House of Lords
Tuesday 9 February 2021
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Coventry.
Introduction: Lord Parker of Minsmere
Sir Andrew David Parker, KCB, having been created Baron Parker of Minsmere, of Minsmere in the County of Suffolk, was introduced and took the oath, supported by Baroness Manningham-Buller and Lord Evans of Weardale, and signed an undertaking to abide by the Code of Conduct.
Introduction: Baroness Foster of Oxton
Dame Jacqueline Foster, DBE, having been created Baroness Foster of Oxton, of Oxton in the County of Merseyside, was introduced and took the oath, supported by Lord Polak and Lord Parkinson of Whitley Bay, and signed an undertaking to abide by the Code of Conduct.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, others are participating remotely, but all Members will be treated equally.
After a personal statement from the noble Lord, Lord Freud, Oral Questions will commence. Please can those asking supplementary questions keep them short and confined to two points. I ask that Ministers’ answers are brief as well.
My Lords, with the leave of the House I will make a personal statement. Today, the Commissioner for Standards has published a report into my conduct. The report relates to letters, to which I was a signatory, to members of the judiciary about references provided to the court to inform the sentencing of Mr Elphicke. My motive was purely to alert the judiciary to what I considered to be an important issue of principle. However, I recognise that it was not my place to do so, and that I should not have added my name to the letters. I apologise to the House and the judiciary.
My Lords, it is a sad fact that this horrible virus targets over-75s more than any other group. We should all be proud of the country’s determination to protect the lives of the elderly and the infirm and give thanks for the vaccines that save so many lives. I assure my noble friend that the NHS has remained open to all and will catch up on the backlog for all those who need medical intervention, irrespective of age.
My Lords, we all recognise that the pandemic has had a particularly devastating impact on the elderly, with them not being able to see loved ones, isolation increasing dementia and high death rates in care homes. While I congratulate the Government on vaccinating all those in care homes, can the Minister kindly tell us when those housebound and receiving care will all be vaccinated? Will the Government consider adopting the successful Tubbe system being used in many Belgian care homes, whereby management and residents cojoin in decision-making, thus giving the residents more control of their daily lives and helping them to cope?
My Lords, we have now reached more than 80% of over-80 year-olds. Local vaccination services, of which there are more than 1,000 in England, co-ordinate the delivery of vaccinations to people who are unable to attend a vaccination site, including visiting homes, the personal homes of housebound individuals and other settings such as residential facilities for those with learning difficulties. The rollout of the vaccine to those at home is progressing at great pace and we are getting great feedback from the front line.
Is the Minister aware that many people over 75, notwithstanding their age, are providing care for family members—a spouse or an adult child with special needs, for example? Research by Carers UK shows that two-thirds of these older carers are providing more than 90 hours’ care a week, having had to take on more duties during the pandemic. One-third of them say that they are reaching breaking point and that their own health, physical and mental, has been severely affected. How will the Government ensure that sufficient support is available to these older carers, on whom so many depend?
My Lords, I pay tribute to all those elderly carers, who, as the noble Baroness quite rightly points out, provide a huge service to society, to their loved ones and to the community. We have put in place a tremendous amount of support for carers, including PPE support. We have changed the arrangements for domiciliary care so that we can restrict the spread of the virus, and we have changed the way in which domiciliary care is paid for. The noble Baroness is entirely right: we should not forget the considerable contribution made by a large number of unpaid carers, many of whom are themselves elderly.
My Lords, as well as the direct health impacts that the pandemic has brought on older people, there are the indirect effects of increasing loneliness and isolation, which can have a devastating impact too. As the country emerges from lockdown, will my noble friend ensure that the right support for mental health and other support is in place for this group, including better access to their families and loved ones through more flexibility in the use of support bubbles?
My Lords, my noble friend is entirely right about the massive mental health challenge and, if not the challenge to mental health, that of the isolation and loneliness felt by many who are shielding or isolated. Seven hundred and eighty thousand individuals over 70 are considered clinically extremely vulnerable. We have changed the terms of the shielding arrangements to give them more flexibility, and we have published the well-being and mental health support plan relating to Covid-19, which sets out steps to strengthen the support available for those who are struggling. But my noble friend is entirely right: we must do more to support and help voluntary organisations, which play a critical role, as do local authorities.
Another wave of Covid is hitting care homes at the moment. Therefore, there is an urgent need for hand-held rapid testing kits that deliver accurate and swift results. What investment is being made in biotech companies and care staff to develop a rapid testing system that works at scale?
My Lords, the innovation and partnerships team at NHS Test and Trace has an enormous programme on this. The lateral flow devices are a huge development but, as the noble Baroness undoubtedly knows, the sensitivity of a lateral flow device means that it is not necessarily appropriate for the user case that she described. We have invested in DnaNudge and other small point-of-care devices, but having a fast-turnaround device that can be rolled out in mass numbers is a challenge, and we continue to search for the ideal format.
My Lords, with the opening up of appointment slots for the fourth cohort, as announced by the Secretary of State last night, can the Minister assure all those in earlier cohorts that their second dose of the vaccine will be given in a timely manner within the 12-week timeframe, and how will this be managed?
I completely recognise the concern of my noble friend and of many in the Chamber on this point, so I shall provide concrete reassurance. Everyone will receive their second dose within 12 weeks of the first one. All those booked in at vaccination centres will have an appointment, made at the same time, to receive their second dose, and those who do not have a date today will receive one from their GP.
My Lords, the Minister will know that six out of 10 people with dementia live in their own home, so they depend on a range of care workers coming into their home—sad to say, often without PPE and some even without face masks. In contrast, those living in residential care have now gone almost a year without being allowed a visit from a loved one—they are not able even to hold their hand. Does the Minister agree that now is the time to set up a formal review in order for us to learn the lessons of the impact of Covid-19 on the over-75s suffering from dementia?
The noble Lord explains the situation of those who have been in care homes and separated from their loved ones extremely well. We all feel extremely heartbroken by the stories of people who have been separated from their loved ones, but we need to put the saving of life as the first priority. Visits have been allowed outdoors, behind screens and in safe environments. I appreciate that that is not the same as an intimate face-to-face meeting but, where we can, we have put in place guidelines to ensure that people are protected. A review of the guidelines will happen on 22 February, and that seems the right moment to review these procedures.
My Lords, the priority list from the JCVI indicates that all residents in care homes, older adults and those over 80 will be first. But, with the current state of the rollout, all those over 65 should have been offered a vaccine, and I encourage them all to step up and respond to the letter when they receive it.
I would like to ask the noble Lord about domestic abuse. Next year, ONS data collection will, for the first time, include those aged over 75 who suffer from domestic abuse. That is an important step forward. However, the pandemic has meant that many older people at risk of domestic abuse are indeed isolated and at risk. So what steps are the Government taking to collect data on the impact of domestic abuse on over-75s during the pandemic and to ensure that appropriate support is in place for older victims and survivors?
My Lords, the noble Baroness makes the point extremely powerfully. Of course, our prevailing feeling is of admiration for all those who have, through love and companionship, cared for those who are shielding or at home. But of course, as the noble Baroness alludes to, there are instances when, through either domestic tension or simple abuse, there is violence, and we cannot hide from that fact. I am not aware of a current trial or piece of research on this matter but I will take it back to the department and undertake to write to the noble Baroness with an update.
I declare a personal interest in this question. One thing that has really helped to keep elderly people informed has been broadcasts, which they have accessed through the free TV licence. I hope that the Minister will make sure that the free licence continues long after the pandemic is over.
My Lords, to reduce variation in osteoporosis services, NHS RightCare has published the pathway for falls and fragility fractures, which advises local commissioners on optimising osteoporosis services. The Government have also provided an extra £1 billion to fund elective recovery in 2021-22. Patients can also use the resources of the Royal Osteoporosis Society.
My Lords, broken bones seriously impact on the lives of the elderly, causing significant ill health and premature death. Many arise unnecessarily as a result of undiagnosed or inadequately treated osteoporosis. Is my noble friend aware that one in five women who sustain a fracture have to break three or more bones before diagnosis and that fewer than half of women sustaining a hip fracture after the age of 50 receive treatment for osteoporosis the following year? As these are unacceptable figures, with huge costs to the NHS, what action will the Government take to ensure that patients are identified, treated and managed effectively in primary care, including proper access to fracture liaison services?
My noble friend is prescient to raise this issue on a day like today, which is slippy and dangerous for those who may take a fall. He is entirely right that the early diagnosis and treatment of osteoporosis are critical for those suffering bone fractures as well as for the system as a whole. The fracture liaison service can play a key role in reducing the risk of fractures in patients and to this end it has been promoted and recognised as best practice by NHS England. As part of the falls and fragility fracture audit programme the fracture liaison service database measures participation and standards in fracture liaison services.
My Lords, the Minister has rightly pointed to fracture liaison services and the vital role they play, but only half of the population in England currently has access to an FLS, compared to 100% in Scotland and Northern Ireland. Is the Minister aware of the recent economic analysis that suggested that upscaling provision to cover all over-50s in the UK could prevent an estimated 5,686 fragility fractures every year, with net cost savings of £1.2 million? Will the Government commit to 100% coverage for fracture liaison services and if not, why not?
The noble Baroness is entirely right. There is significant regional variation in the rates of fragility fractures within the older population with the lowest incidence observed in London, the east of England and the south-east and the highest in the south-west of England, Northern Ireland and Scotland. To reduce variation in osteoporosis services in 2017, NHS England’s RightCare programme published cases studies and pathways for the management of osteoporosis and fragility fractures. The noble Baroness is right that we should have high aspirations in this matter. I am not sure that I can commit to 100%, but I will return to the department and see if we could be doing more.
My Lords, I do not have a specific interest to declare, but I have been a member of the All-Party Parliamentary Osteoporosis Group and fully support the Royal Osteoporosis Society. Will the Government commit themselves to some kind of timetable for the achievement of a comprehensive system such as exists in Scotland and Northern Ireland? Will they meet the Royal Osteoporosis Society and interested parliamentarians to discuss the specific issue of delays in access to treatment which have understandably emerged during the current Covid crisis?
My Lords, the noble Baroness is right to press me for a timetable but, unfortunately, that is not something I can commit to from the Dispatch Box today. However, I would appreciate the opportunity to meet the Royal Osteoporosis Society and will put an appointment in the diary for as soon as possible.
My Lords, given the high incidence of osteoporosis in women aged over 50, of whom 50% are affected, and low levels of vitamin D in the population, what plans are there to help increase the consumption of vitamin D, which helps prevent osteoporosis? Is the mandatory nutritional fortification of some foods under consideration?
My Lords, the CMO has recently issued new guidance on the consumption of vitamin D and there has been widespread discussion about its dosage level. My understanding is that we are leaving the matter at that for the moment. I am not aware that the mandatory application of vitamin D to food is on the runway at the moment, but I am happy to check that point and write to the noble Baroness.
My Lords, your Lordships’ House recently discussed the importance of medical research and government financial support for the fundraising and work of key charities on new brain tumour research treatments. With an estimated 3.5 million people aged over 50 currently affected by osteoporosis, many suffering chronic pain and disability, research on this is also vital. What resources does the NHS currently spend on osteoporosis research? Will the Minister undertake to consider the financial support, including match funding, that the Government can provide to the Royal Osteoporosis Society’s newly launched research academy and its potentially game-changing road map, which charts the key steps for researching a cure for this extremely debilitating disease?
My Lords, I do not have the figures for the precise amount that the Government spend on osteoporosis research at the moment, but I am happy to write to the noble Baroness with them if they are available. We are enormously grateful to the Royal Osteoporosis Society for its contribution to medical research. I can confirm that it has received a grant of £258,000 to support important work providing support for the vulnerable during the pandemic. That comes out of the package of £750 million that the Chancellor of the Exchequer announced to support the charity and voluntary sector during the Covid pandemic.
My Lords, I take this opportunity to congratulate my noble friend the Minister and thank him for his dedication at the Dispatch Box over the past 11 months. I declare my interest as a patron of the Royal Osteoporosis Society. Further to the comments of the noble Baroness, Lady Bull, is my noble friend aware that only 55% of the population in England have access to fracture liaison services, which have been shown to diagnose people with osteoporosis faster and move them on to treatment quicker? What plans do Her Majesty’s Government have to improve this and make access to fracture liaison services more available?
My Lords, the Royal Osteoporosis Society estimates that there are 95 fracture liaison services across England and Wales. While it is true that many cover more than one hospital, it should be remembered that they are non-specialist services and therefore CCGs are able to refer patients to fracture liaison services beyond their area. As I mentioned, we have a RightCare programme publishing case studies and pathways to encourage the greater rollout of best practice, but we are conscious that gaps remain and are working hard to close them as soon as possible.
My Lords, if the Minister were to go to Birmingham, he would find acclaimed fracture liaison services in the south, but in the north and east of the city they are not available, yet they are all part of the same clinical commissioning group. Will he encourage that group to ensure that there is equality of access across its geographical area and not to create a postcode lottery within it?
The noble Baroness alludes to a point slightly beyond the reach of the junior Minister in the department; we have a degree of federalisation, as she knows. However, I completely agree with and applaud the sentiment. We need more comprehensive coverage of fracture liaison services. We believe in the principle of 100% coverage, to which the noble Baroness, Lady Bull, alluded. I will look into whether we can do more in Birmingham to get a wider service.
My Lords, the Royal Osteoporosis Society points out the enormous cost to the NHS of osteoporosis-related fractures and the distress of those who suffer. This implies that prevention should be improved. Will the Minister say how diagnostic services will be enhanced in relation to, for example, bone density scans and GP practices?
My Lords, we do a lot of work on prevention. Vitamin D is made available and we have fracture liaison services to look at those who present themselves with a fracture to diagnose osteoporosis. A vast amount is already done. I am sure that more could be done, but this is an elusive and difficult to diagnose condition, which relies on those who fear that their bone density may be low presenting themselves to their GP for diagnosis.
My Lords, it is quite clear that preventive healthcare can assist here, through not only vitamin D but exercise patterns. Have the Government considered getting a comprehensive exercise plan for the over-50s that will encourage them to undertake activity that improves muscle mass and bone density, both of which protect against this?
My Lords, last year we launched a massive campaign, the Better Health campaign, to encourage healthier living with respect to both eating habits and fitness—I can report to the House that I have committed myself to that campaign and it is bearing some good fruit. We are spending hundreds of millions on marketing, we have engaged dieting services for those who wish to be involved in them, and we have mobilised a huge number of exercise regimes, including the park runs. These are bearing up well, but I encourage all those who wish to have a healthier life to do more.
