them, but I will look into it, and if I can find anything useful to enlighten the noble Lord, I will come back to him.

The noble Lord also asked whether we have been consulting the devolved Administrations. The answer is yes. We have been consulting them extensively. When PACE Northern Ireland will be published is a matter for the Northern Ireland Executive. However, they are undertaking a review of the PACE Northern Ireland codes of practice and are apparently about to revise them. As soon as I have those revisions, I will let the noble Lord know.

[Lord Coaker (Lab)]

Given that the Executive and the Assembly are not functioning, does he mean that officials are doing that?

[Lord Sharpe of Epsom (Con)]

I assume so, but I will find out and come back to the noble Lord.

The Government also obtained concurrence from the Lord Advocate for the part of this that applies to Scotland. We engaged with the Scottish Government and Scottish policing throughout the process of creating this code. I believe that one or two of the changes made reflect Scottish policing’s comments on it.

On disproportionality, which was raised by the noble Baroness, Lady Doocey, as well as the noble Lord, of course I understand the concerns around disproportionality and the impact of stop and search, particularly on members of the black community. Nobody should be targeted because of their race. Extensive safeguards such as statutory codes of practice and body-worn video exist to ensure this does not happen.

It is worth pointing out that, although disparities in the use of stop and search remain, it is positive that they have continued to decrease for the past four years. The proposals set out in these changes, such as the communication of the suspicionless stop and search authorisation will, in my view, improve the relationship between black and ethnic minority groups and the police. Of course, the phraseology behind that—“where operationally beneficial” in particular—was very carefully considered to sort out this issue.

It is also worth saying that the Home Office now publishes more data than ever before on police powers, including the use of stop and search. As part of the inclusive Britain strategy, the Home Office Race Disparity Unit and Office for National Statistics have worked to improve the way stop and search data is reported and to enable more accurate comparisons to be made between different police force areas. The proposed change on data in this updated code would reflect the power given to the Home Secretary under Section 44 of the Police Act 1996, but this data is collected and published online as part of a statistics bulletin.

The noble Lord, Lord Coaker, asked about protections for children. There are safeguards in this code as well. Children detained will have to have an appropriate adult assigned to represent their best interests.

The noble Lord also asked whether there was a delay—there was. It was supposed to be rolled out on 17 January this year but ended up commencing on 19 April. The reason for that was the difficulty of getting the training in place in time. The four pilot areas are the West Midlands, Thames Valley, Merseyside and Sussex.

With that, I think I have answered the questions that were asked of me. I reiterate that the updated and new PACE codes of practice will help the police to use their powers in a proportionate and consistent manner in accordance with the primary legislation. As such, I commend this order to the Committee and thank both noble Lords for their support.

Motion agreed.

Investigatory Powers (Amendment) Bill [HL]

Lord Sharpe of Epsom Excerpts

Committee stage
Monday 11th December 2023 Lords Chamber

[Lord Fox (LD)]

That is exactly the case.

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

My Lords, I am grateful for the contributions to this debate, which have been very interesting. I thank all noble Lords for the points raised. I shall do my very best to address all of them and apologise in advance for going into significant detail. I also thank everyone in the Committee for their broad support for the Bill.

I will start with the low/no privacy factors on bulk personal datasets, which I will henceforth call BPDs, and the various amendments relating to the test set out in Clause 2, to be applied when an intelligence service is considering whether a particular dataset is one that can be retained, or retained and examined, under new Section 226A in the new Part 7A. This test requires that regard must be had to all the circumstances, and that particular regard must be had to the factors set out in new subsection (3). The list of factors is not exhaustive and other factors may be considered, where relevant.

Schedule 10 to the Data Protection Act is related to Section 86 of that Act, which is concerned with sensitive processing of personal data by the intelligence services. Schedule 10 sets out a list of conditions which must be met for such processing to be lawful for the purposes of the Data Protection Act. There is a risk that applying these words here, in a different context and for a different purpose, may be seen to create a link, albeit fallacious, between the type of datasets that will be retained and examined under new Part 7A and sensitive processing under the Data Protection Act. For that reason, their inclusion here risks doing more harm than good, as the noble and learned Lord, Lord Hope of Craighead, noted.

In any case, the safeguards in new Part 7A are already sufficient to ensure due regard for privacy. Every dataset proposed to be retained, or retained and examined, must be individually authorised. In addition to the test at new Section 226A, as new Section 226B makes clear, an individual authorisation may be granted only if it is both necessary and proportionate.

The factors have been chosen because they are most relevant to the context in which the test will be applied and have been drawn from existing case law. They provide a guide to the decision-maker in reaching a conclusion as to the nature of the dataset. Furthermore, a form of prior judicial approval will apply to all authorisations so that there is independent oversight of the conclusions reached.

Amendment 1, tabled by the noble Lord, Lord Coaker, seeks to replace factor (b) with language drawn from Schedule 10 to the Data Protection Act 2018. Factor (b) is concerned with the extent to which an individual has made public the data in the dataset, or has consented to the data being made public. The Government do not consider the amendment necessary. I am sure the noble Lord’s aim is to improve the safeguards in the Bill, and he has drawn inspiration from existing precedent to do so in an effort to bring consistency across statute. However, the amendment fails to achieve that aim, and risks creating an unclear and unnecessary link between this Bill and the Data Protection Act, which I have already explained. I will return to the Data Protection Act in due course.

Amendment 2, tabled by the noble Lord, Lord Fox, probes the inclusion of factors (d) and (e), relating to publicly available datasets that are already widely known about or are already used in the public domain—for example, in data science or academia. As I mentioned, the test in new Section 226A is one in which

“regard must be had to all the circumstances”.

The removal of factors from new subsection (3) would not, therefore, fundamentally change the test; it would mean simply that the decision-maker would not be bound to have particular regard to the absent factors. This amendment would, in fact, result in less transparency in the considerations the intelligence services apply when assessing expectation of privacy in relation to Part 7A authorisations.

The Government consider it important that particular regard is had to these factors. I know that noble Lords particularly enjoy the example of the “Titanic” manifest. It is a useful example of where such factors would be relevant, as it is a dataset that is widely known about and widely used, and contains real data about real people who would, unfortunately, no longer have an expectation of privacy. I also point to the helpful example in the independent review by the noble Lord, Lord Anderson: the Enron corpus. This is a large dataset of emails that came into the public domain following the investigation into the collapse of the Enron Corporation. Although initially sensitive, the dataset has been available in various forms for almost 20 years and is widely used in data science. It is right that such datasets are in scope of the new regime.

The noble Lord, Lord Fox, asked specifically about the extent to which these factors depart from existing privacy laws. The law concerning the reasonable expectation of privacy is likely to develop over time, and new Section 226A is intended to be sufficiently flexible to accommodate future changes. Rather than departing from the law, new Section 226A is intended to ensure that the intelligence services can continue to apply the law as it develops.

On Amendment 3, I thank the noble Lord, Lord Anderson, for tabling this helpful probing amendment. I am afraid the Government do not think it is necessary in order to achieve what we understand the intended effect of the amendment to be. The amendment does, however, provide an opportunity to better explain the difference between what the Bill calls “individual authorisations” and “category authorisations”. An individual authorisation will authorise the retention, or retention and examination, of a dataset under the new Part 7A being inserted into the Investigatory Powers Act—which I will henceforth refer to as the IPA—by this Bill.

All datasets that are to be retained under Part 7A must have an individual authorisation. Individual authorisations are subject to prior approval by a judicial commissioner unless the dataset described falls within an existing category. A category authorisation will not authorise the retention, or retention and examination, of a dataset. Instead, it is a mechanism through which a judicial commissioner’s permission may be sought in order to depart from the normal rule on prior approval, but only in respect of datasets that meet a particular description.

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[Lord Fox (LD)]

If the Minister and indeed the noble Baroness had listened to what I said, they would know that I do not think it is forgettable; I just wanted the Minister to confirm that point.

[Lord Sharpe of Epsom (Con)]

Thank you; point taken.