Overseas Territories: Humanitarian and Disaster Relief
My Lords, the FCDO and MoD provide significant support to Bermuda and the Caribbean territories to ensure that they are ready for the annual hurricane season. The FCDO has helped to establish search and rescue capabilities in the territories, and new defence regiments in the Cayman Islands and the Turks and Caicos Islands will be trained to respond to such disasters. The FCDO continues to invest in capability building to ensure that territories are ready for a range of humanitarian and disaster operations.
The Royal Navy has a forward presence in the Caribbean during hurricane season to support our overseas territories, but the real challenge is getting access to islands once the hurricanes hit, as the ports and airports can be damaged. That is why in 2017, post Hurricane Irma, we raised two new Army Reserve units on the Cayman Islands and the Turks and Caicos Islands to deliver humanitarian assistance and disaster relief on island and open those ports. These have been a tremendous success with strong local support, and I was privileged in my military capacity to see the commissioning of the first officers at Sandhurst last year. Can my noble friend the Minister tell us whether there are now plans to raise similar units on Anguilla and the British Virgin Islands?
My Lords, I first pay tribute to my noble friend for his work during his term as Minister for the Armed Forces in creating, and being instrumental in establishing, these new units in both the Cayman Islands and the Turks and Caicos Islands, which joined Bermuda in this respect. He is quite right: these provide operational capacity and capability within the territories. No other territory has yet expressed an interest in establishing defence forces, but I assure my noble friend that we stand ready to support them if indeed they wish to do so.
My Lords, as we speak, HMS “Medway” is on station in the West Indies, providing reassurance and support, safeguarding our north Atlantic Caribbean territories and getting to know the many islands and their civilian emergency services and support facilities, so as to assist in an emergency, whether it be a hurricane, volcanic eruption or instability caused by the drugs trade. Warships can move hundreds of miles a day, and offer communications, engineers, medics, food, fresh water and resilient, disciplined manpower. Bearing in mind that we have overseas territories across the south Atlantic, in the Indian and Pacific oceans, some with the largest marine protection zones in the world, does the Minister believe we have sufficient ships to safeguard them and their resources appropriately?
My Lords, I can assure the noble Lord that we have sufficient resources, in respect of both the military operations and the support. I have myself seen the strength of having military assets within the territories during and in the aftermath of such hurricanes. We all remember RFA “Mounts Bay” playing a sterling role as first responder. I assure him that, together with our military assets and the other investments we have made, we stand ready to support our territories within the region.
My Lords, as the Minister himself has admitted, the Government reacted too slowly to the devastating 2017 hurricanes in the Caribbean. In 2018, the Government, including the noble Lord, Lord Lancaster, announced that they hoped to secure multinational co-ordination in the region. What progress has been made?
My Lords, I will look at Hansard—I do not think I admitted to that. What I did say was that we had to respond afterwards; we had assets in the region. I am sure the noble Baroness will recall that we were among the first countries to react and work with key regional partners. I can assure her that we have been investing and working with regional partners. The multinational co-ordination cell of the Caribbean is a UK concept, and we are working with key partners from the United States and France and the Netherlands and Canadian militaries to co-ordinate a large-scale response if indeed the tragedy of hurricanes should hit again.
My Lords, given the rich biodiversity of the overseas territories, where it is generally recognised that 94% of unique British species are to be found, what special assessment and consideration is given by the Government to this aspect of preparations for disaster relief emergencies?
My Lords, my noble friend is right to draw attention to the important work in this respect. The UK’s Darwin Initiative supports the OTs to increase their resilience in the face of climate change by funding projects. The CSSF has also provided OTs with over £4.6 million for capacity building through the Maritime and Coastguard Agency, and we are very proud of the 4.3 million square kilometres of MPAs within our overseas territories.
My Lords, the Government and our Navy are to be congratulated on their timely assistance to our Caribbean and other overseas territories. Does the Minister agree that recurring natural disasters are a fact of life for many, and that the best way of mitigating suffering is to facilitate co-operation between territories in the regions to share best practice and ensure the pooling and rapid deployment of resources to the affected areas?
My Lords, in an FCO press release in July 18, announcing the measures that we were taking to support the overseas territories following 2017, the Minister said we were going to work with partners for an “effective and strategic response” for future hurricanes. One of the four priorities of the Sendai framework is disaster risk governance and how we manage disaster risk. Can he tell us what mechanism the Government have put in place to support the overseas territories to do exactly that?
My Lords, I assure the noble Lord that we have done just that. In the event of a major hurricane impact, the relief and recovery unit leads on providing immediate and medium-term programme funding response. I have already referred to the multinational co-ordination cell within the Caribbean, and we work very closely with CDEMA specifically. It is based in Bermuda but, at the moment, given the Covid crisis, it is set up on a virtual basis.
My Lords, the Minister said that other overseas territories have not asked to have reserve units to deal with crisis response. Will the Government consider being proactive and suggesting to some of our overseas territories that it would be a good idea to follow the example of the Turks and Caicos?
My Lords, we were proactive; in this I pay tribute once again to my noble friend. It was he who wrote to me and we then acted together; he facilitated the training. However, I take on board the noble Baroness’s point, and we will continue to present the benefits of such regiments to all the territories.
My Lords, climate change is the context in which this conversation is happening. Given the marine diversity and repository of so much of the world’s biodiversity in the overseas territories, how will the Government ensure that the voices of the overseas territories will be amplified in the forthcoming COP 26 summit?
My Lords, I declare my interest as a trustee of the UK Overseas Territories Conservation Forum. My noble friend the Minister will be aware of the environmental disaster affecting the coral reefs in the Caribbean, caused by stony coral tissue loss disease. This will have an enormous knock-on effect on tourism and, consequently, the economy of these overseas territories. Our noble friend Lord Goldsmith of Richmond is being extremely helpful with the environmental side, but will the Minister look into what further the FCDO can do to assist and avert what potentially could be a real disaster for those overseas territories?
I assure my noble friend that my noble friend Lord Goldsmith does not carry responsibilities only in Defra; he is also a Minister at the FCDO, and his views are well represented in our discussions on the point that my noble friend raises.
My Lords, when the United Nations sustainable development goals were agreed in 2015, resilience from the shocks of extreme weather events was a key element of the purpose behind agreeing them in such a comprehensive fashion. In their discussions with the overseas territories and others, will the Government ensure that setting a framework within the sustainable development goals is part of the long-term strategy for improving resilience to extreme weather events, rather than just reacting to them?
My Lords, sending disaster relief can be less than successful and very expensive. There is thus a case for overseas territories having their own reserve units. As an example of those set up through my noble friend’s help, the Caymans and the Turks and Caicos have their own units. I believe that the Channel Islands have had reserve units for two or three centuries, or more. For how many other British Overseas Territories would it be viable to have their own reserve units?
I assure my noble friend that we are taking the example of the territories that have established these reserve units to see how others can build up their capacity and capability. I continue to engage with my noble friend who initiated this process. I assure my noble friend Lord Flight further that the overseas territories work very much in a collaborative fashion, as I have seen myself, whether in the sharing of assets or training, or in learning from each other. We as a Government facilitate those discussions.
Online Gambling: Stake Limits
To ask Her Majesty’s Government, further to the announcement by the Gambling Commission on 2 February of new protections and controls for those who gamble through online slots games, what plans they have to introduce measures to apply stake limits to online gambling.
My Lords, we welcome the Gambling Commission’s new measures on online slots games, which will help to reduce the intensity of play and protect vulnerable people. We are seeking evidence on the case for and against further controls, such as stake limits, as part of the Gambling Act review. It will be an evidence-based review to ensure that we get the right balance between respecting freedom of choice and preventing harms.
My Lords, I thank the Minister for her response but I was concerned by the Government’s apparent complacency. Only last week, shocking research by Oxford University revealed the devastating impact on the health of those who gamble more than they can afford, including an increased likelihood of suicide. That shows the urgent need for measures on affordability and tighter restrictions on advertising, for example. If the Gambling Commission also proposes online stake limits, will the Government ensure their early introduction without waiting for the outcome of the gambling review?
I cannot accept that this Government have been complacent about reviewing measures in relation to gambling and protecting vulnerable people. We have made a number of changes, most importantly in recently announcing the full-scale review. We will continue to implement things as quickly as they are needed and not wait for legislation.
My Lords, my noble friend may be aware that our former Select Committee on Financial Exclusion, of which I was a member, learned that gambling companies deliberately targeted the most vulnerable in our community. They knew exactly who was watching TV at three in the morning. With the tidal wave of increased advertising, is it not time, given the severe damage being caused, for the Government to consider a precept or special tax on these companies to offset the increased costs in health and social care resulting from abuses that are clearly taking place in our country?
I thank my noble friend for his question. As we have said, we are considering all options in this regard but have also made major commitments to increasing provision for those who are negatively impacted by gambling. We hope very much that the evidence arising from the review will shape that thinking going forward.
My Lords, I refer to my interests as set out in the register. Does my noble friend agree that if a limit on stakes for online prizes is introduced, as I think it should be, then such limits must apply equally to the maximum stake for all National Lottery online instant win games, which is currently £10?
The current maximum stake for National Lottery online instant win games has actually been changed to £5, following the Gambling Commission’s decision to withdraw all £10 online instant win games last summer. The National Lottery is regulated under a separate framework from commercial gambling, which reflects the lower ratios of harm observed there.
My Lords, on the plus side, it is noticeable how advertising is now more strenuous in warning about the dangers of gambling. But specialists in addiction tell us that the mere act of suggestion—a bottle to an alcoholic, a syringe to a drug addict, and slot games or horses to gamblers—act as incentives to partake. So it is, as we have heard, the sheer frequency of advertising that is worrying. Does the Minister therefore feel that there is a genuine desire by the gambling industry to restrict the terrible damage that can affect whole families, given its obvious conflict of interests?
I obviously cannot speak on behalf of the industry but looking at advertising and marketing, direct and indirect, is a core part of the review and one of its six main aims. Two recent consultations on advertising have just closed and there will be a response soon—one in relation to the appeal of gambling adverts to children and vulnerable people, and one around advertising and selling items in video games. I think we are all aiming for the same goal of that balance between freedom and protection.
My Lords, I know that the Minister shares with me a concern about the apparently increasing number of women who are gambling, which has a huge impact on their lives and the lives of their families and children. What assessment have the Government therefore made of the number of women who suffer from a gambling disorder in the UK? Do the Government believe that we currently have the right treatment, and enough of it, to have proper intervention for women? Does the Minister feel that there are satisfactory levels of treatment and intervention?
The noble Baroness makes an important point. The latest data that we have shows that 87% of women gambled at the same level or less during the past year, while the quarterly survey that is run shows 0.3% of women gamblers identifying as problem gamblers. The noble Baroness is right that this data relates to the last year so more work and research needs to be done to understand the true extent, and therefore the need for additional treatment and support when we have understood that fully.
My Lords, it has been suggested that stake limits online may drive gamblers to the unregulated black market. The most addictive form of online gambling is slots with no stake limit. Does the Minister agree that, while concerns around the gambling black market should be addressed, these should not impede reform of the regulated sector, including online gambling?
We are very keen to address all issues, such as online slots, which, as the noble Baroness says, is one of the most harmful and riskiest forms of gambling with the highest loss ratios. That is why these recent changes which affect the design of games are so important, but we will need to navigate in the review a number of overlapping factors, including the black market.
My Lords, I wish to draw attention to my interests in the register. Gambling companies make 60% of their profits from just 5% of players and they create VIP schemes especially for high-spend customers to encourage them to play more and more—effectively, to lose more and more money. When are the Government going to ban these VIP schemes and put measures in place to ensure that what someone spends on gambling is affordable to them?
My noble friend is right to raise the issue of VIP schemes. Our understanding is that since the commission challenged the industry on this, the number of customers in VIP schemes has fallen by 70%, and the rules governing the schemes formally came into force at the end of October. We will continue to monitor them and, if further action is needed, the Gambling Commission is ready to take it.
My Lords, the Gambling Commission is, as always, playing catch-up. Does the Minister agree that it needs to be proactive? Will the Government introduce legislation under which all gambling products, prior to their launch, would be assessed for their capacity to cause social harm?
The Gambling Commission has been very active, particularly in the last year with the risks around Covid and lockdown. We are currently looking at funding, and there is a consultation out on an uplift to Gambling Commission fees, to make sure that it can keep pace with the industry.
Non-Domestic Rating (Public Lavatories) Bill
Order of Commitment
Business of the House
Timing of Debates
That with effect from 18 February until further Order debates on motions for general debate, whether taken in the hybrid House or hybrid Grand Committee, shall be time limited to one of 1½, 3 or 5 hours, and that this time limit may be varied in accordance with this Order with the unanimous agreement of members taking part at the commencement of proceedings.
My Lords, on behalf of my noble friend the Leader of the House, I beg to move the second Motion standing in her name on the Order Paper. This Motion will give us more flexibility in how we are able to schedule general debates, which since last May have been automatically time-limited to three hours. When scheduling such debates in future, any one of the three time limits set out in the Motion could apply. This was discussed and agreed at the last meeting of the Procedure and Privileges Committee and is the same system that exists for SIs, which has worked well.
Business of the House
Motion on Standing Orders
That, in the event of the Ministerial and other Maternity Allowances Bill having been brought from the House of Commons:
(1) Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Thursday 25 February to allow more than one stage of the Bill to be taken on that day;
(2) The report of the Committee on the Bill shall be received forthwith, whether or not the Committee amends the Bill, and no amendments shall be tabled for consideration on Report; and
(3) In accordance with Standing Order 48 (Amendments on Third Reading), amendments shall not be moved on Third Reading.
My Lords, the Ministerial and other Maternity Allowances Bill was introduced to the House of Commons on Thursday last week. It is expected to be taken through all of its remaining Commons stages on Thursday this week. The Bill will have its Second Reading in this House on Monday 22 February, for which the speakers’ list is open. This Motion will allow us to take the Bill through its remaining stages on Thursday 25 February. The Motion provides for a substantive Committee stage, but not for a Report stage. In accordance with Standing Order 48, amendments will not be possible on Third Reading. Noble Lords will be able to table amendments for Committee between the point at which the Bill arrives and 4 pm on Monday 22 February. Any amendments will be marshalled and grouped in the usual way. I am grateful to the Legislation Office for the arrangements it has put in place. I beg to move.
My Lords, this is a short, necessary Bill and the procedures are right to ensure it is in place in time for the Attorney-General’s maternity leave. We support it and particularly welcome the agreement with the Government for the Front-Bench teams in the Commons and the Lords to meet and go through related areas, such as paternity and adoption leave, and consider how they can be taken forward later this year. Indeed, we on these Benches look forward to the day when all women can get the maternity leave and pay which means they can take the time off to care for a newborn without a dramatic fall in income.
Arrangement of Business
Announcement of Recess Dates
My Lords, I thought this would be a convenient point to confirm the arrangements for the Easter Recess. Subject, as is always the case, to the progress of business, we will rise at the conclusion of proceedings on Thursday 25 March and return on Monday 12 April. I will place a copy of these dates in the Royal Gallery.
UK Shellfish Exports
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Monday 8 February.
“We have a long-standing trade in live bivalve molluscs to the EU from UK waters. This has benefited both our own shellfish industry and EU restaurants and retailers, which rely on these premium products from the UK.
Recently, concerns have emerged for our trade in live bivalve molluscs to the EU coming from UK class B production waters that have not been through purification or have not cleared testing. The European Commission has changed its position in recent weeks. It advised us in writing in September 2019 that the trade could continue. We shared the Commission’s view and worked with the industry on that basis, and that included explaining that for one small part of the industry—wild harvested molluscs from class B waters—there would need to be a pause while we awaited new export health certificates to become available in April, but that, in line with the guidance from the EU, trade in the molluscs from farms could continue uninterrupted.
We continue to believe that our interpretation of the law and the EU’s original interpretation is correct, that the trade should be able to continue for all relevant molluscs from April, and that there is no reason for a gap at all for molluscs from aquaculture. However, last week the Commission gave us sight of instructions that it sent to all member states on 3 February, stating that any imports into the EU from the UK of live bivalve molluscs for purification from class B waters, such as the sea around Wales and the south-west of England, are not permitted. Exports from class A waters, such as we find around parts of Scotland, may continue.
Bringing an end to this traditional and valuable trade is unacceptable, and I recognise that it is a devastating blow to the businesses that are reliant on the trade. While we do not agree at all with the Commission’s interpretation of the law, we have had to advise traders that their consignments may very well not be accepted at EU ports for now. I am seeking urgent resolution to this problem and have written to Commissioner Kyriakides today. I have emphasised our high shellfish health status and our systems of control. I have also said that if it would assist the trade, we could provide reasonable additional assurances to demonstrate shellfish health, but that this must also recognise the existing high standards and history of trade between us. It is in the EU’s interests to restore this trade. Many businesses in the EU had invested in depuration equipment and are configured around managing the export of molluscs from class B waters.
We have met the industry several times, and it is of course extremely concerned. We are working well with the Shellfish Association of Great Britain, which is taking up the issue in meetings with European counterparts. The molluscs affected include mussels, oysters, clams and cockles. In general, the scallop trade is less affected. Scallop exports may instead undergo pre-export testing, as was the case before exit. However, we know some businesses have not traditionally been working in that way, and we are discussing with them how we may help. The issue does not affect molluscs landed in Northern Ireland. It does, however, affect movements from GB to Northern Ireland.
I know that this issue will be of great concern to many exporters around the country. The Department for Environment, Food and Rural Affairs will continue the technical discussions with the European Commission, and I will update the House with any developments in due course.”
My Lords, in the Commons yesterday George Eustice once again tried to portray the fishing settlement as a good deal, whereas the truth is that it is unravelling as we speak. It is no wonder UK fishers feel angry and betrayed. You would have thought that the negotiations of the trade and co-operation agreement would have tied down the future access of live bivalve molluscs to the EU at the time of the agreement, rather than as an afterthought when damage to the sector has already been done. As a result, hundreds of tonnes of stock have had to be dumped and the multi-million-pound industry has ground to a halt.
These are more than teething problems. The future of the sector is at stake. The Minister has described the negotiations as technical discussions, but what is to stop the EU reopening other aspects of the fishing deal in return for a settlement on live molluscs? In the meantime, can the Minister clarify exactly what compensation will be made available to those whose livelihoods are affected by the loss of that EU market? Will they have access to the £23 million disruption fund made available for other fishers whose markets have been disrupted? Will the Government consider increasing this fund now that many more fishers appear to need compensation?
[Inaudible]—to Commissioner Kyriakides, because we want to restore the trade in undepurated live bivalve molluscs. That is the issue here. We think that the interpretation that the Commission has come to is not correct, and we wish to have discussions with the Commission about it. A 25% uplift in fishing opportunities is an important part of the trade and co-operation agreement, and we will be working on that. As the Government have announced, not only is there a £23 million fund for those who have been in difficulty in these early stages but we will invest in a £100 million fund for fishing over the next three years. There is a lot of promise and a lot of opportunity for British fishing interests and the shellfish industry as well.
My Lords, it is unfortunate for the Government that the BBC is currently screening its series on the Cornwall fishing industry, filmed last year. All see the dramatic effect on the Cornish crab industry of the withdrawal of the Chinese market, and now the EU is refusing to take its shellfish, which was previously acceptable. The Statement says that scallops are less affected than other bivalve molluscs. This is not the impression that I am gaining from the television coverage of the scallop fisheries in Scotland. However, can the Minister explain what the exact problem is with the class B waters around Wales and the south-west? If these waters were acceptable before 3 February, why not afterwards?
The noble Baroness has hit on why we wish to have discussions with the Commission. It interprets the matter as being one of public health. The point is that all molluscs exported from class B waters have to be depurated. That is undertaken by businesses near to the market on the continent, and it is on that we are seeking redress. The Commission made it clear in September 2019—and I can put copies of the correspondence in the House Library along with the letter to the Commissioner—that molluscs exported for purification can be certified. We therefore think that there is an issue that we need to clarify.
My Lords, is not this and other measures taken recently by the EU to punish the UK for leaving its jurisdiction a flagrant abuse not only of the EU’s own laws but of several international laws such as the WTO SPS agreement, which states that WTO members
“shall accept the sanitary or phytosanitary measures of other Members as equivalent, even if these measures differ from their own”—
ours, of course, are identical—as well as the recent TCA, which states that each party shall ensure that SPS measures
“are not applied in a manner which would constitute arbitrary or unjustifiable discrimination against … the other Party’s territory where identical or similar SPS conditions exist”,
which they do in this case? I hope that my noble friend will make this lawlessness apparent to this House, which always maintains the importance of upholding international law.
Again, my noble friend is correct to raise this point. It is why the Secretary of State wrote to Commissioner Kyriakides yesterday. We wish to meet her and her officials, because we simply do not understand the legal interpretation of what has come out of the Commission very recently, which is entirely contrary to what we had been told previously.
My Lords, the Minister will be aware that molluscs cannot be transferred across the United Kingdom, from Great Britain into Northern Ireland, all due to the Northern Ireland protocol. Is he aware that there is today a meeting between the European Union and the Irish Government to reach an agreement whereby all new laws introduced by the EU which may affect Northern Ireland will first have to be submitted to the Dublin Government for their approval? This is a united Ireland in operation and in practice. The approval of events in Northern Ireland is now subject to the control and decision of Dublin and not of London.
My Lords, what the noble Lord has said is important. The working of the Northern Ireland protocol and the fact that Northern Ireland is part, clearly, of the United Kingdom, our quartet of nations, are why the meeting that the Chancellor of the Duchy of Lancaster will have with the Vice-President of the Commission on Thursday is important. We wish to conduct trade as good neighbours, but within the context that we are a United Kingdom.
My Lords, I have recently been in touch with my friend Ronnie Norquoy, who operates boats from Orkney. He tells me that this ban is only the latest in a series of crises: first, the restriction of the China market; secondly, Covid closing the hospitality sector market; thirdly, the wave of red tape and export chaos caused by Brexit; and, now, the Seafood Producers Resilience Fund, which barely covers two weeks of his operating costs. These are not teething troubles. When will the Government get serious about rescuing this vital sector that is fast going out of business?
My Lords, that is precisely why we wish to discuss with Commissioner Kyriakides a situation that we do not think is founded on a correct interpretation of the law. It is clear that the fishing and shellfish industries are going through difficulties, as the noble Lord said, partly because of a reduction in demand due to Covid and partly because of issues that we need to resolve. However, in the long term this is a very important part of our food supply and we will support it.
My Lords, it is frustrating that the EU is behaving in the way it is on so many issues. Would be it possible to get the class B waters up to class A, as in Scotland? Is it economically feasible to have our own processing and cleansing plants here, so that we can produce the end product rather than having to let the Europeans do that for us?
My noble friend makes an important point, which is that we all need to work on improving water quality—it is part of the 25-year environment plan and it is addressed in the Environment Bill. We believe that the depuration capacity in GB is sufficient to depurate all oysters produced in GB, but there is insufficient cover for the depuration of mussels, for instance. The £100 million fishing fund could be used to support traders setting up, for instance, a depuration centre. We will continue to explore all those options.
My Lords, UK shellfish catches were valued at £393 million in 2019, so this is a very serious matter for the fishing industry, especially in the south-west. Is this not yet another example of a loose end left over from a botched negotiation with the EU over Brexit? Does the Minister now think that Brussels is trying to punish the UK for leaving the EU?
My Lords, the Secretary of State has written to Commissioner Kyriakides in a very friendly and a constructive spirit. This issue relates to undepurated live bivalve molluscs and we are now addressing it. I hope that the discussions will resolve this matter so that this important trade can be resumed. It is important for exports; it is also important to all those businesses on the continent that have set up depuration outlets because they wish to be close to the final destination market. I think that this is where discussions with the EU will be very important.
Arrangement of Business
My Lords, hybrid proceedings will now resume. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.
These proceedings will follow guidance issued by the Procedure and Privileges Committee. Since there are counterpropositions, any Member in the Chamber may speak. Any intending to do so should email the clerk or indicate when asked. All speakers will be called by the Chair. Short questions of elucidation after the Minister’s response are permitted but discouraged. A Member wishing to ask such a question, including Members in the Chamber, must email the clerk.
The groupings are binding. When putting the Question, I will collect voices in the Chamber only. Where there is no counterproposition, the Minister’s Motion may not be opposed. A participant, whether present or remote, who might wish to press a counterproposition to a Division must give notice to the Chair either in debate or by emailing the clerk. If a Member taking part remotely wants their voice accounted for, if the Question is put, they must make this clear when speaking. Noble Lords following proceedings remotely but not speaking may submit their voice—Content or Not Content—to the collection of the voices by emailing the clerk during the debate. Since there are two counterpropositions but only one debate, a Member who does any of these things must make it clear which Motion they are referring to: B1 or E1. Members cannot vote by email. The way to vote will be via the remote voting system.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Commons Reasons and Amendment
Relevant documents: 10th Report from the Joint Committee on Human Rights, 19th Report from the Constitution Committee
1A: Because the Commons consider that this amendment would cast doubt on whether belief need be reasonable for the purposes of other authorisations under Part 2 of RIPA.
My Lords, I begin by paying tribute to all noble Lords who have contributed to the debates on this Bill. The quality and detail of discussion have been exceptional, and even where the Government have not agreed with the remarks of noble Lords, I recognise the value they have added to the debate. I also thank those noble Lords with whom I have discussed the Bill directly to seek to reach agreement on key issues, and I thank Opposition Front-Benchers in particular for the collaborative approach they have taken. I hope that today, we are able to reach consensus on the issues raised in these amendments, and to provide the certainty and assurance that CHIS and operational partners deserve when this Bill moves on to the statute book.
I have been clear throughout these debates that the Government’s position on this Bill is driven by the need to ensure that this important tactic remains operationally workable. We cannot risk the operation of the tactic or create unintended risk of harm to CHIS, or indeed the wider public, through damaging amendments, even where the sentiment behind them is well-intentioned. However, where we have been able to provide additional reassurances about the safeguards underpinning the power in an operationally workable way, we have welcomed the opportunity to do so. I again thank the noble Lord, Lord Anderson, for his amendments on real-time notification. I hope I can demonstrate that same approach to the amendments we will discuss today.
Amendment 1 would place on the face of the Bill the requirement that an authorising officer must reasonably believe an authorisation is necessary and proportionate. As I have previously confirmed, it is indeed the case that the belief of the authorising officer should be a reasonable one. The revised code of practice confirms this, and in response to concerns raised by noble Lords, this was further amended to make that clear. However, placing this requirement on the face of the Bill risks casting doubt on whether the belief must be reasonable when that is not specified elsewhere—for example, in Section 29 of Part II of RIPA.
However, the Government are willing to be clearer still in the code of practice and specify that
“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
I thank the noble Lords, Lord Anderson and Lord Paddick, and the noble Baroness, Lady Hamwee, for their engagement on this point, and I hope this provides the necessary reassurance on this issue.
Amendment 2 would place express limits on the face of the Bill. We have discussed at length why this is not workable and risks CHIS testing and harm to the public by enabling the development of wider initiation tests. To be clear, it is the assessment of operational partners that to explicitly rule out rape, for example, would lead to gangs asking potential members to rape people to prove that they are not working on behalf of the state.
Let me once again confirm that the necessity and proportionality tests and the Human Rights Act provide limits to the conduct that can be authorised. An authorisation that is not compatible with the Human Rights Act will not be lawful, and this is clear in the training and guidance of all public authorities. I ask all noble Lords to seriously consider, therefore, whether we should risk CHIS testing and serious harm to the public when the practical effect of Amendment 2 is not necessary. The Government will not support this amendment for these reasons, and I implore noble Lords to place weight on the advice of operational experts and do the same.
Amendment 3 relates to the criminal injuries compensation scheme. As I said earlier, the Government are listening to ways of providing additional reassurances to Parliament and the public with regard to the safeguards underpinning this legislation where that is operationally workable. Therefore, recognising the views of noble Lords on Report, we are bringing forward an amendment in lieu which makes it clear that a person can access the compensation scheme where appropriate. Therefore, I hope noble Lords are reassured on this point.
Amendment 4 relates to the authorisation of juveniles and vulnerable adults. Let me start by thanking the noble Baroness, Lady Kidron, my noble friend Lord Young of Cookham and the noble Lords, Lord Russell of Liverpool and Lord Kennedy of Southwark, for their extensive engagement on this issue. I also pay tribute to Stella Creasy MP in the other place. This is an uncomfortable area and I completely understand why many noble Lords’ starting position would be to seek to prohibit any authorisation of a juvenile. The danger of that approach is that in prohibiting their use as a CHIS you increase their use by criminal gangs, which will be reassured that a juvenile cannot be working on behalf of the state.
Amendment 4 recognises this issue, and instead places additional safeguards into the Bill. The Government agree with the sentiment of this amendment but cannot support it in its current form, as it would create operational issues that would risk unintended consequences for the young person or vulnerable adult. For example, the amendment defines exceptional circumstances as those
“where all other methods to gain information have been exhausted”.