Section 226D provides a mechanism to achieve what I understand the intent of the amendment to be. It is clear that remedial action must be taken if it is discovered that Section 226A does not apply or no longer applies to part of a dataset authorised under Part 7A. Anything in the process of being done must be stopped as soon as possible, and that part of the authorisation is treated as cancelled. The effect of that part of the authorisation being treated as cancelled is that the data to which it relates must be deleted unless there is some other lawful basis for its retention. It may well be that it is appropriate for the intelligence service to continue to retain the data. That is why subsection (3), in effect, puts that part of the dataset back into the decision-making machinery in Section 220 of Part 7 of the IPA—so that such a decision can be made. We provide a fuller explanation of that in the draft code of practice for Part 7A, at paragraphs 4.26 and 5.39.

In conclusion on this amendment, if the noble Lord is suggesting that any actionable intelligence that has been identified while the agency was operating on the basis of that retention and examination being lawful under Part 7A should not be acted on, I am afraid I must playfully suggest that it is he who ought to forget his amendment.

I turn now to the various amendments on reporting on BPDs, including several that seek to amend the provisions set out in Clause 2, under Section 226DA, which require the heads of the intelligence services to provide an annual report on Part 7A to the Secretary of State. The first amendment proposed by the noble Lord, Lord Fox, Amendment 11, seeks to mandate that certain statistical information in a given year—specifically, the numbers of authorisations sought and granted—be provided to the relevant Secretary of State. This amendment is not necessary or appropriate. First, those Secretaries of State who are politically accountable for the intelligence services will have in place arrangements to that end and may demand of the relevant intelligence service any additional information he or she feels necessary. This may go beyond the level of detail the noble Lord has proposed be included in the annual report and may be more frequent. This is not a matter for the Bill, because the exact information the Secretary of State requires may evolve over time. Secondly, if this sort of specific reporting requirement is found to be necessary or desirable, it is more appropriate for inclusion in a code of practice, rather than being in the legislation. Indeed, the draft code of practice for Part 7A sets out some relevant details under paragraph 7.4.

I turn now to Amendments 10 and 12, proposed by the noble Lord, Lord West, and I take this opportunity to reassure him and the noble Lord, Lord Murphy. On behalf of the Security Minister, we thank them for their valuable work on the ISC and for the constructive engagement with the Bill Committee to date. I am pleased to see the noble Lord, Lord West, in his place today, and I am glad that he is on a more or less even keel.

The amendments the noble Lord has tabled would require the intelligence services to provide the same annual report that they provide to their Secretary of State, on the operation of Part 7A, to the ISC and the Investigatory Powers Commissioner. I do not believe that this additional requirement would provide the enhanced oversight of the regime that the amendments purport to provide. The annual reporting requirement is a formal statutory mechanism by means of which the Secretaries of State will receive information from the intelligence services about their use of Part 7A on an annual basis. This is a mechanism intended to ensure effective political oversight by the Secretary of State.

The ISC is a committee of Parliament. Oversight by the ISC is neither of the same nature as, nor a replacement for, the oversight of the Secretary of State. The ISC, as a committee of Parliament, already has a long-standing and well-established role in the oversight of the intelligence services to which these provisions will apply, and that role will continue here.

Sending the annual report to the Investigatory Powers Commissioner will not increase the level of independent oversight provided, for the following reasons. First, the Investigatory Powers Commissioner will be required to keep this new regime under review, as he does with the current Part 7 regime, and he will continue to report annually on his findings. Secondly, the information these amendments seek to include in the annual report is already information that the draft code of practice will require the intelligence services to keep, as is clear from paragraphs 7.1. and 7.2. The commissioner, and anyone acting on his behalf, has access to all locations, documentation and information systems as necessary to carry out a full and thorough inspection regime. The intelligence services are legally obliged to provide all necessary assistance to the commissioner, or anyone acting on his behalf, including by providing documents and information.

The noble Lords, Lord Fox, Lord Murphy and Lord West, asked about the continued engagement with the ISC. On both the policy proposals informing the Bill and the Bill itself, through a combination of ministerial, operational and official engagement, we have maintained continual engagement, which includes recent sessions with the Security Minister and the agency heads. As I said earlier, we are grateful to the committee for its engagement and scrutiny of the Bill. We will continue to involve it throughout the Bill’s passage, and I am more than happy to take the noble Lords’ comments back to the Home Office and make sure they are widely understood.

Amendment 13 would see the intelligence agencies notify the Investigatory Powers Commissioner every time an individual authorisation is granted in reliance on a category authorisation. I have already set out the distinct processes for individual and category authorisations under new Part 7A. As I set out earlier, categories will be authorised only with the prior approval of a judicial commissioner. IPCO inspectors will then be able to review the individual authorisation granted in reliance on a category authorisation during their regular inspections of the intelligence services throughout that time. Category authorisations will expire at 12 months and will then need to be renewed and that decision reapproved by a judicial commissioner.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the three previous speakers in the short debate on this group. There are no opposition amendments in it, so I shall set out some more general questions that arise out of the amendments spoken to.

Why have the Government brought forward the widening powers to obtain communications data when the original Bill did the opposite? Can the Government provide an exhaustive list of the bodies that will be able to use these communications data collection powers? Why are they not in the Bill or the Explanatory Notes? Giving bodies such powers during any criminal investigation appears out of step with the rest of the Bill, which covers investigatory powers for national security or serious crime reasons. Why is this power so broad as to cover any criminal investigation? Given that the double lock exists for most of the powers in the Bill, why have the Government given wide-ranging powers for intelligence authorities and the NCA to self-authorise accessing internet connection records while undertaking subject discovery work? How does this compare to the powers for conditions A, B and C, which cover access to ICRs, for more restrictive purposes? Finally, what will the role of the IPC and the ISC be in monitoring how the new powers are used?

I was particularly interested in what the noble Lord, Lord Anderson, said when he was commenting on the two other speakers in this short group. I, too, will listen with great interest to what the Minister has to say on this, but this is all done in the spirit of exploration, as my noble friend Lord Coaker said. I look forward to the Minister's comments.

[Lord Sharpe of Epsom (Con)]

I thank all noble Lords who have spoken in this group. I will first speak to Amendment 20, tabled by the noble Lord, Lord Fox, which would amend Clause 11. I want first to make it clear that Clause 11 does not enable any new activity under the Investigatory Powers Act but places into primary legislation the existing position set out at paragraph 15.11 of the Communications Data Code of Practice.

Paragraph 15.11 clearly sets out that it is not an offence to obtain communications data where it is made publicly or commercially available by the telecommunications operator or postal operator or otherwise, where that body freely consents to its disclosure. In such circumstances, the consent of the operator provides the lawful authority for the obtaining of the data on which public authorities can rely. Making this position explicit within primary legislation will provide clarity that acquiring communications data in this way will amount to lawful authority for the purposes of the offence in Section 11. As such, there will be no doubt that acquiring communications data in this way means that an offence will not be committed in such circumstances.

The purpose of new subsection (3A)(e) is not permitting so-called surveillance, as the noble Lord’s amendment asserts. Rather, it is about clarifying the basis for lawful access to material which has already been published and should not require additional authority for its disclosure by a telecommunications operator, with the consent of that operator, to a public authority. I can assure noble Lords that telecommunications and postal operators will still need to satisfy themselves that any communications data disclosure is in accordance with the Data Protection Act, and any subsequent processing by public authorities must also be compliant.

The inclusion of this paragraph in the definition of “lawful authority” in the IPA will provide reassurance to public authorities on the basis for which they have lawful authority to acquire communications data where this authority falls outside the IPA itself. Inserting a definition of lawful authority does not remove the offence of knowing or recklessly obtaining communications data without lawful authority; it is still possible to commit this offence if the disclosure by the telecommunications operator is not lawful or if the public authority knowingly or recklessly acquires the communications data without lawful authority. The inclusion of this definition of lawful authority will encourage public authorities to ensure that they have lawful authority before they acquire communications data. I therefore respectfully ask the noble Lord to withdraw his amendment.

I turn to Clause 13 and the proposal from the noble Lord, Lord West, to remove this provision and the associated schedule from the Bill. The purpose of Clause 13 is to ensure that bodies with regulatory or supervisory functions are not inhibited in performing the roles expected of them by Parliament. It restores their important pre-existing statutory powers to acquire communications data in support of those functions. When the IPA was passed in 2016, it made specific provision, at Section 61(7)(f) and (j), for acquisition of communications data for the purposes of taxation and oversight of financial services, markets and financial stability.

As a result of the Tele2 and Watson judgment from the Court of Justice of the European Union in 2016, a number of changes were then made to the IPA. Crucially, not all the changes made at that time were a direct response to the judgment itself, but instead the opportunity was taken to streamline the statute book. This included the removal of the regulatory provisions contained in the IPA because, at that time, those public authorities with regulatory or supervisory functions were able to acquire the data they needed using their own information-gathering powers. At that point, much of the relevant data fell outside the definition of communications data and therefore outside the provisions of the IPA. However, as businesses increasingly move their services online, so many have become, in part at least, telecommunications operators under the definition in the IPA. Therefore, more of the data they collect, and which regulatory and supervisory bodies would have previously been able to access using their own information-gathering powers, now falls within the IPA’s definition of communications data, and regulatory and supervisory bodies are, inadvertently, unable to acquire it.

The Financial Conduct Authority, His Majesty’s Revenue and Customs and Border Force are all examples of public authorities in Schedule 4 to the IPA and already have the power to acquire communications data using a Part 3 request. However, many of the matters that these bodies regulate or supervise fall short of serious crime, as defined in the Investigatory Powers Act at both Section 263(1) and Section 86(2A), which means that they are unable to acquire a Part 3 authorisation to get the data they need to perform the statutory functions expected of them.

The UK is not alone on this issue; European colleagues have identified similar issues for their equivalent bodies with regulatory and supervisory functions. The functions these bodies perform on behalf of the UK are simply too important to let this situation continue. They go to the heart of our safety in preventing terrorist funding, seeking to ensure financial stability, and the oversight of banking and financial markets, among other matters. For example, the Financial Conduct Authority has responsibility for supervising some 50,000 regulated firms to ensure they have systems and controls in place concerning the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017. Border Force has the responsibility of quickly identifying from the huge volumes of packages crossing our borders each day, those that may contain illegal items such as drugs, firearms and other illicit goods that present a risk to the UK. It is vitally important that these bodies are not inhibited in carrying out their core functions because of the way the world has changed since 2016.

The changes to the IPA brought about by Clause 13 strike an appropriate balance between necessity and proportionality, making clear as it does that the acquisition by these regulatory bodies should only be in support of their civil functions and not used in support of criminal prosecutions. Additional safeguards are provided for within codes of practice governing how this should work in practice. To be clear, this applies to a relatively small cadre of public authorities in support of specific regulatory and supervisory functions; it is not creating a way to circumvent the safeguards of the IPA. It instead ensures that the acquisition routes and associated strong oversight by the Investigatory Powers Commissioner are reserved for those areas where it is most essential.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will briefly speak to the five amendments in this group in the name of my noble friend Lord Coaker. Amendments 35 and 37 would introduce a double-lock process to notices given under the notification of proposed changes to telecommunications services, bringing it in line with the procedure for the three existing types of notices that can be issued to telecommunications operators. Amendment 36 would add a further factor that the Secretary of State must consider when deciding to give a notice under this section, bringing this type of notice into line with the three existing types of notices that can be issued to telecommunications operators. Amendments 38 and 39, along with the others in my noble friend’s name, would introduce a potential double-lock process to the variation of notices given under the notification of proposed changes to telecommunications services, bringing it in line with the procedure for variation of the three existing types of notices that can be issued to telecommunications operators.

In introducing this group, the noble Lord, Lord Fox, set out very comprehensively the concerns of the various tech companies. I have read the same briefings that he has. He was right to see this as an opportunity for the Minister to address those concerns.

I have a few questions arising out of these amendments. First, why have the Government not included a double-lock structure of approval to this new type of notice, given that the three other types of notices that telecom companies can be issued have the same structure, along with many of the provisions in this Bill and the IPA? Further, why does it not have the same review structure as the other notices? What will companies be able to do to challenge this decision? New Section 258A states that companies must respond within “a reasonable time”. What would the Government consider a reasonable time to be in this regard? What assessment has been made of what other companies are doing to ensure they are aware of changes that would potentially impact national security? Finally, can the Government be more specific about the types of changes that would be considered relevant for this new notification of the proposed changes?

[Lord Sharpe of Epsom (Con)]

My Lords, once again, I thank noble Lords for their amendments and the points they have raised in this debate. I will do my very best to answer the questions that have been asked. Again, I am afraid I am going to do so in some detail.

The noble Lord, Lord Fox, has proposed removing Clause 16 from the Bill in its entirety. Clause 16 concerns the extraterritorial enforcement of retention notices. Under subsections (9) to (11) of Section 255 of the IPA, any technical capability notice—TCN—is already enforceable by civil proceedings against a person in the UK. Only TCNs that provide for interception and targeted communications data acquisition capabilities are enforceable against a person overseas. Section 95 of the IPA also provides that a data retention notice—DRN—is enforceable by civil proceedings against a person in the UK. DRNs already have extraterritorial applicability within the IPA, meaning that they can already be given to a person outside the UK. However, unlike TCNs, the current legislation does not permit the enforcement of a DRN against a person outside the UK.

Clause 16 therefore seeks to amend Sections 95 and 97 of the IPA to allow extraterritorial enforcement of DRNs to strengthen policy options and the legal levers available when addressing emerging technology, bringing them in line with TCNs. As technology advances, data is increasingly held overseas. The clause will ensure that, if required, there is a further legal lever to protect and maintain investigatory powers capabilities overseas. This will ensure that law enforcement and the intelligence agencies have access to the communications-related data that they need to tackle serious crime and protect national security. It will also ensure consistency across the regime.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

33: Clause 20, page 39, line 5, leave out “as follows” and insert “in accordance with subsections (2) and (3)”
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 41, line 14.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

40: Clause 20, page 41, line 2, leave out “(or description of persons)”
Member's explanatory statement
This amendment and the amendment in the name of Lord Sharpe of Epsom at page 41, line 4 correct an inconsistency in clause 20 by omitting references to a notice under section 258A of the Investigatory Powers Act 2016 being given or revoked in relation to a description of persons.

Rwanda Treaty

Lord Sharpe of Epsom Excerpts

Friday 8th December 2023 Lords Chamber

[Lord Collins of Highbury]

To ask His Majesty’s Government what additional costs they expect to be incurred as a result of this week’s signing of a treaty to facilitate the removal of migrants to Rwanda.

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

My Lords, the Government of Rwanda did not ask for money to sign the treaty, nor did we offer any. Costs and payment will depend on the numbers of people relocated, timing of when it occurs and outcomes of individual cases. Spending on the migration and economic development partnership will be disclosed in the annual Home Office accounts.

[Lord Collins of Highbury (Lab)]

My Lords, yesterday, my noble friend Lord Liddle asked what is the present capacity of Rwanda to take asylum seekers. The Minister said that the Government do know that number but that he did not. Please will he tell us today what the Government know? In April 2022, when the economic transformation and integration fund was established, it was clearly part of the refugee scheme. The announce-ment then also said that the United Kingdom is funding the processing costs for each person relocated, saying that we anticipated the amount would be comparable to processing costs incurred in the United Kingdom. So what are the anticipated costs now, in the light of the provisions of the treaty, which changes fundamentally the original scheme? Why, for three financial years, under three Home Secretaries, have the Government been committing money to a scheme that has not seen a single asylum seeker sent to Rwanda, and which will see the United Kingdom accepting people in return? This Parliament deserves very clear answers from the Minister.

[Lord Sharpe of Epsom (Con)]

My Lords, the noble Lord is quite right: I was unable to answer that question yesterday, for which I apologise. To answer the noble Lord, Liddle, the Court of Appeal said there was evidence of only 100 places in the initial accommodation. Its assessment was based on evidence up to the summer of 2022. Since then, additional capacity has been added, but the exact number is immaterial because the scheme is uncapped, as I did say yesterday. Capacity will continue to be added as required. When claims are settled, people will move out of the accommodation. Finally, when the scheme works, and deters people from making illegal and dangerous channel crossings, we will need fewer places.

Yesterday, as noble Lords will be aware, the Permanent Secretary sent a letter to the Home Affairs Select Committee to disclose a further payment made to the Government of Rwanda through the migration and economic development partnership. This disclosed that a further £100 million had been paid in April as part of the ETIF. The letter also set out that, in the year 2024-25, we anticipate another payment of £50 million, in April 2024, again as part of the ETIF, as agreed with the Government of Rwanda when the migration and economic development partnership was signed. This brings the total spend so far to £240 million. The split is as follows: the initial investment of £120 million into the ETIF, a further £100 million into the ETIF, which was disclosed yesterday, and a separate payment of £20 million to the Government of Rwanda in advance of flights to support initial set-up costs of the asylum processing arrangements under the MEDP.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the International Agreements Committee will be scrutinising the new treaty. Will the Minister make sure that it has all the information it needs when it does that, including whether the treaty allows for any clawback of either unspent or unused money?