This requirement risks the workability of the power and, crucially, the safety of the juvenile. There may be occasions where there are other ways to gain the information, but these may not be the safest way to extricate the juvenile from the situation and lead to the best outcome for the juvenile involved.
Therefore, the Government have brought forward amendments in lieu. These capture the essence of this amendment and provide significant additional safeguards for the authorisations of these groups, but in an operationally workable form. The government amendments make clear that the authorising officer is under a duty to safeguard and promote the best interests of a juvenile and that the authorisation must be compatible with that duty. This reflects Article 3 of the UN Convention on the Rights of the Child. It also applies the same statutory safeguards that are in place for CHIS use and conduct authorisations to the new criminal conduct authorisations and requires the IPC to keep these enhanced safeguards under particular review. The use of such authorisations will therefore be subject to close and independent scrutiny, through both the real-time notification process, regular inspections and the IPC’s annual report, which is laid before Parliament.
I encourage all noble Lords to read the 2019 annual report, published in December last year, and I can quote from IPCO here to provide further reassurance today. The 2019 report stated:
“In the very rare instances when a juvenile is authorised as a CHIS, we conduct a close examination of the case. We examine every such case at inspection and focus on the safety and welfare of the juvenile and check that the use and tasking (conduct) is not endangering the CHIS or leading the juvenile to associate with criminals and environments that they would not otherwise encounter.”
I also reiterate another important point relating to oversight of authorisations. It will never be the case that just one individual in the public authority is involved in the authorisation process. RIPA requires the handler and the authorising officer to be different people, while the code of practice mandates that no authorising officer can authorise themselves, so no single officer could ever take a decision without consulting others.
In addition, recognising the views of noble Lords on Report, the amendments also place the requirement for a juvenile CHIS to be authorised only in exceptional circumstances into the Bill and tighten the existing definition of “exceptional circumstances”. Such circumstances will exist only where there is no reasonably foreseeable harm to the juvenile as a result of the authorisation, and where the authorisation is believed to be compatible with the best interests of the juvenile, as per Amendment 4.
The amendments in lieu further clarify that an appropriate adult must be in place for any meetings with an individual under the age of 16, and that there is a presumption that an appropriate adult will attend meetings with 16 and 17 year-olds, with any derogation from this position justified in writing. I hope noble Lords recognise the addition of this language to the Bill in response to concerns raised previously. I can also provide reassurance that the same principles apply to the underlying authorisation of the use and conduct of a juvenile CHIS; an appropriate adult must be in place for a meeting with a juvenile under the age of 16, and justification must be provided if one is not in place at meetings with 16 or 17-year olds.
The definition of “vulnerable adults” is deliberately broad so as to capture a wide range of people—including, for example, victims of modern slavery. The amendments recognise that children are a specific subset of vulnerable individuals, due to their age. It is appropriate for there to be consistent safeguards for all juveniles, as the reason for their vulnerability is the same. It is not possible to apply the “exceptional circumstances” requirement to all vulnerable individuals, as they will be considered to be vulnerable for a wide range of reasons and will require different levels of support. The safeguards, while still robust, recognise this distinction. The amendments add additional safeguards for vulnerable individuals, however. These require that an enhanced risk assessment must be carried out; the source must be capable of understanding and consenting to the deployment and any associated risks; and consideration must be given to the best interests of the source.
These amendments provide significant additional safeguards for the authorisation of any juvenile or vulnerable adult CHIS but, crucially, ensure that there are no unintended consequences for the safety of the CHIS or the operational workability of the tactic. I pay tribute to all who have spoken on this important issue and hope that I have demonstrated the extent to which the Government have listened and, in response, sought to provide additional reassurance and safeguards.
Finally, Amendment 5 relates to real-time notification to the IPC. The Government support this amendment, but are unable to support the further amendment from the noble and learned Lord, Lord Thomas of Cwmgiedd, nor indeed the Motion from the noble Lord, Lord Paddick, which threatens the workability of the regime by giving judicial commissioners the power to unilaterally cancel an authorisation. We maintain that it is the authorising officer who is best placed to consider not only the necessity and proportionality of an authorisation but the live operational environment and safety of the CHIS. They are therefore also able to best consider comments from a judicial commissioner in the context of the safety of the CHIS. However, I reassure noble Lords that this does not mean that an authorising officer would simply ignore the comments of a judicial commissioner; they place great weight on their views and will consider any action to be taken in response to concerns. This is a collaborative process and operational partners and IPCO do, and will continue to, work closely together on issues raised by judicial commissioners.
I also reassure the noble Lord, Lord Paddick, that it is already the case that a judicial commissioner would inform a public authority if they felt an authorisation should not have been granted. They may advise the authorising officer that the activity should be reported to the relevant authority—for example, a law enforcement body or prosecutors—and it would then be for prosecutors and a court to determine whether the authorisation was lawful. While the primary responsibility for making that report rests with the public authority, judicial commissioners are also able to refer matters directly to the relevant authorities, including the prosecution services, as per the process set out in Section 232 of the Investigatory Powers Act.
I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for further discussion on this point and recognise that it would be helpful to provide clarity in the code of practice. We will therefore add language to the code which states:
“Where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken. Having consulted with a more senior officer, they must, as soon as reasonably practicable, notify the office of the Investigatory Powers Commissioner of the intended action, or where action has been taken, for example in urgent cases, of the action.”
I hope that this provides the necessary reassurance and that noble Lords will support the Government on the amendment
I hope I have sufficiently set out the Government’s position on each of these issues and demonstrated a willingness to seek agreement where possible. The Government seek to put this Bill on to the statute book as soon as possible and I therefore hope we can reach agreement on all issues today. I beg to move.
My Lords, at this stage in the journey of a Bill, I know your Lordships’ House will be mindful of its role as an unelected revising Chamber, but in the context of this Bill I humbly suggest that noble Lords be equally mindful of the serious constitutional, human rights and rule of law implications of the legislation, which was not a manifesto commitment of any party.
While mature democracies the world over have written constitutions and entrenched Bills of Rights, including ultimate strike-down powers with which their highest courts can protect fundamental rights and freedoms, that is not currently the case in the United Kingdom. Instead, the burden of protecting rights and freedoms must be more evenly shared between the judiciary and legislature. While your Lordships’ House lacks the other place’s elected legitimacy, it can in my view justify its existence at all only by having more of the independence of mind required to stand up for the most fundamental human rights of the vulnerable against state oppression, by accident or design, in the form of authorised criminality with total legal impunity.
Furthermore, the Joint Committee on Human Rights has an important role in our unusual constitutional scheme. It has been unequivocal in its critique of the ways this legislation violates the European Convention on Human Rights. Your Lordships took its clear advice, and that of my noble friend Lady Massey, in the form of the amendment banning the authorisation of certain grave crimes, in particular murder, rape and torture. The Government’s rebuttal is both circular and hollow. They argue that the grave offences in this amendment would provide a deadly checklist against which suspected undercover agents might be tested, but they also argue that the convention rights already provide these express prohibitions. This amendment might be either dangerous or superfluous, but it surely cannot be both. Which is it?
In the past, government lawyers have argued that the convention rights do not bind undercover agents of the state, and only recently, in the very litigation that provoked this Bill, they argued that agents are not precluded from committing murder. I am clear in my belief that the Human Rights Act binds undercover agents of the state, alongside the state itself. I would be grateful if the Minister could place her express agreement with that proposition on the record during today’s proceedings.
However, even that would not render this amendment superfluous, as the criminal law provides a clearer and more detailed set of instructions to all our citizens. This is essential to our nation’s compliance with convention rights. What would your Lordships’ House say if this kind of criminal immunity, without detailed limitation even for grave offences, were being passed in Russia, China or anywhere other than here? What would the Government say?
As a matter of conscience, and if only to record our grave concerns for the benefit of the litigators and senior jurists who will inevitably pick up the stitches that legislators have dropped, I will test the opinion of your Lordships’ House.
My Lords, I will speak to Motions A, C and D and my noble friend Lord Paddick to Motions B and E. I thank the Minister and the Government for their engagement on the Bill, which raised far more issues than its slim size might have suggested.
The noble Lord, Lord Anderson, proposed the way forward on the first point, along with the noble and learned Lord, Lord Thomas. They and we on these Benches would have far preferred the new Section 29B to require criminal conduct authorisations to require “reasonable belief” on the part of the person granting them that they are necessary and proportionate and that the requisite arrangements are in place—in other words, for that to be placed in the Bill. Necessity and proportionality are dependent on a belief which, as the Bill is drawn, is subjective, which dilutes the safeguards. The House agreed with us.
The Government have been concerned that, because Section 29 of RIPA—the Regulation of Investigatory Powers Act—which deals with authorisation for the conduct and use of covert human sources, requires belief only, the different wording in new Section 29B would throw Section 29 into doubt. I understand the significance of consistency in legislation, but I do not entirely follow the argument in this case, since Section 32A, which was inserted into RIPA in 2012 and deals with authorisations, including those under Section 29—I hope noble Lords are following so far—provides for judicial authority if and only if the judicial authority is satisfied that there were reasonable grounds for believing and so on. Even if the argument is restricted to consistency, our view is that the term should be included in the Bill. The Commons disagreed with this on the basis of inconsistency, which would cast the doubt to which I have referred. The Solicitor-General assured them that
“the legal position is already that the belief must be reasonable, as a matter of public law.”—[Official Report, Commons, 27/1/21; col. 425.]
We have therefore come to the pragmatic solution that the statutory code of practice at paragraph 3.10 should not, as it says in the draft of the code, say that it is expected there should be reasonable belief. The noble and learned Lord, Lord Thomas, commented pithily that nothing could be less desirable. A mere expectation should not satisfy the Solicitor-General either. It is to be replaced by the words the Minister has quoted; I would be grateful if she could ensure that Hansard knows there are to be quotation marks around them, because they could have sounded descriptive rather than the text—the same changes are to be made at paragraph 6.4 of the code of practice. As the noble Lord, Lord Anderson, has commented, the police will rely on the code of practice—I hope I have not stolen his line.
On civil redress, during the passage of the Bill there have been different approaches to ensure that someone injured during the course of authorised conduct should be entitled to redress. We were repeatedly assured that no amendment was necessary; the Minister said the Bill did not “in practice” interfere with the criminal injuries compensation scheme, a term which I queried.
The cross-party amendment led on by the noble Lord, Lord Anderson, was agreed by the House by a very substantial majority. We now have a Commons reason that it would be
“inappropriate to create an exception to the effect of”
CCAs, which rather makes our point that an amendment is necessary, but I understand the sometimes slightly obscure process of coming to the formulation of reasons. We welcome this amendment, and we are pleased that the Government have found a form of words to cover the issue that they can live with and with which we are happy to live.
Finally, with regards to children and vulnerable adults, I appreciate that a lot of people have put a lot of work in to get to this point. The House was very clear, as shown by the substantial majority in the Division, about its concern to safeguard children. Under-18s are technically juveniles, but that sounds diversionary. I admit that, then and now, I am very uneasy that we could not have achieved a complete prohibition, but we welcome the change to the Bill—though I do have some questions.
The first is on the term “exceptional circumstances”, to which the Minister has referred. We believe that any authorisation given to a child should be exceptional, but that does not seem to be quite how the clause works. Can the Minister confirm that, first, the authorising officer will consider whether there are exceptional circumstances requiring the use of a child, and that, if it is reasonably foreseeable that granting an authorisation could lead to harm to the child, it should not be granted? I believe that the same approach should apply to vulnerable adults, because each such adult and each child is an individual with individual characteristics and in individual situations.
Secondly, on the definition of “harm”, the amendment refers to physical injury or psychological distress. I asked the Minister this question privately last week, so I hope that she can help with it: does psychological distress include injury? There may be an authority in case law for that. Certainly, in everyday language “distress” does not cover the damage we know can be caused by an extreme experience. I expect we may be told that there will be a trauma-informed approach, but I would like to understand how this works for both children and vulnerable adults.
Finally, on appropriate adults and appropriate arrangements, the amendment deals with meetings to represent a child’s interests and do whatever is necessary for the child’s welfare—these are the terms used in the amendment. Is it not necessary for there to be more than a presence at meetings? I assume that an adult can intervene at a meeting, but what is the extent of the intervention permitted? Can the adult discuss the situation with the child outside the meeting, or is the term “meeting” expandable? Can the adult advise the child? Can the adult have access to discuss the matter with an authorising officer? I welcome the provision, but I am sorry that it will not apply automatically to all 16 and 17 year-olds. In the case of a child, the authorising officer must believe that the authorisation would be “compatible” with safeguarding the needs and promoting the best interests of the child. In the case of a vulnerable adult, these matters need only to be “taken into account”. The obvious question is, why the distinction? It must be that it is not required to withhold authorisation in the case of an adult if it is incompatible. I am concerned about this because we do not—and I am sure the Government do not—want to see a tick-box exercise.
We remain very uncomfortable with the thought of using any of the individuals I have referred to as spies, but I appreciate that that is not what the Bill is about. My final question to the Minister is this: will the Government consider applying these safeguards to all children used as covert sources and making that a formality, either through secondary legislation or at least through the code of practice?
My Lords, I shall speak to Motions A, C and E on the basis that each of them relates in some way to an earlier amendment in my name.
Motion A concerns Amendment 1, which I originally moved in Committee. Like the noble Baroness, Lady Hamwee, I would have preferred the requirement that belief be reasonable to have been included in the Bill. However, I welcome the fact that it will at least now be plainly stated in the code of practice at paragraphs 3.10 and 6.4 in terms that improve significantly on the earlier suggested amendment—memorably described by my noble and learned friend Lord Thomas of Cwmgiedd as the “worst of both worlds”. The new paragraphs will say plainly that
“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
Something similar has been said from the Dispatch Box, but authorising officers will perhaps have the code of practice more readily to hand than the Official Report. I welcome the new wording and, like the noble Baroness, Lady Hamwee—who, with the noble Lord, Lord Paddick, took over this amendment on Report—I do not oppose Motion A.
I turn to Motion C on the availability of compensation for the victims of authorised crimes. Lords Amendment 3, which your Lordships passed on Report by a majority of 91, provided that there was no bar to the criminal injuries compensation schemes in Great Britain and Northern Ireland being available to victims of authorised crimes. Without such a clause, it was at least possible that Section 27 of RIPA, which renders authorised activity lawful for all purposes, would have prevented such recourse. The Commons rejected that amendment, with the stated basis being that it was
“inappropriate to create an exception to the effect of criminal conduct authorisations.”
I am pleased that the Government have thought again. Their new clause is, so far as I can see, simply a competently drafted version of mine. It will mean that, should an act of violence ever be authorised, the innocent victim will not be disqualified from compensation by the fact that the perpetrator was a CHIS. It improves the Bill in a specific but potentially significant way.