[Lord Sharpe of Epsom (Con)]

My Lords, the Government have already committed to appropriate scrutiny of the treaty. I will take back the noble Baroness’s points about clawback as I do not know the answer.

[Lord Bailey of Paddington (Con)]

My Lords, there has been a great deal of focus on the cost of the partnership. Can the Minister please tell me how much money has been spent on housing asylum seekers in hotels and what the overall cost to the taxpayer is of the immigration system?

[Lord Sharpe of Epsom (Con)]

My noble friend makes a good point. Those focusing solely on the costs of the partnership are somewhat missing the point. The simple fact of the matter is that the daily cost of hotels for migrants is now £8 million. The cost of the UK’s asylum system has roughly doubled in the past year and now stands at nearly £4 billion. So the payments so far made to Rwanda represent about 30 days’ hotel costs. The criminal smuggling gangs are continuing to turn a profit using small boats. We have to bring an end to this. When this plan succeeds, as I think it will, I think British taxpayers will acknowledge that it represents good value for money.

[The Lord Bishop of Chelmsford]

My Lords, will the monitoring committee, as outlined in the economic development partnership and now the treaty, review how funds have been allocated by the Rwandan authorities towards meeting the needs of refugees?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

The treaty enhances the role of the independent monitoring committee. It will ensure that obligations under the treaty are adhered to in practice and will be able to take steps to prevent errors at an early stage. It will have the power to set its own priority areas for monitoring and will have unfettered access for the purposes of completing assessments and reports that will monitor the entire relocation process from the beginning, including screening, to relocation and settlement in Rwanda. It will be responsible for developing a system to enable relocated individuals and legal representatives to lodge confidential complaints direct to the committee and it will undertake real-time monitoring of the partnership for at least the first three months. There is plenty of scope in there for it to get involved in everything.

[Baroness Taylor of Bolton (Lab)]

Will the Minister acknowledge and confirm that Home Office officials insisted on a letter of direction on this matter because they did not consider that this would be value for money? Can the Minister also tell the House why the Government are not devoting resources of this size to tackling the criminal gangs that are so cruel in bringing people in in such a dangerous way?

[Lord Sharpe of Epsom (Con)]

On the noble Baroness’s second point, the Government are devoting considerable resources to tackling the criminal gangs, as has been well established from the Dispatch Box in many previous debates. As regards the letter that was sent yesterday, I am sure the noble Baroness will recall that the Permanent Secretary appeared before HASC and the Public Accounts Committee on 29 November and 4 December. They asked about payments that the UK had made and he explained at that point that payments in the 2023-24 financial year would be announced in our annual report and accounts next summer, for reasons of balancing the public interest. Since then, Ministers have agreed that Sir Matthew can now disclose the payments for this financial year. That is what happened.

[Lord Cormack (Con)]

My Lords, we all completely condemn these terrible criminals, but how many have been apprehended?

[Lord Sharpe of Epsom (Con)]

My Lords, I do not know the answer to that. Part of the reason that I do not know the answer is that so much of this activity takes place on foreign shores.

[Viscount Waverley (CB)]

My Lords, on costs and criminal gangs, may I ask for clarity following my question yesterday and the Minister’s response? Have the Government fulfilled all extradition requests by the Government of Rwanda on matters relating to genocide and war crimes—and if not, why not? Or is there a reticence by HMG to do so, and if so, why?

[Lord Sharpe of Epsom (Con)]

I will have to write to the noble Viscount about extradition requests. I do not know the answer.

[Lord Watson of Invergowrie (Lab)]

My Lords, the Minister said the funding of this ill-considered and, I think we will find, ill-fated scheme is coming from the Economic Transformation and Integration Fund. It is not clear who or what will be economically transformed or who or what will be integrated. Can he say how much of that funding will be taken from the overseas development aid fund?

[Lord Sharpe of Epsom (Con)]

The money is actually going to the ETIF, which is responsible for the economic growth and development of Rwanda. Investment so far has been focused on areas such as education, healthcare, agriculture, infrastructure and job creation. I am pleased to be able to reassure the noble Lord that none of it came from ODA.

[Baroness Henig (Lab)]

My Lords, can I just ask about the deterrent aspect of this issue? By my calculations, more than 30,000 refugees are coming per year and so far we have heard today that something like 100 will be going back. Now, my maths is not wonderful, but that to me is less than 1%. Why does the Minister believe that will be a deterrent for anybody fleeing war or imprisonment? Following on from that, does the Minister not agree that in terms of value for money—I know that he is very much in favour of value for money—it would be a far more effective use of that money to help the poorest through the coming winter?

[Lord Sharpe of Epsom (Con)]

In answer to the noble Baroness’s first question, I say that the deterrent effect is already working; arrivals this year are down by around 30%, as my right honourable friend the Home Secretary noted the other day. As regards value for money, the point of this is to stop the boats. As I said in answer to my noble friend, hotel accommodation is costing the taxpayer £8 million a day. How is that value for money?

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I wonder whether the Minister will reflect on what he has just said. The Prime Minister said that the reduction in the numbers crossing by boat was mainly because of the deal with Albania, not the other countries that we are now dealing with. Will he return to my noble friend’s question about numbers? The Rwandan Government have said that the total they can cope with is 200. Put that against the 30,000 to 40,000 who are coming in boats: it is a very small percentage, and will not therefore reduce the amount of money spent here to address the issue. It really is disingenuous to try to tell us and others that it will be all right, and we will not have that expense here because people will go to Rwanda, and we have covered that. It simply is not going to happen that way.

[Lord Sharpe of Epsom (Con)]

My Lords, in answer to the first part of the question, of course the Albanian returns agreement is a factor in this. No one is denying that or trying to claim otherwise. I think the number of Albanians we have sent back to Albania is 5,000 so far this year—I cannot remember the precise detail. As I keep saying from the Dispatch Box, and will have to keep repeating as it is the true answer, the numbers in this scheme are uncapped.

[Lord Hacking (Lab)]

My Lords, if I can just come back again on the issue of money, I have a figure in front of me of £240 million and then £60 million, and that is the Rwanda policy. The Minister rightly draws attention to the daily cost of those kept in various facilities, including hotels—I think he said it was £8 million per day—but the execution of the Rwanda policy will not remove that. There will still be indigenous costs of looking after the migrants who remain here. One has to be worried that so much money is being spent in the direction of the Rwanda policy; there is so much need for money to be used elsewhere—in the National Health Service, in schools and so forth. Therefore, it must be a great worry to all of us that so much money is going in the direction of the Rwanda policy.

[Lord Sharpe of Epsom (Con)]

What is a great worry to the Government is that the costs of the migration system, as I mentioned earlier in answer to my noble friend, have doubled to £4 billion this year. As the noble Lord has just rightly referenced, we are spending £8 million a day on hotels. That is clearly unsustainable and I do not think it represents value for money.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, my noble friend Lady Taylor asked the Minister a simple question: have Ministers been required to issue letters of direction to instruct civil servants to proceed with this, because of the issues with this scheme? The answer is either that, yes, they have, or no, they have not. Which is it?

[Lord Sharpe of Epsom (Con)]

The answer is that I do not know. I will have to write to the noble Lord.

[Lord Davies of Brixton (Lab)]

My Lords, for those who are a bit slow with their arithmetic, £8 million a day is £3 billion a year, added to the cost of the policy itself. Is it not clear that it would be better to spend that money on clearing the backlog and dealing promptly with arrivals? That would be a real deterrent. This leads to the suspicion, which the Minister can confirm or deny as he wishes, that the Government do not want these cases assessed because so many of them would be accepted.

[Lord Sharpe of Epsom (Con)]

That is an interesting conclusion to draw. The simple fact is that we are also clearing the backlog; as noble Lords know, the commitment is to clear it by the end of this year. If we stopped spending the £8 million a day on hotel costs, what would the noble Lord suggest we do with those who are seeking asylum?

[Lord Berkeley (Lab)]

My Lords, how many British Government officials will be sent to Rwanda to process these people, and what is the cost of that? And if the asylum seekers are granted asylum, are they paid a fare to come back or are they told to get back on their own?

[Lord Sharpe of Epsom (Con)]

My Lords, the point of the scheme is that if they are granted asylum then they stay in Rwanda. As for the precise costs of the officials who will be based in Rwanda, I do not have those figures yet, but as soon as I do I will make sure the House is aware of them.

House adjourned at 2.06 pm.

UK-Rwanda Partnership

Lord Sharpe of Epsom Excerpts

Thursday 7th December 2023 Lords Chamber

[Lord German (LD)]

My Lords, there is no doubt that this is a mess. It is a mess in which the Government have written themselves a project so bad that we are ending up with an ineffective, expensive and unworkable policy which lacks in human decency. What we should be receiving is a Government that give us a workable solution which is speedy, effective and humane. Adding to that, and worse, it is now pitting the Government against our courts. This is a dangerous path to follow. It risks our freedoms and liberties under the law against excessive overreach from Government.

Disapplying legal protections to a specific group is a threat to anyone who may need the protection of a judge in future. Human Rights are universal: either you have them or you do not. If you take them away from one group of people, they are no longer human rights; they are rights for some humans. It is a dangerous, slippery slope when the Government seek to disapply them to asylum seekers. Which group of people out of favour with the Government will be next?

In effect, we are being asked to believe that the facts established by the Supreme Court are now wrong—in essence, that black is white. When the Supreme Court ruled unanimously that Rwanda was unsafe, based on a whole range of facts, but said that at some stage in future things might be different, there was no expectation that this could be achieved by last Monday. One simple line taken from the Government’s Statement proves just that:

“Rwanda will introduce a strengthened end-to-end asylum system”.


It does not say “has introduced” but “will introduce”. The fact will be demonstrated by seeing a new system in place, not simply by producing a statement of expectation. The Statement is simply incorrect in stating that these Supreme Court matters are “concerns”. They are not; they are facts. That is what our highest court ruled on: the facts. Will the Minister acknowledge that the Supreme Court ruled on the basis of facts?

Let us have some facts. By when, exactly, will Rwanda have introduced a strengthened end-to-end asylum system that meets all the international treaties, laws and rules to which the United Kingdom has signed up? What will be the cost of the creation of a new, specialist asylum appeals tribunal in Rwanda and who will meet it? What will be the ongoing annual costs of the running of the tribunal, including the salaries of judges from across the Commonwealth?

How much are the UK Government setting aside for paying for the provision of legal services to asylum seekers in Rwanda? How will the judges be selected? How can we be assured that the judges will be mindful and live to the protection rights of people with protected characteristics—for example, sexual orientation, women who have experienced gender-based violence, religion or race?

There is an alternative to this unworkable, expensive and inhumane policy. We need an effective asylum system where decisions are made swiftly and accurately. We need effective, humane removals of those whose asylum claim is refused. We need a range of workable safe routes so that people who need protection can get to the United Kingdom safely, including an enhanced resettlement scheme, a humanitarian visa and a more effective family reunion route. There is an alternative.

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

My Lords, if there is an alternative, I did not hear one.

The noble Lord, Lord Coaker, asked whether I was invited on to the “Today” programme. I am sorry to disappoint him, but I was not. And I was not necessarily as disappointed as the noble Lord was.

The partnership with Rwanda is now set out in a new treaty, which is binding in international law. It has been agreed by the UK and the Government of Rwanda and was worked on by both parties with close care and attention. It was laid in Parliament yesterday. The treaty, crucially, addresses the conclusion from the Supreme Court on the risk of refoulement to those relocated to Rwanda. I will come back to the Supreme Court decision soon.

The treaty is binding in international law, and it makes it clear that Rwanda will not remove any individuals relocated there to a third country, ensuring that there is no risk of onward refoulement. Relocated individuals will be given safety and support in Rwanda. Those not granted refugee status or humanitarian protection will instead be granted permanent residence so that they are able to stay and integrate into Rwandan society. Once individuals are relocated to Rwanda, they will have their needs looked after while their claims are being considered, including having safe and clean accommodation, food, healthcare and amenities. People are free to leave if they wish and will not be detained.

Far from pitting us against the courts—as the noble Lord, Lord German, alleged—we are responding to them. The treaty does not override the Supreme Court’s judgment; rather, it responds and adapts its key findings to ensure that the policy can go ahead.

The court recognised that changes might be delivered in future which would address the issues that it raised. These are those changes. We believe they address the Supreme Court’s concerns and now aim to move forward with the policy and help put an end to illegal migration. I remind noble Lords that the Supreme Court’s judgment was based on a very specific time in the past; a lot has been done since.

The new treaty—again, this goes to some of the facts that the noble Lord, Lord German, was asking for—also sets out how the independent monitoring committee has been enhanced and will play an important role. It will ensure that obligations under the treaty are adhered to. It will also, in practice, prove that the monitoring committee has the power to set its own priority areas for monitoring and will have unfettered access for the purposes of completing assessments and reports. It will monitor the entire relocation process from the beginning, including initial screening, to relocation and settlement in Rwanda.

The monitoring committee will be responsible for developing a system to enable relocated individuals and legal representatives to lodge confidential complaints directly to the committee. These can be regarding any concerns about the treatment of individuals or alleged failure to comply with the obligations in the treaty. This will provide an additional layer of assurance and ensure that the asylum decision-making process is robust and identifies any issues at an early stage. The monitoring committee will undertake real-time monitoring of the partnership for at least the first three months.

The treaty will also strengthen Rwanda’s asylum system through a new appeal body under its courts system—the noble Lord, Lord German, asked me about that. That will have Rwandan and UK Commonwealth co-presidents, all decisions will be reviewed by the co-presidents and they will be responsible for selecting and appointing the ordinary judges, who can be a mix of nationalities. There will be an independent expert on asylum and humanitarian protection law, providing advice to the panel before any appeal is determined for the first 12 months.

Our aim must be to deter the dangerous and illegal journeys to the UK and disrupt the business models of the criminal gangs. I think we can all agree on that.

The noble Lord, Lord Coaker, asked me about costs. I remind the House that the costs here are massive—and they are not just in money but also in lives. We saw an example of that in French waters only a couple of weeks ago. So far, however, the UK has provided Rwanda with an initial £140 million to assist in the economic development of Rwanda and with upfront operational costs. We will not be providing a running commentary on other costs. Those focusing solely on the costs of this partnership are missing the point. It is incredibly frustrating for British people and the taxpayer to spend billions of pounds to house illegal migrants in hotels. Criminal smuggling gangs are continuing to turn a profit using small boats, and we must bring an end to that.

The Prime Minister, far from pleading, was explaining this morning, and he explained that there is a narrow exception

“if you can prove with credible and compelling evidence that you specifically have a real and imminent risk of serious and irreversible harm”.

We have to recognise that as a matter of law, and if we did not we would undermine the treaty we have just signed with Rwanda—as the Rwandans themselves made clear.

To conclude, the numbers to this scheme are uncapped, so I cannot give any estimation of how many may end up in Rwanda. To reassure the noble Lord, Coaker, I am on the side of the Government. I drink my coffee black and do not like milk very much. He will also be very reassured to hear that my happiness is abundant.

[Lord Cormack (Con)]

My Lords, the seventh paragraph of the Statement that was delivered in another place yesterday says that the Government will introduce legislation next week

“to give effect to the judgment of Parliament that Rwanda is a safe country, notwithstanding UK law or any interpretation of international law”.—[Official Report, Commons, 6/12/23; col. 433.]

Can my noble friend explain precisely what that means? Will he also share with the House how we will measure success, and whether we expect to have 100 people sent to Rwanda next year, or 200, or 1,000? Could he give us a rough idea of what figure the Government expect to reach to be able to achieve success?

[Lord Sharpe of Epsom (Con)]

I point my noble friend to Clause 1(6) of the Bill, which actually outlines what international law means; it is a non-exhaustive list. Regarding how we will judge success, I think we are already seeing some. As the Prime Minister mentioned this morning, a number of crossings have been deterred, and the numbers are down on last year. Success in its entirety will involve putting the criminal gangs out of business once and for all.