Finally, Motion E originates in an amendment from my noble and learned friend Lord Thomas of Cwmgiedd. That amendment would have improved my own Amendment 5 on real-time notification, which now constitutes Clause 3 of the Bill, by underlining what I believe in any event would be the practical reality: that the disapproval of a judicial commissioner will normally result in the cessation of all further activities undertaken pursuant to an authorisation. My noble and learned friend’s amendment was not agreed to in the other place, but he has negotiated in its place an acceptable alternative in the form of an amendment to the code of practice. It begins:
“Where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken”—
not whether any action should be taken, but what action should be taken, which implies that some action will be taken.
IPCO must then be informed of that action as soon as reasonably practicable, and the Investigatory Powers Commissioner retains full discretion to take what further steps may be thought appropriate—including, as the Minister expressly confirmed on Report, passing the file on to the Director of Public Prosecutions or his equivalent in Scotland and Northern Ireland. As the Minister clarified on 11 January, at cols. 497-98 of the Official Report of your Lordships’ House, if the authorisation is determined not to have met the statutory requirements of necessity and proportionality, nothing in this Bill or in RIPA itself prevents the prosecution either of those responsible for authorising the crime or of the person who committed it.
The consequences for anyone who has unlawfully issued a criminal conduct authorisation are therefore real and give the lie to any suggestion that the real-time notification procedure is without teeth. Successive Investigatory Powers Commissioners have been among our highest-ranking and most experienced judges, well capable of deploying both the bark and the bite. This Bill, read with its code of practice, equips them for both.
In short, we have a solution on each of these three amendments which is largely satisfactory. I thank the Bill team and the Minister for their constructive and courteous engagement with operational partners over many months. The Bill is not perfect—given the intractable subject matter, that is not surprising—but it has been very significantly improved by your Lordships. We can fairly say that we have done our job, and I look forward to seeing the Bill on the statute book.
My Lords, I will speak to the two Motions on which the House will divide. Motion B asks that this House do not insist on its Amendment 2, which placed in the Bill a list of offences that a criminal conduct authorisation could not authorise. This amendment was suggested by the Joint Committee on Human Rights and was championed by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs. The Commons disagree because doing this
“would place sources, and the wider public, at risk.”
As the Minister explained, the argument goes that sources could be tested against such a list to discover whether they were a CHIS and, further, that pursuant of testing to see if a person was a source, they would ask other people who were not CHIS to commit crimes listed in Lords Amendment 2.
Those arguments were demolished by the noble Lord, Lord Anderson of Ipswich, in Committee—and the Government have, to date, failed to address them. Australia, Canada and the United States of America have similar lists and they do not present the sort of difficulty in those countries that the Government claim would occur here. In a blatant act of whataboutery, the Minister responded that these countries were different because we have the Human Rights Act and they do not. On Report, the noble and learned Lord, Lord Hope of Craighead, comprehensively demolished the argument that the Human Rights Act was sufficient, but that is not why the Commons disagrees with Amendment 2.
What has the Human Rights Act got to do with the Commons disagreement? A list is published in each of the countries—Australia, Canada and the USA—of offences that CHIS cannot be authorised to commit, and the reasons the Commons has given for rejecting this amendment do not arise in those countries. Their CHIS are not tested against the list and there is no evidence that others are tested against it either. We are not talking about a hypothetical situation of “What if there was a list of prohibited offences?” but about the fact that this has been tried in practice for many years in similar jurisdictions and the Commons’ stated concerns do not exist.
The noble Lord, Lord Anderson of Ipswich, then went on to explain why he believed publishing a list is not a problem in those jurisdictions and why it would not be a problem here. If a gang tested a member by asking them to rape and the gang member refused, it could be that the gang member has scruples that he is not prepared to set aside. I could add to the noble Lord’s example and say that the gang member may be incapable of performing an act of rape in front of an audience or that his sexuality gets in the way of his being able to rape the man or woman he is being asked to rape. There are a host of more likely explanations as to why the gang member might not commit a serious crime other than that he might be a covert human intelligence source refusing to do so simply because he is a CHIS.
To paraphrase the noble Lord, Lord Anderson, a former Independent Reviewer of Terrorism Legislation, also with direct experience of Northern Ireland, he said he found it hard to understand why a shortlist bearing no relation to the types of crime that would routinely be authorised should increase the risk to a CHIS or other members of the public or make it more likely that he would be successfully outed as a CHIS by the criminal group in which he is embedded. As a police officer of over 30 years’ experience, including direct experience of managing police informants, I do not understand either.
If the House is not convinced by our failure to understand the Commons reason, it simply needs to look at the experience of Australia, Canada and the United States to see that it does not hold water. We will be supporting the noble Baroness, Lady Chakrabarti, when she divides the House on Motion B1.
The history of Motion E1 is as follows. As the noble Lord, Lord Anderson of Ipswich, just said, he proposed—and the Government accepted—that when a criminal conduct authorisation is granted, the person granting it must give notice to a judicial commissioner as soon as practicable and in any event within seven days. As the noble Lord just said, a judicial commissioner is a current or former High Court judge especially trained to deal with the authorisation of investigatory powers such as this. Indeed, the police and the security services cannot tap someone’s phone, for example, without prior authority from a judicial commissioner and a Secretary of State. In the case of the police and the security services telling a source to commit a crime, no independent prior authority is required from anyone. Anything the police or the security services authorise the source to do is lawful for all purposes. Not only can they authorise someone to commit a crime, they can also grant complete legal immunity to that person. In Committee, my noble friend Lady Hamwee and I asked, “So what? What happens next? Once the judicial commissioner has received notice that a criminal conduct authorisation has been granted, what happens then?” We tabled an amendment in Committee to try to establish the answer.
The noble and learned Lord, Lord Thomas of Cwmgiedd, took up the cause on Report, requiring the judicial commissioner to inform the person who granted the authorisation to cease all further activity if the independent senior judge determined that the authorisation should not have been granted. The noble and learned Lord even allowed for the activity to continue for a while if that was necessary for the purpose of safely disengaging the CHIS. The Commons objected to a judicial commissioner—an independent senior judge—stopping a CHIS committing a crime when that judicial commissioner had decided that such activity was illegal. Let us just think about that for a minute.
Instead, the Government are proposing that it is for the authorising officer in the police or the security services to determine what action, if any, should be taken once he has been told by an independent senior judge that what he has authorised is against the law. The authorising officer is required only to write back to the judicial commissioner to say what he has decided to do, and that is a requirement only in the codes of practice, not in the Bill. Despite what the noble Lord, Lord Anderson says—that because it says that the authorising officer needs to say what action he intends to take and therefore no action is not an option—the action that the authorising officer could decide to take is simply to consult a senior officer and write back to the Investigatory Powers Commissioner to say that they will carry on regardless.
Not only can the police or security services continue to task a source to commit a crime against the independent determination of a senior judge, but that source has complete legal immunity, despite the judicial commissioner saying that the criminal conduct authority should never have been granted. If ever there was evidence of a Government simply giving operational partners whatever they asked for, whatever the consequences, this Bill is it.
Our amendment to Motion E requires that if the judicial commissioner determines that the authorisation should not have been granted, he must inform the person who granted the criminal conduct authority of his decision. He must also inform the relevant prosecuting authority and all further activity that will or might be undertaken under the authority of that criminal conduct authority ceases to be lawful for all purposes. Contrary to what the Minister said, this does not interfere with the operational decision to deploy the CHIS or with tasking the CHIS to commit crime. The judicial commissioner cannot stop the activity but he can prevent further activity being immune from prosecution.
The Minister, I respectfully suggest, has misinterpreted our amendment and it is disappointing that she did not offer an opportunity to discuss it and clarify her understanding of it. In such a scenario, the situation simply reverts to the existing system, whereby the actions of the CHIS are referred to the CPS after the event to decide whether it is in the public interest to prosecute, rather than the CHIS being given prior legal immunity. That would happen if, and only if, the judicial commissioner determines that the criminal conduct authority should not have been given.
I intend to move Motion E1 at the appropriate point to test the opinion of the House.
My Lords, I wish to speak to Motion D, the government amendment in lieu of Lords Amendment 4. I, too, thank the Minister for her time and the care that she showed when we met. I wish also to recognise Stella Creasy MP, who has done so much to advance this issue.
I warmly welcome the enhanced protections, most particularly on the definition of exceptional circumstances. Experts have made clear to me that if that is applied rigorously, coupled with the amendment of the noble Lord, Lord Anderson, it will indeed make a real difference on the ground. Asking children to undertake illegal activities on behalf of the authorities is a place that none of us wants to be in, but as the Bill does precisely that, by formalising and giving permission to instruct child operatives to commit crime, it must be to the highest order of protection. It is the question of what a child is that I wish to raise once more.
A child of 16 or 17 is still a child, as defined by the UN Convention on the Rights of the Child and in our laws, and treated in our communities and families as a child—by right, by law and by practice—and yet the Bill does not afford 16 and 17 year-olds the protections due to children. While under-16s have the absolute right to have an appropriate adult with them when they meet a relevant person, in the case of 16 and 17 year-olds, a relevant person can decide that there are
“circumstances which justify the absence of an appropriate adult”,
even when that is a meeting that will lead to the child undertaking illegal activity on behalf of the authorities. This introduces an extraordinary conflict of interest that structurally undermines the Bill’s other requirement to act in the best interest of the child because it denies a 16 or 17 year-old child the automatic right to the presence of an adult who has the child’s interests as their unfettered concern.
Moreover, while I know the Minister’s assurance that more than one person must be involved, those circumstances can happen at the beginning of a child’s use as a CHIS, during their term as a CHIS and again under proposed new article 10 concerning the renewal of each four-month term, thereby making it possible for a child to be introduced, managed and repeatedly renewed as a CHIS, with no appropriate adult present at any time.
When we last debated this matter, a number of colleagues robustly criticised the amendment in my name, arguing that we should ban child CHIS altogether. However, while my heart is entirely with them, I had accepted the Government’s argument that if gang leaders knew beyond doubt that a child could not be a CHIS, it would drive further recruitment and exploitation of children by gangs. My, albeit reluctant, view was that the best way in which to protect children from being exploited by gangs was to allow the possibility of a child CHIS but to shroud the process in robust protections. We have failed to do that for 16 and 17 year-olds.
This is a failure of which the Front Bench of the Official Opposition in the other place should be ashamed, given that they have not fought for it. I am further disappointed that the Government have used their majority to walk through the Lobby rather than to protect the citizens they are elected to serve—in this case, vulnerable children being made more vulnerable at the behest of the state. All that is being asked here is that every child has an appropriate adult whose role is to make sure that what the child is being asked to do meets the bar of exceptional circumstances, and is understood, agreed to without pressure and in their best interests.
I do not doubt the principled behaviour of many in the enforcement community. I will work alongside officers in the UK and internationally whose commitment to exploited children online is nothing short of humbling. However, history is littered with examples of people in authority who have abused their position. In creating this glaring loophole, not only are we clearly exposing these children to the possibility of abuse by those in authority, we are also exposing those in authority to suspicion, and the Home Office itself to reputational and legal risk from even one bad apple.
Therefore, while the Bill is all but done, I still have some practical questions on both safeguarding and arrangements for meeting, as set out in proposed new Clause 29C(3)(b)(ii) and proposed new subsection (3)(c), where the word “believes” is the bar. In spite of the Minister’s assurance, that still appears to allow a relevant person to say that he or she thought that there was no harm in asking the child to do something illegal. Can she confirm that the guidance will include an objective test for both issues? Similarly, does the IPCO have to work out whether the officer “believed” that the illegal activity was in the child’s best interests or will they be looking to establish whether the action was “compatible” with the child’s best interests? In the event that the IPCO does not like the explanation, how quickly and by what process would it be challenged, bearing in mind that all the while a child is acting as a CHIS with no support? If the final port of call is reporting to Parliament, as we have heard, what level of detail is the IPCO to provide to Parliament? If, God forbid, something went wrong, is there an expectation that the police would reveal that a child was acting as an informant to serious case review, and would that automatically trigger an investigation?
The guidance, the code of conduct or, as the Minister rightly suggested, secondary legislation may be the last port of call for these children. Perhaps she can say when it will be ready, what form it will take and whether she would consider sharing it in advance so that parliamentarians with an interest in this matter can comment and input. Will the guidance be subject to a child rights impact assessment? I understand that it is frustrating to have to deal with so many questions at this late stage but almost every child CHIS has been or will be 16 or 17 years old. If the Bill fails this age group, it will have failed children overall.
In these extraordinary times, we have byzantine rules that make it difficult for colleagues to participate, so I want to put on the record that while the form of expression is mine, the view I am expressing is shared by scores of noble Lords on the Government Benches, the Opposition Benches and my own Benches, and a veritable flock of Bishops, who regret the lack of opportunity to make their views known.
Finally, I would remind the House that we are talking about children who have already been let down by the institutions of state, their families and their peers. These are not children who have a clear idea of where their best interests lie, otherwise they would not be available for this task. The least we can offer, and the most we still have available, is robust and thoughtful guidance that puts the best interests of all children beyond doubt.
My Lords, I wish to speak to Motion E. I have nothing to add to the eloquent observations made by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson, on Motion A.
First, I thank the Minister, and in particular the Bill team, for the constructive discussions I have had since tabling my amendment. Its purpose is to add to the real-time notification a mechanism to ensure that action is taken if the judicial commissioner has made adverse comments or found that the authorisation should not have been granted. In the debate on Report, the noble Baroness, Lady Manningham-Buller said:
“It is difficult for me to imagine that if a judicial commissioner raised a serious concern about an authorisation, it would continue. But it might not be able to stop immediately. There would have to be some discussion, because the safety of the covert human intelligence source would be paramount.”—[Official Report, 11/1/21; col. 538.]
I believe that she was right to say what would happen if a judicial commissioner expressed that view.
However, I took the view then, and still take it, that there must be something which operates as a mechanism to ensure that something does happen: that in some cases the authorisation should be discontinued or unwound in an orderly manner. An amendment to the Bill would have been the better course, and I much regret my own failure to try to persuade the security services that it would be in their own interests to have it in the Bill. But taking into account what the noble Lord, Lord Carlile of Berriew, said in the same debate in relation to the utility of codes of practice, and my objective, I am glad that the Minister has agreed to insert into the code of practice the wording that she has read out.