[The Lord Bishop of Worcester]

My Lords, I apologise for being slightly delayed for the consideration of this Statement. My understanding is that the Bill disapplies certain sections of the Human Rights Act 1998 to allow public authorities to operate in a way that is incompatible with international obligations. If that is the case, surely that means disregarding the human rights of people seeking asylum, and I struggle to see what human rights can mean if they are not conferred on all human beings. I will be grateful if the Minister can comment on that. I will also be grateful—as would all of us on these Benches—for some clarification of the status of tier 2 ministry religion visas, in light of the new financial threshold. Perhaps it would be possible to have a meeting about that.

[Lord Sharpe of Epsom (Con)]

Regarding the second point, that question was asked the other day in a different context, and I suggested to the right reverend Prelate who asked me that perhaps the Church should look at paying its vicars more. After all, it is one of the more sizeable landowners in this country and can probably afford it. The Human Rights Act is disapplied in a couple of very specific circumstances, which are outlined in Clause 3 of the Bill.

[Lord Liddle (Lab)]

I will follow up on the question from the noble Lord, Lord Cormack. Setting aside the arguments about the law and human rights and all that, the basic justification for this policy is that the Rwanda scheme would offer a deterrent which is necessary to stop channel crossings. It is therefore of fundamental importance to the argument to know how many people can be sent to Rwanda under the scheme. The Court of Appeal said that 100 were allowed. Will the Minister therefore contradict the Court of Appeal and tell us the real number, and will he tell Conservative Central Office to stop putting out propaganda that thousands of people can be sent to Rwanda, which is just ridiculous?

[Lord Sharpe of Epsom (Con)]

From the noble Lord’s last remark, it sounds like he has answered his own question. However, as I said in my opening remarks, the numbers are uncapped. I do not know the context of the Court of Appeal judgment in this regard, so I cannot comment on that.

[Lord Kerr of Kinlochard (CB)]

I have two questions for the Minister. First, Article 19 of the treaty says that we are under an obligation to take a “portion”—an odd word—of Rwanda’s “most vulnerable refugees”. A two-way flow of people is envisaged, some going from here to Rwanda, some going from Rwanda to here. Can the Minister give us a forecast ballpark figure of how many Rwandans are coming? Secondly, he will remember that last year the State Department found the Government of Rwanda guilty of arbitrary murder, torture, cruel and inhuman and degrading punishments, arbitrary detention in harsh and life-threatening prison conditions, carrying out murders and kidnappings abroad and harassing domestic and international human rights groups. Our Bill requires us to deem Rwanda a safe country. Will he tell us why the State Department is wrong?

[Lord Sharpe of Epsom (Con)]

In answer to the first part of the noble Lord’s question, Section 19 of the treaty indeed says that the UK will resettle refugees from Rwanda to the UK. This is not new; it was also set out in the MoU. As I have mentioned before from this Dispatch Box, Rwanda currently hosts and provides for around 130,000 refugees from across the region, and as part of our joint commitment to the principles of the refugee convention, and through the partnership, we have offered to settle particularly vulnerable refugees hosted in Rwanda, whom we could better support. Rwanda is leading in supporting the UNHCR and neighbouring regions with those in need of resettlement, and the UK will support these best efforts as its partner. We expect the number to be small. However, the UK resettles many refugees each year, through safe and legal paths from those first safe countries which accommodate many people who seek their sanctuary. As the MEDP has not yet been operationalised, there have not yet been any refugees from Rwanda resettled in the UK as part of it.

The second part of the noble Lord’s question was on the State Department. We have also just published a new treaty, which contains many legally binding elements. In the light of that, I imagine the State Department will reconsider.

[Lord Jackson of Peterborough (Con)]

My Lords, will the Minister confirm for the House that this country has a dualist regime? We do not just cut and paste international treaties but pass legislation in our domestic legislature. Does he further agree with me that the Prime Minister is right that we do not subjugate that to a foreign legal entity—the European Court of Human Rights? My concern, which the Minister might want to address, is that we have had four general election manifestos by our party that committed to reducing immigration, including the last one, on which we won a strong mandate. Is it not a concern that our horizons for how we shape our legislation are shifting from that—the mandate of the people—to the ECHR and now, potentially, the political vagaries of politicians in Rwanda?

[Lord Sharpe of Epsom (Con)]

In response to the first part of my noble friend’s question, I again repeat the Prime Minister’s words. He said this morning, and I agree, that:

“If the Strasbourg court chooses to intervene against the express wishes of our sovereign parliament … today’s new law … makes clear that the decision on whether to comply with interim measures issued by the European court is a decision for British government Ministers and British government Ministers alone”.


The good news is that it is the Government, and not criminal gangs or foreign courts, who decide who should come and who should stay in our country. It is very unreasonable to disagree with the Prime Minister’s remarks. In response to the second part of my noble friend’s question, I say that this is clearly a subject of considerable importance, which has been politically dominant in recent years. I therefore commend the Government’s efforts to try to solve it.

[Viscount Waverley (CB)]

My Lords, I will add a point of detail to the question posed by my noble friend Lord Kerr. The Government are aware that, until recently, some individuals were not being deported to Rwanda from the UK in relation to genocide of old. What is the current status of any individuals who remain in the UK and why is that? If they have not been deported, why has this taken so long?

[Lord Sharpe of Epsom (Con)]

My Lords, I cannot comment on specific numbers of refugees from that particular incident. However, I can reassure the noble Viscount about the safety of the Republic of Rwanda. Clause 4 of the Bill allows that

“Decisions based on particular individual circumstances”


can be specifically exempted from some other aspects of the Bill. I will not read them, as he can read them himself.

[Baroness Hamwee (LD)]

My Lords, many of the problems that we have discussed over the months and years come from the backlog of applications to the Home Office. What does having two Ministers—one for legal migration and one for what the Government badge as illegal migration—do to address this? Also, the previous Home Secretary made it very clear that the Government’s proposals “will not work”, in her words. Is that because of her views about the European convention or does it come from some other inspiration about how to make the system work? If so, has she shared that with colleagues in the Home Office?

[Lord Sharpe of Epsom (Con)]

She is not a colleague so, no, she has not shared it. I am not going to second-guess what she was trying to say this morning; that would be foolish. As regards having two Ministers for Immigration, this is a big subject so, clearly, it deserves two. I suppose I could give a flippant answer: at least they will be able to process these claims twice as fast.

[Baroness McIntosh of Pickering (Con)]

My Lords, I absolutely support the Government’s attempts to outlaw and stop the work of these criminal gangs, but we must proceed on a safe legal basis. My noble friend has accepted that the Government are proposing to set aside part of the ECHR. Can he confirm that we are still bound by the provisions of the international convention on refugees? Does he share my concern that, if reports are correct, the Rwandan Minister of Foreign Affairs and International Co-operation issued a statement yesterday saying the following:

“Without lawful behaviour by the UK, Rwanda would not be able to continue with the Migration and Economic Development Partnership”?


Can my noble friend give me a reassurance today that that will not be the case and we will proceed by legal means?

[Lord Sharpe of Epsom (Con)]

As I said in answer to an earlier question, Clause 1(6) details international law. It includes the human rights convention; the refugee convention; the International Covenant on Civil and Political Rights of 1966; and the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984. I could go on. I suggest that we read Clause 1(6); it is very clear.

[Lord Mann (Non-Afl)]

My Lords, will the refugees from Rwanda be put up in hotels?

[Lord Sharpe of Epsom (Con)]

I really do not know how to answer that.

[Lord Lilley (Con)]

My Lords, I welcome this legislation, not least because no alternative has been put forward by any of the critics in this House. Will the Government take advice from the French Government on how to announce these matters? On 31 October, when the French Interior Minister announced that France would ignore rulings of the European Court of Human Rights, there was no outrage from anyone in this House, nor from Foreign Office mandarins, the Bishops’ Benches or the opposition parties. On 14 November, France put it into practice and deported an Uzbek refugee, despite a ruling from the European court that it should not do so and ignoring its own domestic legal procedures. There was no outcry; there was not even a BBC report of this event. In America, Biden, who originally criticised the behaviours of his predecessor, has refouled 1 million refugees across the border with Mexico in the past 18 months. If human rights are international and universal, why do they not apply in France and America?

[Lord Sharpe of Epsom (Con)]

My noble friend makes a good point, as he did earlier this week when asking his Question. I must say, since answering it I have pored over the various publications one would normally expect to make remarks about such a potential outrage, and I have found that they are few, so my noble friend is quite right to make that observation. Obviously, it is not for a Minister to comment from the Dispatch Box on what other countries are doing, but I would observe that plenty of other countries in Europe and around the world are investigating similar schemes to the one we propose. We have those conversations on a regular basis, including with countries such as Germany and Denmark.

[Lord Griffiths of Burry Port (Lab)]

My Lords, may I rephrase—or re-present—the question put by the right reverend Prelate in respect of clergymen coming to this country, which was rebuffed on the grounds that the Church of England is rather wealthy, given its endowments, and should pay its vicars more? As a Methodist—we have no land or money to back us up, and our salaries are much lower than those of vicars—may I ask whether Methodist ministers will be allowed to benefit from whatever can be benefited from in this legislation?

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for that question. I would certainly make a personal observation: he has a much better case.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, does my noble friend agree that the British people place great emphasis on the concept of fairness? A system that rewards people for undermining the existing system by trying to jump the queue cannot be appropriate and actually, it serves to bring the whole system into disrepute. Surely, we have to find a way—the British people expect us to do so—to make sure that those who work with the system and work fairly are treated properly.

[Lord Sharpe of Epsom (Con)]

My noble friend makes an extremely good point and directs me, in many ways, back to what the Prime Minister said this morning:

“illegal immigration undermines not just our border controls … it undermines the very fairness that is so central to our national character. We play by the rules. We put in our fair share. We wait our turn. Now if some people can just cut all that out … you’ve not just lost control of your borders … you’ve fatally undermined the very fairness upon which trust in our system is based.”

I agree.

[Lord Snape (Lab)]

My Lords, if this legislation is as effective as the Minister implies, can he tell the House why he thinks the Immigration Minister was wrong to resign?

[Lord Sharpe of Epsom (Con)]

No, I cannot. I have not spoken to him.

[Earl Attlee (Con)]

My Lords, it is no secret that I am not very happy with my own party at the moment. Is the Minister aware that I strongly support the policy he has outlined? The fact is that, for instance, every female asylum seeker from Afghanistan is genuine: they have a very good case. But, in answer to my noble friend Lord Cormack and the noble Lord, Lord Liddle, once the first 50 or so asylum seekers have been sent to Rwanda, is it not the case that there will be no further people risking their lives coming across the channel on small boats, because it will be pointless?

[Lord Sharpe of Epsom (Con)]

I certainly hope so. This gives me an opportunity to remind the House that part of the reason we are discussing migration on such a regular basis is that this country has been generous, as we have discussed before. There are BNO passport holders, Ukrainian visas, and ARAP in Afghanistan, as my noble friend has alluded to. I think it is well worth restating that for the record.

[Lord Cashman (Lab)]

My Lords, will the Minister give the House an assurance that the Government will not the disapply the rights of others and other minorities should judgments come from the European Court of Human Rights, or indeed the Supreme Court, that they do not agree with?

[Lord Sharpe of Epsom (Con)]

My Lords, I think I have already answered that question in terms of decisions based on individual and particular circumstances. I will leave it at that for now.

[Viscount Waverley (CB)]

My Lords, are the Government minded to consider the approach of the most reverend Primate the Archbishop of Canterbury, who spoke of a knee-jerk reaction without the long-term solutions that are absolutely required for migratory issues? Will the Government give some consideration to implementing such a solution, so that we can resolve this whole problem worldwide?

[Lord Sharpe of Epsom (Con)]

As I said when the most reverent Primate asked me the question, global circumstances would clearly suggest that that is a very good approach. Clearly, also, those conversations are ongoing in high-level diplomatic circles. But the fact is, as I said earlier in answer to my noble friend Lord Lilley, that the world is also looking for solutions to this problem on a bilateral basis.

[Lord Liddle (Lab)]

My Lords, I return to the Minister’s reply to my question about numbers, because they are important in the question of whether this will be an effective deterrent. His answer was that the scheme is uncapped, but what is the present capacity of Rwanda to take asylum seekers from the UK? The Government must know that: they have given Rwanda £140 million and are in the process of giving it more, although they will not declare that number to Parliament. What is the capacity? Is the Court of Appeal right that it is 100? Is he saying that the Court of Appeal is wrong?

[Lord Sharpe of Epsom (Con)]

The Government do know that number but unfortunately, I do not, because I forgot to ask the question this morning. I will have to write to the noble Lord; I apologise.

[Lord Ranger of Northwood (Con)]

My Lords, my noble friend is being asked a lot about numbers. I know that many people here are concerned about this policy and think about the effect it will have on people when they want to come here, because we want to dissuade those who are being trafficked and hurt. Really, the numbers we should be considering are of those who drown on the route here. I do not want to see any more women, children or men drowning in the English Channel. If this policy helps to reduce those numbers, does my noble friend not agree that we should be pushing that and ensuring that those numbers go down?

[Lord Sharpe of Epsom (Con)]

I could not agree more with my noble friend. I tried to make the point earlier that one of the principal reasons for doing this is to deter illegal boat crossings, which are dangerous not just to the asylum seekers themselves but to those who are sent to rescue them.

Strikes (Minimum Service Levels: Border Security) Regulations 2023

Lord Sharpe of Epsom Excerpts

Wednesday 6th December 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Regulations laid before the House on 7 November be approved.

Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

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

My Lords, maintaining services at our borders is essential to our security and prosperity as a nation. We depend on skilled professionals to ensure that, 24 hours a day, 365 days a year, our borders are strong and effective. The Government assess that, in the event of strike action by those charged with securing our borders, there are significant risks to the safety of our communities. Criminals may seek to take advantage of strike action to enter our country or to move illicit commodities through our ports and airports. People smugglers may seek to exploit gaps in our patrol activity to land illegal migrants on our shores.

We are focused on making the hard but necessary long-term decisions to deliver the change the country needs to put the United Kingdom on the right path for the future. It is for this reason that the Government have decided to include border security within the scope of the Strikes (Minimum Service Levels) Act 2023. These new regulations have two purposes: to make provision for minimum service levels in relation to strikes as respect to relevant border security services and to define those relevant border security services.

The regulations set out that border security should be provided at a level that means they are no less effective than if a strike were not taking place. The regulations also set out that passport services as are necessary in the interests of national security are provided as they would be if the strike were not taking place on that day. The relevant border services that must be provided are now defined as

“the examination of persons arriving in or leaving the UK; the examination of goods imported to or exported from the UK; the examination of goods entered for exportation or brought to any place in the UK for exportation; the patrol of … ports … the sea and other waters within the seaward limits of the territorial sea adjacent to the UK; the collection and dissemination of intelligence for these purposes; the direction and control of”

those engaged in providing those services; and such passport services as may be necessary for national security reasons.

As the employer for Border Force and HM Passport Office, it will be the Home Office that issues work notices to trade unions during strike action. A work notice is, to recap, a notice given in writing that identifies the members of the workforce who are required to work on a strike day and the work they are required to do to deliver the levels of service as set out in the minimum service regulations. It is important to note that the Act forbids an employer, when setting a work notice, from having regard to whether an employee is a member of a trade union or has taken part in trade union activities or used their services in the past. The trade union must then take reasonable steps to ensure that members of theirs who have been identified in a work notice do not take strike action. If the union fails to take reasonable steps, it may lose its legal protection from damages, claims and injunctions. I will return to that at the end of my speech.

The regulations stipulate that border security services can be provided only by employees of the Home Office, which will mean those who already provide border security services or the relevant passport services required in the interests of national security. This means that we will no longer need to rely on outside resource to provide cover. In the past, we have used other civil servants working elsewhere and members of the Armed Forces. We acknowledge and appreciate the efforts of those who have provided cover previously, but this cannot be a long-term solution.

We recognise that restricting the ability to strike, even in the way we are proposing, means that we need to ensure that compensatory measures are in place. The Government are therefore committing that they will agree to engage in conciliation for national disputes in relation to border security, where the relevant unions agree that this would be helpful. This is a significant and appropriate commitment that balances the ability of workers to strike with the safeguarding of our borders.

I note the amendment tabled by the noble Lord, Lord Coaker. I respectfully say that we have responded to the recommendations of the Delegated Powers and Regulatory Reform Committee. Its 27th Report of Session 2022-23, which was published on 2 March 2023, made two recommendations on what became the Strikes (Minimum Services Levels) Act. The first was that

“the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels … is likely to be exercised”.

The second was that

“the House may wish to press the Minister to provide an explanation of how the power to define ‘relevant services’ … is likely to be exercised”.