It achieves a number of purposes. First, it goes slightly wider than my proposed amendment, in that it will apply to all observations, not merely saying that the authorisation should not have been granted. Secondly, it requires the person who gave the authorisation to take action, but to work out what to do. If that person gets himself or herself into the position of doing something that should not have been done, they should be responsible for working out how to get out of it. Thirdly, it requires a more senior officer to be notified of what is intended. It has always been my worry that a person in the position of an authorising officer whose action is disapproved of might try to cover up what has happened. Finally, it requires the office of the IPC to be notified of the intended action—that is, before the action is taken, save in cases such as urgency or where the action taken is simply to stop the activity. It enables the IPC to express a view and, if there is a difficulty, to work out what should happen in a collaborative manner.
As I have said, it would have been far better if there was a legislative provision of the type proposed, but as a matter of practical reality, I would hope that this insertion into the code of practice should ensure that if the judicial commissioner does not approve of the authorisation or of what has happened, or criticises it, there is a clear mechanism in place to stop the activity or modify it accordingly in a manner that protects the CHIS.
The IPC is a body with very great authority, comprised as it is of senior judges. It has been my experience throughout my former judicial career that remarks made in such circumstances as this are ignored only at the peril of the person concerned. I would hope and expect, therefore, that the observations will be acted on immediately and that the office of the IPC is notified of any intended action. If, contrary to my expectations, this does not work, the people who will suffer real damage will be the police and the security services; to them, the damage will be immense. What I hope would happen is that this provision will strengthen the view that before making an authorisation in unusual and not simply routine circumstances—most of these authorisations apply to routine circumstances—the police and the security services would serve their own interests far better by going to the office of the IPC before they authorise an action rather than afterwards.
The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord West of Spithead, Lord Young of Cookham, Lord Russell of Liverpool and Lord Adonis, and the noble Baroness, Lady Jones of Moulsecoomb. If any other Members in the Chamber wish to speak, I ask them to contact the clerk as soon as possible.
My Lords, I felt initially that in Amendment 1 it was necessary and sensible to have the term “reasonable belief” in the Bill, but the inconsistency with RIPA 2000, the Solicitor-General’s statement in the other place and the changes that have been made to some of the paragraphs have now persuaded me that it is not necessary.
I view Amendment 2 in a much more serious light. We should be proud of the fact that our nation is at last putting our covert human intelligence agents’ behaviour on a statutory basis. We must not lose sight of the fact that agents save lives. In working undercover, CHIS need to be trusted by those on whom they are reporting. Put simply, if they are to be believed to be a gang member, they need to act like one. If they do not, it is no exaggeration at all to say that they could be killed. My experience in Northern Ireland certainly backs that up. Their handlers must be able to authorise them to break the law in certain circumstances and subject to specific safeguards. These safeguards have been strengthened by the work of this House, and we should be proud of that.
It will not help anyone if we put checklists of offences on the face of the Bill—nothing at all would be gained by that. The safety of CHIS should be central to the decisions of this House. We must not forget that they are very important individuals who are doing important things for us. I am afraid that this amendment also ignores that fact. Drawing parallels with the United States and Australia is dangerous and totally irrelevant. If there is a Division on the amendment, I will vote with the Government on this issue.
The Government have been somewhat vague about why they have opposed Lords Amendment 3 on the issue of criminal compensation but have now brought forward their own Amendment 3B, which shows that they have absolutely understood its necessity. The point was well argued by the noble Lord, Lord Anderson. I am happy to support government Amendment 3B. It meets the concerns of the House and provides assurances on the matter in the Bill, which is good.
On Amendment 4, I have thought long and hard about the use of adolescents. When one heard about this initially, one was taken aback, but I have come to realise that, to some extent, the concern about juveniles in relation to the Bill is due to the conflation of the broader question of whether under-18s should be used as CHIS at all. That of course is not the matter at hand that we are discussing, rather it is the narrower issue of whether those involved should be able to participate in criminality and with what safeguards, which is what the Bill addresses. On those CHIS below the age of 16, I now believe that, in very exceptional circumstances, we should use them. The government amendments will put appropriate safeguards in place which will ensure that that can be done with maximum gain and minimum risk.
The other place quite rightly accepted the core element of Lords Amendment 5, which requires all CCAs to be notified to judicial commissioners as soon as possible, and within seven days of being granted. The Government have come back with Amendment 5A, which would require any such activity to stop immediately, except where the judicial commissioner had allowed specific activities to continue for the purpose of discontinuing the authorisation, and they have of course amended the code of practice.
In the other place, the Solicitor-General said:
“On the extremely rare occasions where a judicial commissioner may find issue with an authorisation, the public authority will consult with the commissioner and may indeed stop, or not commence, the activity that they planned to commence. However, this should not be at the expense of the safety of the CHIS.”—[Official Report, Commons, 27/1/21; cols. 428-29.]
This final sentence is compelling for me. To take a hypothetical example, if MI5 authorised activity that was considered essential to the maintenance of a CHIS’s cover, requiring this activity to stop immediately could very well blow that cover and put their safety at risk. As I have said a number of times, the safety of CHIS has been central to the way this House has considered the Bill, and that is important.
The noble Lord, Lord Paddick, appreciated that fact, and his Amendment 5B would not require activity to cease immediately. However, I cannot support his amendment as I believe—indeed, I know—that the notification of prosecuting authorities will cause real problems from a practical and operational point of view, particularly for the agencies and their ability to run CHIS.
In summary, I believe the House should be proud of what it has done on the Bill by putting it on a statutory basis. Anything in this area is always unpleasant, but I believe that the Bill is necessary and a useful piece of legislation.
My Lords, I will speak very briefly to Amendment 4, which deals with juveniles and vulnerable adults, and the government amendments to that part of the Bill. The background to this is the debate we had on 13 January, when a group of amendments, led by Amendment 12 in my name, sought to remove children aged under 18 and vulnerable adults from the Bill’s scope entirely. While this secured support from all sides of the House, it was clear that without support from the Official Opposition it was doomed. Therefore, I withdrew it.
The House then coalesced around Amendment 24, in the name of the noble Baroness, Lady Kidron, whose impact on this debate has been substantial. I pay tribute to that. I also supported her amendment, although it did not go quite as far as Amendment 12. Her amendment trumped government Amendment 26 in the same group by offering additional safeguards. Although the Government described these as unworkable, the House supported Amendment 24 in a Division by 339 to 235. As we heard, this was rejected in another place and we now have the government amendments we debate today.
My view, which is shared by the Children’s Commissioner, is unchanged—namely, that we should exempt children and vulnerable adults—but I accept that that will not happen. What we now have is a welcome improvement on government Amendment 26, and I am grateful to my noble friend for listening to the concerns and meeting them where she felt she could. I also pay tribute to the work of Stella Creasy in taking the debate forward.
Some relevant questions on the government amendments have been raised by the noble Baronesses, Lady Hamwee and Lady Kidron. I hope my noble friend will feel able to continue the dialogue once the Bill reaches the statute book, to focus again on the code of practice, in particular to consider extending the protections in the Bill to all children used as CHIS, not just those authorised to commit criminal conduct, and to reconsider the issue of appropriate adults for those aged under 18. In the meantime, I am happy to support the government amendments.
My Lords, like the noble Lord, Lord Young, I will also speak very briefly to Motion D. I thank all noble Lords who have been part of a chorus of voices speaking on behalf of children, young people and vulnerable adults. It is very good news that their voices have been heard.
I thank the noble Lord, Lord Young, and the noble Baroness, Lady Kidron. I also thank the noble Baroness, Lady Young of Hornsey, who first tabled the amendment that the noble Baroness, Lady Kidron, then took on. I thank the noble Lord, Lord Anderson, because the initiative he brought forward to have greater involvement by IPCO has been and is extremely welcome. Stella Creasy has probably got enough plaudits without needing any more; it will doubtless go to her head. I thank the charity Just for Kids Law, which has been very active, helpful and constructive in realising what is and is not realistic.
The noble Baroness, Lady Kidron, asked all the questions that I would have asked, and probably rather better than I would have. I am sure the Minister will deal with them when she comes to respond. I quickly looked up whether a flock of Bishops is the right collective noun. It is actually a Bench of Bishops or a sea of Bishops, but unfortunately we do not have any with us today.
I also pay tribute to the Minister’s colleague, James Brokenshire, who has been extremely influential in listening very carefully to all these voices. I thank the Bill team, but I also thank the Minister for the very useful initiative that has been brought into action during the passage of the Bill: the meetings with the operational partners. It is extremely helpful for us to listen directly to the experiences of people on the front line dealing with this. Equally, I think it is very effective the other way. It is very good for them to hear from us, unfiltered, why we are concerned and what sort of questions we are asking. It is an excellent initiative and I hope it will continue.
In the meantime, I thank the Government. They are perhaps not very often thanked by the Cross Benches, but on this particular occasion, on behalf of a great many of us, I thank the Government for listening and for acting.
My Lords, the Government have clearly moved on most of the contentious issues. We expect nothing less of the Minister, whom we hold in very high regard. The fundamental issue that is outstanding—you could argue that the use of under-18s is fundamental, but at least the Government have moved on that, although as it happens I agree with the noble Lord, Lord Young, and the noble Baroness, Lady Kidron, that under-18s should not be used—which the Government have not moved on and which we wish to press the Minister on is Amendment 2. I have listened to the debates, but I have not participated in them until now. We are at the crucial moment of whether the House will insist on its amendment, so it is reasonable for people to express a view on this crucial point.
The crucial question is the one put by my noble friend Lady Chakrabarti. We are talking about very weighty matters in Amendment 2 as to whether authorisations can be given in respect of murder, rape and torture. I thought the Minister equivocated on this in the example she gave in opening the debate. Can she say categorically when she replies that murder, rape, torture and their authorisation by agents of the state would contravene the European Convention on Human Rights and the Human Rights Act?
If she is saying that, then it is a complete mystery why the Government will not accept Amendment 2. As my noble friend Lady Chakrabarti so rightly said, Amendment 2 cannot be both dangerous and superfluous. If it is indeed superfluous because the authorisation of murder, rape and torture, even in the circumstances the Minister gave where it might somehow protect an agent’s cover, would itself contravene convention rights and the Human Rights Act, then how can we not be prepared to put it in the Bill? The only reason not to do so is to equivocate on whether murder, rape and torture are indeed against the European Convention on Human Rights and the Human Rights Act. This point seems fundamental.
I so rarely disagree with my noble friend Lord West, even on the need for more frigates; I generally agree with him even on the long list he has of further naval equipment that we need. In this case, I thought that he was in danger of simply parroting the lines of those people who clearly support having no legal safeguards at all in this respect. He said, slightly glibly, if I may say so, that we were talking about a checklist that it would be unreasonable for agents of the state to observe. We are talking not about a shopping list, but about specific exceptions for the most heinous crimes, which I do not believe that my noble friend, whom I know and trust greatly, would grant authorisations for.
The noble Lord, Lord Paddick, gave a very powerful speech; he has himself operated and manged agents and is not coming to this as a kind of naive human rights lawyer. But when he gave chapter and verse on other jurisdictions and how they have dealt with precisely the same issue, my noble friend said that Australia and the United States are—I noted down his phrase—“dangerous and irrelevant.” I was then waiting for him to expand on why they were dangerous and irrelevant, but he stopped at that point; he did not tell us why, somehow, the experience of the United States and Australia—not countries that play fast and loose with their own security—was not relevant to us here.
That leads on to the powerful points made by my noble friend Lady Chakrabarti about the role of the House and, if I may say so, the role of my party, the Labour Party. Those of us who engage in public life do so because we think that our parties express our values. My noble friend pointed out that these provisions were in no party’s manifesto. The Salisbury convention, which rightly governs our conduct, states that we should not insist on amendments in respect of a matter that the governing party has put in its manifesto and on which it has therefore had the explicit endorsement of the people. However, this issue is not covered by those arrangements.
Therefore, there is an important question of judgment as to why we are placed here: whether the House of Lords, as a second Chamber, should seek to insist on amendments concerning an issue in respect of which the Salisbury convention is not operating. Normally, we would not, and normally, I do not, because I am very conscious, as we all are in this place, that we are nominated and the other House is elected. But my noble friend made a very powerful point: that fundamental protections for human rights and the constitution are issues in respect of which, if the Government do not have explicit Salisbury convention mandates, we should be prepared to insist on amendments. The Parliament Acts themselves recognise that, because they except from the power of the House of Commons to override this House Bills to extend the life of Parliament. That was specifically put in to provide a constitutional protection, and in our enlarged understanding of the sphere of proper constitutional protections since the Parliament Act 1911, it is reasonable that fundamental human rights should be a part of that.
If this House does not exist to see that murder, rape and torture cannot be committed by agents of the state, then I am at a loss to understand why we are here at all.
My Lords, I am not shy about admitting that I am critical of this Government, whose majority in the other place has made them quite shameless. They have, on occasion, asked your Lordships’ House to break the law, and this is another such occasion. Sometimes we are tough and we refuse; I hope that that is what will happen today.
It was superb listening to the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick. Of course, both Greens will be voting for the amendments because this is about the rule of law and human rights. I do not very often agree with the noble Lord, Lord Adonis —probably never, in fact—but on this occasion I agreed with every single word he said, and I wish I had said it first.
On the enhanced protections for children, I understand that the noble Baroness, Lady Kidron, and the noble Lords, Lord Russell and Lord Young of Cookham, feel that something is better than nothing. But quite honestly, this is child abuse. It is child abuse by the Government—using children as spies. I cannot see how any Government who care about the rule of law could put this in legislation. It is obvious that this Government do not care about the rule of law; they protect their own while throwing others to the dogs.
This Bill provides blanket legal protection for undercover police and their informants—who could be criminals—for crimes with pre-authorised immunity. Similarly, the forthcoming overseas operations Bill creates new protections against prosecution for military personnel acting overseas. The Government have fought strongly for these protections against prosecution for the police and the military. They fought against any attempt by your Lordships’ House to reduce or check these protections.
Yet, having granted such broad protections to the police and military, even in cases of fundamental wrongdoing, the Government then refuse what is a comparatively far more limited legal defence for survivors of domestic abuse—usually women. A public inquiry is under way examining the 40-year history of government agents abusing their power while spying on trade unions, green campaigners and those in the black community fighting for justice. Police officers were using sexual relations with women as a deliberate strategy, although we are now told that it was unlawful all the time. We see this Government protecting their own from the law while allowing the abuse of vulnerable people and women. That is what this Government do.
I do not want to pile in on the noble Lord, Lord West, who said that the safety of CHIS should be paramount, but quite honestly, I thought the rule of law and the safety of the realm were meant to be paramount. If you continue to break the law as a Government, you are not increasing the safety of the realm; you are actually making it more dangerous for us all. I very much hope that noble Lords will vote for these amendments today and refuse again to let the Government abuse the law.