I respectfully submit that both recommendations have now been addressed through the regulations and in this debate.

I also respectfully disagree that the regulations are too prohibitive. This brings me to the Motion tabled by the noble Baroness, Lady Bennett, and to the findings of the Secondary Legislation Scrutiny Committee in its 3rd Report of the Session 2023-24, published on 23 November 2023. As I have set out, we are bringing forward these regulations to establish a fair balance between the ability to strike and enabling people to go about their daily life in the confidence that on a strike day our borders will still be secure.

Our recent experience of industrial action saw staffing levels of around 70% to 75% being delivered by Border Force. This enabled Border Force to carry out the essential functions listed in the regulations. Our estimate of the impact on HM Passport Office is that around a dozen or so personnel may be required to work. We none the less recognise that these new measures may mean that members of staff may not be able to strike. It is for that reason that we have made a commitment regarding conciliation, and I think this commitment is significant.

Turning to the question of trade unions’ liabilities, I would simply say that unions that continue to comply with trade union law are completely unaffected by this change, and therefore the issue of liability will not arise.

I call on Members of your Lordships’ House to reject the amendment tabled by the noble Lord, Lord Coaker, and the Motion tabled by the noble Baroness, Lady Bennett. I beg to move.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his introduction, although I disagree with much of it. We have heard in earlier debates from my noble friends Lady Merron and Lord Collins the general view that we have about these regulations. The law is not a substitute for proper negotiation. It is the failure of the Government to negotiate properly and reasonably with so many groups of workers that has led to this. Instead of addressing this failure of public policy, the Government have sought to undermine the right of people to take industrial action to protect their interests. Indeed, on the contrary, following the Act, regulations are put in place with huge consequences for unions and their members and workers if they fall foul of often ill-defined and ambiguous legislation. We will repeal them if we win the next election and will have no hesitation in doing so. The legislation that was outlined by the Minister to the Delegated Powers and Regulatory Reform Committee should properly have been in primary legislation, which is one of the points that the committee made and which the Minister did not answer or point out in his remarks.

I turn briefly to the regulations with respect to border security and the reasons we regret them. Can the Minister confirm that because the regulations involve employment law, they do not apply to Northern Ireland? It is important to understand what assessment the Government have made of a situation in which there was to be industrial action in Britain under these regulations but not in Northern Ireland, where, presumably, existing law applies.

Can the Minister also explain why the Explanatory Memorandum spoke—as the Minister did here—of the impacts on UK immigration, UK territorial waters and UK border security staff? He will know that the UK includes Northern Ireland but these regulations are about Britain and so do not include Northern Ireland. Can he explain why the Home Office cannot distinguish between the terminology of the UK and the terminology of Britain with respect to these regulations?

Can the Minister explain why the measures have been extended to cover HM Passport Office? This appears, whatever the Minister says, to be a last-minute addition to the legislation, going beyond the earlier indications and debates that were had with respect to the Act—hence the amendment that I have put. The impact assessment says that a small number of HM Passport Office staff—the Minister talked of 12—will be affected. Can he outline what roles that will be and whether the passport staff in Belfast, in Northern Ireland, will be affected? Presumably they will not, so what will happen? When was the decision made to extend the regulations to HM Passport Office? Why were the trade unions not consulted about that change?

The border security regulations allow an employer to serve a work notice that requires border services to be

“no less effective than they would be if the strike were not taking place on that day”.

—see Regulation 3(1). The very real question that results, as trade unions point out, is to what extent there is any reason for anyone to strike if it is not supposed to have any impact at all. How is that proportionate? That is why we regret these regulations before us.

The TUC points out how strict this short but powerful set of regulations with respect to border security is. The Government say that, to ensure the minimum service levels that they have outlined, this SI necessitates 70% to 75% of border staff working. How on earth is it proportionate to effectively deny three-quarters of the workforce the right to strike? How on earth is it reasonable or proportionate that, in many cases, only one in four workers in border security will have the right to strike? Hence, I tabled the regret amendment.

In many small ports, because of the minimum service levels, there will effectively be no right to strike at all. Can the Minister also explain, notwithstanding the points he has made about conciliation, what the conciliation process will involve? How will it actually work? Will there be frank and open discussions with the trade unions about it to ensure that a system is put in place that works?

The Government make considerable play of doing this in the interests of the public, but millions of trade union members are members of the public. Is the noble Lord sure that these regulations, interfering with the right to strike to such an extent, are consistent with our legal duties? Of course, we rightly praise our border staff and others for the important and crucial work that they do. However, in wage negotiations and conditions-of-service talks, they have been disappointed that this praise is not turned into acceptable offers when it comes to their pay and conditions. In those circumstances, and subject to a ballot, trade unions should have the right to strike. The proposed restrictions are not proportionate and can never replace fair and open negotiations based on mutual respect, even when that is difficult. It is for those reasons that I have tabled my amendment to the Motion.

Amendment to the Motion

--- Later in debate ---

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, further to the remarks made by the noble Lord, Lord Coaker, I understand that the Strikes (Minimum Service Levels) Act 2023 applies to England, Scotland and Wales. However, it is interesting that, while labour relations are devolved, Border Force, HM Passport Office and so on are not; they are reserved.

In light of this legislation, if it is important to the Government, how does the Minister intend to provide similar measures in Northern Ireland? How does he maintain the integrity of the single reserved agencies? How does he ensure similar terms and conditions for staff across the United Kingdom, given the restricted extent of these regulations? As he said, this is important legislation. I will be interested to hear how he can say that, on the one hand, it is a devolved matter but, on the other, Border Force, His Majesty’s Passport Office and so on are not because they are reserved matters. How does the Minister deal with that?

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful for all the contributions and will address the points that have been made. The noble Lord, Lord Coaker, has tabled a Motion to regret this statutory instrument because

“the draft Regulations contain policy detail that was not included in primary legislation contrary to the recommendation of the Delegated Powers and Regulatory Reform Committee; and … given that the impact assessment acknowledges that some workers’ right to take industrial action will be affected or denied… they are too prohibitive”.

I do not agree. The 27th Report of Session 2022-23 of the Delegated Powers and Regulatory Reform Committee, published on 2 March 2023, made two recommendations regarding what became the Strikes (Minimum Service Levels) Act. The first was that

“the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels … is likely to be exercised”,

and the second, as I have already said, is that

“the House may wish to press the Minister to provide an explanation of how the power to define ‘relevant services’ … is likely to be exercised”.

I respectfully submit that both those recommendations have now been addressed through the regulations themselves and in this debate.

I also respectfully disagree that the regulations are too prohibitive. The Government committed to introducing statutory minimum service levels on strike days in a range of sectors, including border security. That was to establish a fair balance between the ability to strike and enabling people to go about their daily lives. The ability for staff to take strike action is an integral part of industrial relations. However, the security of our borders is something that we cannot compromise on; that is why this measure is proportionate. We must also consider the disruption caused to, and the costs incurred by, passengers and businesses that expect the essential services they pay for to be there when needed.

The noble Lord, Lord Coaker, asked me about the consultation. We are grateful to all those who responded to it. As noted in our formal response, we received 69 online questionnaires and a further nine written responses, but we consider that those who responded have a reasonable expectation of confidentiality, which is why we have not identified them.

In the consultation we ran in the summer, we made it clear that we were considering applying these regulations to Border Force and other organisations. We invited respondents to identify any organisations they thought should be in scope. Following the consultation, we considered it important to include critical passport services in the regulations. Passport services required for the purposes of national security could include, for example, identifying stolen passports and forged documents. In practice, as I said in opening, we think that we would require around a dozen employees from the Passport Office to work on a strike day, if necessary.

Our commitment on conciliation is clear. To partially answer both noble Lords’ questions on Northern Ireland, there are issues in the background with Northern Ireland that we are working through. I will return to those subjects in writing.

The public rightly expect us to maintain a secure border—as I said, that is why this is proportionate— in balance with the ability of workers to strike. The Government believe that these new border security minimum service levels will do that. I hope noble Lords will join me in supporting these regulations, which I commend to the House.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I note that the Minister did not address my admittedly unanswerable question about the next Government. The news from the noble Lord, Lord Fox, might make us wonder when the next Government, or at least the next Prime Minister, might arrive. In light of the hour, I beg leave to withdraw my amendment.