I thank the Minister for her opening statement setting out the Government’s position on these motions. I also thank her for the helpful meetings that have taken place throughout the passage of this Bill.
On Motion A on Lords Amendment 1, we welcome the Government’s willingness to address this issue in the code of practice by including in the code the words, “that the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
On Motion B and Lords Amendment 2, we note that the Commons disagreed with the Lords amendment on the basis, as has been said, that it would place sources and the wider public at risk. The Minister repeated that view when she said that the Government would not support the amendment and implored this House to accept the advice of operational experts and do the same. We are disappointed that the Lords amendment has not been accepted. As my colleague, the Member for St Helens North, said in the Commons:
“if countries that are our allies, with similar criminal justice systems and with whom we co-operate on security matters, can do this, the Government need to set out a little more forcefully why we should not.”—[Official Report, Commons, 27/1/21; col. 431.]
I thank noble Lords who have raised their concerns today.
The Lords amendment was originally carried in this House by a small majority. We have already asked the elected House to think again on this issue, and it has not accepted the view we expressed. There was no indication, when it was debated and voted upon in the Commons, that our amendment had sufficient support to lead to a change in the Government’s position. We do not believe that sending the same amendment back a further time will produce any change in the legislation. For these reasons, we will not support the amendment to Motion B should the House divide, as it appears it will.
Motion C in respect of Lords Amendment 3 relates to the criminal injuries compensation scheme. We welcome the fact that on Report, the Government listened to the views of this House on redress for victims and have brought forward an amendment in lieu making it clear that an individual can access the scheme where appropriate. I pay tribute to the work done on the issue of redress for victims by the Joint Committee on Human Rights during its consideration of the Bill, and, in particular, by my noble friends Lord Dubs and Lady Massey of Darwen.
Motion D on Lords Amendment 4 relates to the authorisation of juveniles and vulnerable adults. I endorse the Minister’s comments on the involvement of noble Lords who have been particularly engaged with this issue—including my noble friend Lord Kennedy of Southwark and Stella Creasy MP—and pay particular tribute to the noble Baronesses, Lady Young of Hornsey and Lady Kidron, who tabled amendments that we supported throughout the Bill. The Minister will have heard the remaining concerns expressed by the noble Baroness, Lady Kidron. On this issue, we have not achieved everything that was asked for but we welcome the government amendments in lieu, which go further than previous government amendments on this issue.
Motion E on Lords Amendment 5 relates to real-time notification to the Investigatory Powers Commissioner. We believe that this safeguard is a major improvement in the Bill and pay tribute to the noble Lord, Lord Anderson of Ipswich, for his work on it. The Commons supported the amendment, with the exception of the additional amendment from the noble and learned Lord, Lord Thomas of Cwmgiedd, which stated that if a judicial commissioner determines that the authorisation should not have been granted, the person who granted it must immediately be informed and all further activities that might be undertaken must cease forthwith. As I understand it, it has been confirmed today, following further discussions with the noble and learned Lord, that the Government will add wording to the code of practice stating that
“where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken. Having consulted with a more senior officer, they must, as soon as reasonably practical, notify the office of the Investigatory Powers Commissioner of the intended action, or where action has been taken, for example in urgent cases of the action.”
I understand from what has been said that these words are acceptable to the noble and learned Lord.
On the amendment to Motion E from the noble Lord, Lord Paddick, we recognise the safeguards that he seeks and believe that a mechanism to allow prosecution where an authorisation should not have been granted already exists. The Investigatory Powers Commissioner can, if it is felt that an authorisation has been improperly granted, refer a case to the appropriate authorities, including the Crown Prosecution Service. The CPS could then, if it so decided, invite the courts to decide whether an authorisation was improperly granted; if the courts did so decide, immunity from prosecution would cease in respect of both the covert human intelligence source and the authorising officer or body. In the light of those considerations, we will not support the amendment in the name of the noble Lord.
This is not the Bill that we would have passed but we believe that it is significantly improved by the changes achieved by noble Lords across all Benches.
My Lords, I again thank all noble Lords for their thoughtful and detailed contributions to today’s debate and the lead-up to it. As the noble Lord, Lord Russell of Liverpool, pointed out, we have found a new way to work as a closed Committee without having to go through any of the bureaucracy of setting one up; I was very pleased to hear from him and other noble Lords that those sessions were very useful indeed. I have had many discussions with noble Lords, which have been very helpful. To echo the words of the noble Lord, Lord Rosser, we have made the Bill better, as we often do in your Lordships’ House.
The noble Lord, Lord Paddick, regretted that he could not have a meeting on his amendment. I thought that I had squared off all meetings that I possibly could. I spoke to him and the noble Baroness, Lady Hamwee, at the end of last week. It is unfortunate that he feels that his amendment could have been discussed further.
I also heard comment that the Bishops wanted to be here. The advancement of modern technology means that everybody can be here, remotely or otherwise, should they want to.
I particularly thank three noble Lords. The noble Lord, Lord West of Spithead, summarised the amendments very succinctly. The noble Lord, Lord Anderson, in typical forensic style, did similarly, as did the noble Lord, Lord Russell. A number of noble Lords, including the noble Lord, Lord West of Spithead, went into this Bill with some degree of scepticism. It is a tribute to the way in which our engagement has worked that they all feel that the Bill is better now that we have dealt with it than it was initially.
I want to start with the various responses and comments. First, in response to the noble Baroness, Lady Hamwee, I can confirm that the code of practice will state that
“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
The noble Baroness, Lady Chakrabarti, raised the reporting of the recent Court of Appeal hearing as to whether MI5 had authorised offences as serious as murder; the noble Lord, Lord Adonis, also mentioned this. I have been clear throughout that the Bill does not provide a licence to kill and that our commitment to the safeguards in this Bill is firm. All authorisations issued under the Bill must comply with the Human Rights Act or they will be unlawful. I can therefore confirm and place on record that the Human Rights Act binds all authorised activity of undercover agents, alongside the state itself.
The noble Lord, Lord Adonis, asked me a specific question to which he required a specific answer: could I commit to there being no authorisation of murder, torture or rape? Obviously, I cannot be drawn on the crimes that can or cannot be authorised, for reasons that have been stated throughout the course of this Bill, but I note that all authorisations must be necessary and proportionate and must comply with the Human Rights Act. The independent IPC will be notified and see every authorisation in as close to real time as possible.
To clarify, the context of the remarks in the Court of Appeal—to which the noble Baroness, Lady Chakrabarti, referred—was a legal discussion that was solely about the existing vires for the Security Service to operate a policy that authorises its agents to participate in conduct that might, or would be, criminal. The First Treasury Counsel said that there is a power to authorise the commission of a crime under the Security Service Act and under the royal prerogative before that, although the power conferred no immunity from prosecution. The comment that the noble Baroness refers to concerns an entirely hypothetical question regarding the narrow point of whether the vires is limited to the commission of some crimes but not others. It was not and is not. That discussion is quite distinct from the question of whether an authorisation or subsequent conduct might be a breach of other law such as the Human Rights Act. I also note that the First Treasury Counsel said nothing about whether any particular type of conduct would or would not be authorised in practice or indeed compatible with a policy that requires it to be necessary and proportionate in any event.
The issue of whether certain conduct or types of conduct should be off limits has deliberately not been discussed in open court proceedings, for the same reasons as I have been unable to discuss these issues on the Floor of the House. It would not be appropriate for me to comment on the legal proceedings further. What I can say and what I have been consistently clear about is that, under the new regime introduced by the Bill, the necessity and proportionality test and the Human Rights Act provide legal limits to the conduct that can be authorised—and I say that again now.
On the subject of juvenile CHIS, I shall response to the points made by the noble Baroness, Lady Hamwee, on the government amendments. She is right that the amendment will prevent an authorisation being granted when the authorisation would put the juvenile in a position of reasonably foreseeable harm. In response to her question about injuries of a psychological nature, I reassure her that the definition of injury in the Bill includes that.
On the subject of the appropriate adult, they are there to support the young person to make informed decisions in relation to any tasking and nothing prevents them from playing an active part in the meetings that take place. The role of the appropriate adult in this setting differs from their role in a custody suite or an interview; they can have discussions with the CHIS and authorising officer outside those meetings, subject to any arrangements that the authorising officer may put in place to ensure that the safety of the CHIS and the adult themselves is assured at all times.
As to whether a juvenile CHIS would be used when other alternatives are available, they are used only in exceptional circumstances and, more importantly, when it is compatible with the best interests of that child. All authorisations must meet the proportionality threshold so, when using an adult could achieve the same outcome as using a child, that could be the correct option. However, even when an adult may be available, there may be occasions when the authorisation of a specific child is the only way in which to remove the child from a harmful situation.
In response to the noble Baroness, Lady Kidron, I pay tribute to her role in shaping the debate on this issue. This is a difficult and emotive area, and we all want to ensure that the well-being of a child is the priority of any authorisation, including for 16 and 17 year-olds. There is a presumption that there will be an appropriate adult in place for all meetings with CHIS aged 16 to 18 years. The justification for not having one will be available for IPCO to scrutinise and comment on; he or she will look at all aspects of an authorisation to ensure that all the enhanced safeguards have been applied, and they have stated that they pay particular attention to the welfare of the juvenile.
I assure the noble Baroness that the CHIS code of practice will be updated following the passage of the Bill and will provide the detail that underpins the authorisation process. There will be a public consultation on the updated code, followed by a debate and vote in both Houses. I encourage all noble Lords, as I have said previously, to feed into that process, and I certainly welcome any contribution from the noble Baroness and will make officials and operational partners available for any further discussion.
The noble Baroness asked about the level of detail given to Parliament. Clearly, there will be open and closed parts. The Prime Minister and Home Secretary will look at the closed part, and the open parts will, of course, be shared with colleagues.
As I said in my opening remarks, all criminal conduct authorisation will be the subject of rigorous independent oversight, which includes CCAs for juvenile CHIS, with the Investigatory Powers Commissioner seeing all authorisations in real time and being required to keep under review in particular the safeguards relating to juvenile or vulnerable individuals. The updated code will provide guidance on how the notification process will work and the enhanced safeguards that will apply to juvenile CHIS CCAs to supplement the detailed safeguards that we are bringing forward in the Bill.
I turn to the amendment of the noble and learned Lord, Lord Thomas, with regard to the points made by the noble Lord, Lord Paddick, on what happens if a judicial commissioner provides comments on an authorisation. Again, I offer reassurance on what would happen if the IPC or a judicial commissioner did not agree with an authorisation when notified of its grant. A judicial commissioner would flag it to the authorising officer, and would work collaboratively to address such concerns; it would not be the case that a public authority would simply ignore feedback from IPCO. This is collaborative, and the views of the commissioners carry very serious weight, but the commissioners have the power to refer an issue to the prosecution services if they felt it was necessary and, ultimately, it would then be for a court to determine the lawfulness and validity of an authorisation.
These have been very thoughtful debates, and I have welcomed the opportunity to engage extensively with noble Lords on the important issues that the Bill raises. I have been consistently clear that the Government have been willing to consider amendments that provide reassurance on the concerns that have been raised while ensuring that the regime remains workable for our operational partners, and I hope that I have demonstrated that approach through the Motions tabled today. Therefore, I ask noble Lords on all sides of the House to support these Motions and ensure that the Bill can enter the statute book and provide this important legal framework for a critical tool that will keep us all safe.
Finally, just before I stood up, I noticed a message from my right honourable friend James Brokenshire. I note the comment from the noble Lord, Lord Russell of Liverpool, and I shall certainly send his regards. I want to thank him for the way in which he has worked with me and other noble Lords to ensure that this Bill has left this place in a very good state.
I have received a single request to speak after the Minister. I call the noble Lord, Lord Adonis.
My Lords, I am very grateful to the noble Baroness for the lengthy reply she has given. However, unless I misheard her, she did not in fact give a direct reply to my very fundamental question on Amendment 2. It was: would the authorisation by agents of the state of murder, rape and torture be against the Human Rights Act and the European Convention on Human Rights? If I understood her correctly, she said that nothing could be authorised that was against the Human Rights Act. Well, is it against the Human Rights Act or not? That is a straight question, but I noticed that she did not mention the European Convention on Human Rights at all in her reply. Can she say whether the authorisation of murder, rape and torture would be against that convention?
I think that, like other noble Lords, the noble Lord will know that throughout the passage of the Bill I have very consistently said that I cannot be drawn on the crimes that can and cannot be authorised, for the reasons that I have stated consistently throughout the passage of the Bill. But I will say that all authorisations must be necessary and proportionate, and they must comply with the Human Rights Act. I will go no further than that.
Motion A agreed.
2A: Because the Commons consider specifying types of conduct which criminal conduct authorisations could not authorise on the face of Part 2 of RIPA would place sources, and the wider public, at risk.
I understand from the clerks that the noble Baroness, Lady Chakrabarti, has already indicated that she wishes to press her amendment.
Motion B1 (as an amendment to Motion B)
Motion B agreed.
3A: Because the Commons consider it is inappropriate to create an exception to the effect of criminal conduct authorisations.
3B: After Clause 2, insert the following new Clause—
“Criminal injuries compensation
After section 27 of the Regulation of Investigatory Powers Act 2000 (lawful surveillance etc.) insert—
“27A Section 27: criminal injuries compensation for s. 29B conduct
For the purposes of—
(a) the Criminal Injuries Compensation Act 1995,
(b) the Scheme made under that Act,
(c) the Criminal Injuries Compensation (Northern Ireland)
Order 2002 (S.I. 2002/796 (N.I. 1)), and
(d) the Scheme made under that Order, section 27(1) has no effect in relation to conduct authorised under section 29B.””
Motion C agreed.
4A: Because the Commons consider aspects of the safeguards for juveniles and vulnerable individuals provided for by this amendment to be unworkable.
4B: Clause 1, page 3, line 14, after “(4)” insert “and sections 29C and 29D”
4C: After Clause 1, insert the following new Clause—
“Criminal conduct authorisations: safeguards for juveniles
(1) After section 29B of the Regulation of Investigatory Powers Act 2000 (inserted by section 1(5)) insert—
“29C Criminal conduct authorisations: safeguards for juveniles
(1) This section applies in relation to the grant of a juvenile criminal conduct authorisation.
(2) “A juvenile criminal conduct authorisation” is an authorisation under section 29B for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source where that source is under the age of 18 (“the juvenile source”).
(3) In addition to satisfying the requirements of section 29B, a person may grant a juvenile criminal conduct authorisation only if—
(a) the person has considered the results of an appropriate risk assessment;
(b) there are exceptional circumstances such that—
(i) it is not reasonably foreseeable in the circumstances as the person believes them to be that any harm to the juvenile source would result from the grant of the authorisation, and
(ii) the person believes the authorisation would be compatible with the need to safeguard and promote the best interests of the juvenile source; and
(c) the person believes that appropriate arrangements for meetings are in force.
(4) For the purposes of subsection (3)(a), “an appropriate risk assessment” means an assessment which—
(a) identifies and evaluates the nature and magnitude of the risks of harm to the juvenile source arising in the course of, or as result of, the conduct authorised by the authorisation; and
(b) is carried out in accordance with provision made by the Secretary of State by regulations under this paragraph.
(5) In subsections (3)(b)(i) and (4)(a), “harm” means—
(a) physical injury; or
(b) psychological distress.
(6) For the purposes of subsection (3)(c), “appropriate arrangements for meetings” are such arrangements for the juvenile source’s case as are necessary for ensuring—
(a) that, at all times when the juvenile source is under the age of 16, there will be a relevant person who will have responsibility for ensuring that an appropriate adult is present at all meetings in relation to the authorisation which take place between the source and a person representing a relevant investigating authority; and
(b) that, at all times when the juvenile source is 16 or 17 years old, there will be a relevant person who will have responsibility for—
(i) ensuring that an appropriate adult is present at all meetings in relation to the authorisation which take place between the source and a person representing a relevant investigating authority, other than any such meeting in relation to which a relevant person decides there are circumstances which justify the absence of an appropriate adult, and
(ii) maintaining a record of the reasons for each such decision that there are circumstances in relation to a meeting which justify the absence of an appropriate adult.
(7) In subsection (6)—
“appropriate adult”, in relation to a juvenile source, means—
(a) the parent or guardian of the juvenile source; or
(b) any other person who—
(i) has for the time being assumed responsibility for the juvenile source’s welfare, or
(ii) is otherwise qualified to represent the interests of the juvenile source;
“relevant investigating authority”, in relation to a juvenile criminal conduct authorisation, means the public authority, or (as the case may be) one of the public authorities, for whose benefit the activities of the juvenile source as a covert human intelligence source are to take place;
“relevant person”, in relation to a juvenile criminal conduct authorisation, means a person holding an office, rank or position with a relevant investigating authority in relation to the authorisation;
and in this subsection, “guardian”, in relation to a juvenile source, has the same meaning as “guardian of a child” in the Children Act 1989 (see section 105 of that Act).
(8) No provision made by or under this section affects the power to make additional provision by order under section 29B(4)(c) or (10) in relation to the grant of a juvenile criminal conduct authorisation.”
(2) The Regulation of Investigatory Powers (Juveniles) Order 2000 (S.I. 2000/ 2793) is amended in accordance with subsections (3) to (8).
(3) In article 2 (interpretation)—
(a) in the definition of “relevant investigating authority”, after “authority”” insert “, in relation to an authorisation under section 29 of the 2000 Act,”;
(b) after that definition insert—
““relevant investigating authority”, in relation to an authorisation under section 29B of the 2000 Act, means the public authority, or (as the case may be) one of the public authorities, for whose benefit the activities as a source of the source to whom the authorisation relates are to take place;
“relevant person”, in relation to an authorisation under section 29B of the 2000 Act, means a person holding an office, rank or position with a relevant investigating authority in relation to the authorisation;”.
(4) Before article 3 insert—
“Authorisations under section 29 of the 2000 Act”.
(5) In article 3 (sources under 16: prohibition), after “authorisation” insert “under section 29 of the 2000 Act”.
(6) In article 5 (sources under 18: risk assessments etc.), after “An authorisation” insert “under section 29 of the 2000 Act”.
(7) In article 6 (sources under 18: duration of authorisations), after “an authorisation” insert “under section 29 of the 2000 Act”.
(8) After article 6 insert—
“Authorisations under section 29B of the 2000 Act
7 Sources under 16: prohibition
(1) No authorisation under section 29B of the 2000 Act may be granted authorising criminal conduct in the course of, or otherwise in connection with, the conduct of a source if—
(a) the source is under the age of 16; and
(b) the relationship to which the relevant conduct would relate is between the source and—
(i) the source’s parent, or
(ii) any person who has parental responsibility for the source.
(2) “The relevant conduct” means the conduct of the source which the authorised conduct would be in the course of or otherwise in connection with.
8 Sources under 18: additional requirements
(1) An authorisation under section 29B of the 2000 Act may not be granted or renewed in any case where the source to whom the authorisation relates is under the age of 18 at the time of the grant or renewal unless the person granting or renewing the authorisation—
(a) has considered whether the relationship to which the relevant conduct would relate is between the source and—
(i) a relative or guardian of the source, or
(ii) a person who has for the time being assumed responsibility for the source’s welfare; and
(b) where the relationship would so relate, has taken that fact into account as a particular consideration.
(2) In paragraph (1)(a), “the relevant conduct” has the same meaning as in article 7.
9 Sources under 18: arrangements regarding best interests of the source
Where the source to whom an authorisation under section 29B of the 2000 Act relates is under the age of 18, the arrangements referred to in section 29B(4)(c) of the 2000 Act must be such that there is at all times a relevant person who has responsibility for safeguarding and promoting the best interests of the source.
10 Sources under 18: duration of authorisations
In relation to an authorisation under section 29B of the 2000 Act where the source to whom the authorisation relates is under the age of 18 at the time the authorisation is granted or renewed, section 43(3) of the 2000 Act is to have effect as if the period specified in paragraph (b) of that subsection were four months instead of twelve months.”
(9) The amendments made by subsections (3) to (8) to the Regulation of Investigatory Powers (Juveniles) Order 2000 (S.I. 2000/2793) are to be treated as having been made under section 29B(4)(c) or (10) or section 43(8) of the Regulation of Investigatory Powers Act 2000 as the case may be (and may be amended or revoked under those powers accordingly).”
4D: Insert the following new Clause—
“Criminal conduct authorisations: safeguards for vulnerable adults
After section 29C of the Regulation of Investigatory Powers Act 2000 (inserted by section (Criminal conduct authorisations: safeguards for juveniles)) insert—
“29D Criminal conduct authorisations: safeguards for vulnerable adults
(1) This section applies in relation to the grant of a vulnerable adult criminal conduct authorisation.
(2) “A vulnerable adult criminal conduct authorisation” is an authorisation under section 29B for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source where that source is a vulnerable adult (“the vulnerable adult source”).
(3) For the purposes of this section, a “vulnerable adult” is a person aged 18 or over who by reason of mental disorder or vulnerability, disability, age or illness, is or may be unable to take care of themselves or to protect themselves against significant harm or exploitation.
(4) In addition to satisfying the requirements of section 29B, a person may grant a vulnerable adult criminal conduct authorisation only if the person—
(a) has considered the results of an appropriate risk assessment;
(b) believes that the risks of harm identified by that risk assessment have been properly explained to and understood by the vulnerable adult source; and
(c) has taken into account the need to safeguard and promote the best interests of the vulnerable adult source.
(5) “An appropriate risk assessment” means an assessment which—
(a) identifies and evaluates the nature and magnitude of the risks of harm to the vulnerable adult source arising in the course of, or as result of, the conduct authorised by the authorisation; and
(b) is carried out in accordance with provision made by the Secretary of State by regulations under this paragraph.
(6) For the purposes of subsections (3), (4)(b) and (5)(a), “harm” means—
(a) physical injury; or
(b) psychological distress.
(7) No provision made by or under this section affects the power to make additional provision by order under section 29B(4)(c) or (10) in relation to the grant of a vulnerable adult criminal conduct authorisation.””
4E: Clause 4, page 5, line 7, after “grant” insert “or renew”
4F: Clause 4, page 5, line 10, insert—
“(4B) In keeping under review the exercise of the power mentioned in subsection (4A), the Investigatory Powers Commissioner must, in particular, keep under review whether public authorities are complying with any requirements imposed on them by virtue of Part 2 of the Regulation of Investigatory Powers Act 2000 in relation to juvenile criminal conduct authorisations and vulnerable adult criminal conduct authorisations.
(4C) For the purposes of subsection (4B)—
(a) “a juvenile criminal conduct authorisation” is an authorisation under section 29B of the Regulation of Investigatory Powers Act 2000 where the covert human intelligence source to whom the authorisation relates is under the age of 18; and
(b) “a vulnerable adult criminal conduct authorisation” is an authorisation under section 29B of the Regulation of Investigatory Powers Act 2000 where the covert human intelligence source to whom the authorisation relates is a vulnerable adult within the meaning of section 29D(3) of that Act.”
4G: Clause 4, page 5, line 13, after “grant” insert “or renew”
4H: Schedule 2, page 10, line 1, leave out ““; or” and insert “—
“(ba) in the case of an authorisation under section 29B where the source is under the age of 18 (“the juvenile source”), the person—
(i) becomes aware of circumstances in which it is reasonably foreseeable that harm, within the meaning of section 29C(5), to the juvenile source would result from the authorisation,
(ii) is satisfied that the authorisation would no longer be compatible with the need to safeguard and promote the best interests of the juvenile source, or
(iii) is satisfied that arrangements for the juvenile source’s case that satisfy the requirements of subsection (3)(c) of section 29C no longer exist; or”
4J: Schedule 2, page 10, line 2, leave out “an” and insert “any”
Motion D agreed.
5A: Leave out lines 27 to 35.
Motion E1 (as an amendment to Motion E)
5B: Leave out lines 27 to 35 and insert—
“(6) If upon notification under subsection (3) a Judicial Commissioner determines that the authorisation should not have been granted—
(a) the person who granted the authorisation must be immediately informed,
(b) the Director of Public Prosecutions and the Director of Public Prosecutions for Northern Ireland must be immediately informed, and
(c) all further activities that will or might be undertaken pursuant to the authorisation are not “lawful for all purposes” under section 27(1).””
Motion E agreed.
Arrangement of Business
My Lords, I will call Members to speak in the order listed in the annexe to today’s list. Members are not permitted to intervene spontaneously; the Chair calls each speaker. Interventions during speeches or “before the noble Lord sits down” are not permitted.
During the debate on each group I invite Members, including Members in the Chamber, to speak to the clerk if they wish to speak after the Minister. I will call Members to speak in order of request and call the Minister to reply each time. The groupings are binding and it is not possible to de-group an amendment for separate debate. A participant who might wish to press an amendment other than the lead amendment in a group to a Division must give notice, either in the debate or by emailing the clerk.
Leave should be given to withdraw amendments. When putting the question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the question is put, they must make this clear when speaking on the group. We will now begin.
Counter-Terrorism and Sentencing Bill
Committee (2nd Day)
16: After Clause 31, insert the following new Clause—
“Review of sections 1 to 31
(1) The Secretary of State must arrange for an independent review of the impact of sections 1 to 31 of this Act to be carried out in relation to the initial one-year period.(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to imprisonment for offences of terrorism to conduct the review. (3) The review under subsection (1) must consider but is not limited to considering any evidence as to any effects of this Act—(a) by the imposition of longer prison sentences upon the reform or rehabilitation of those offenders on whom they are imposed;(b) upon the reform or rehabilitation of those offenders required to serve a greater proportion of their sentences in prison and a correspondingly smaller proportion on licence;(c) upon the radicalisation of prisoners other than those upon whom longer prison sentences are imposed or who are required to serve a greater proportion of their sentences in prison;(d) on the degree to which those prisoners upon whom a serious terrorist sentence is imposed are segregated from other prisoners.(4) The review must be completed as soon as practicable after the end of the initial one-year period.(5) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—(a) produce a report of the outcome of the review, and(b) send a copy of the report to the Secretary of State.(6) The Secretary of State must lay before each House of Parliament a copy of the report under subsection (5)(b) within one month of receiving the report.(7) In this section, “initial one-year period” means the period of one year beginning with the day on which this Act is passed.”Member’s explanatory statement
This Clause would require an independent review of the impact of sections 1 to 31 of the Act after one year, with particular attention to radicalisation in prisons and the effects of longer periods of imprisonment on reform and rehabilitation and radicalisation in prisons and of segregating serious terrorist offenders.
My Lords, by the amendments in this group noble Lords from around the House seek reviews of the impact of this legislation on the operation of our criminal justice system. Such reviews would consider: how we are dealing with terrorist offences, including the effects on the Prison and Probation Service and, in particular, the effects on prison capacity; the financial impact of the legislation; and the effect of the legislation on Northern Ireland.
The very fact that so many noble Lords seek such reviews, each with different emphases, demonstrates that however much the Bill’s provisions may chime with the prevailing public mood, for many of us they nevertheless cause uncertainty and misgivings. While we all recognise that terrorism must be dealt with extremely severely, on any view the Bill provides for radically harsher sentencing than we have had before. I suspect that the Minister and the Government recognise that this approach is not risk-free.
I shall concentrate on the review called for in the amendment in my name and the names of my noble friends Lady Hamwee and Lord Paddick. Our amendment is concerned with Part 1 of the Bill. To remind ourselves briefly of the ground we covered on day one in Committee, Part 1 deals first with sentences for what I might call ordinary criminal offences, punishable by two or more years’ imprisonment but aggravated by a terrorist connection; then, with serious terrorism offences and minimum custodial terms for offenders; with increased extended sentences for specified violent offences; and with other special custodial sentences for offenders of particular concern. The common threads running through all these provisions are, first, that judges’ discretion to impose more lenient sentences than prescribed in the legislation is considerably limited and, secondly, that terrorist offenders will generally spend much longer in prison than has been the case to date.
The review called for by our amendment is to be concerned, first, with the effect of the imposition of longer prison sentences on the reform and rehabilitation of those who serve them; secondly, with the likely outcome that longer sentences will mean offenders spending a greater proportion of them in custody and a lower proportion on licence; thirdly, with the radicalisation of other prisoners by those who will now spend far longer in custody and may have the dangerous potential to radicalise others who come into contact with them while in prison; and finally, on the segregation of serious terrorist prisoners serving these very long sentences. I make no apology for the fact that Liberal Democrats start from the position that while punishment plays an extremely important part in sentencing and that the more serious the offence the greater the punishment element in any sentence, nevertheless reform and rehabilitation, even in very long sentences, is a central purpose of sentencing.
Hope of reform and rehabilitation should motivate all who work within the system, as well as society at large. That belief is in our DNA. We do not believe that we should give up on serious offenders, even terrorist offenders. Nor do we accept that the lives of at least some among those whom we punish cannot ultimately be turned around.
Importantly, the review we seek calls for a person with professional experience of imprisonment for terrorist offences to be appointed by the Secretary of State, in consultation with the Independent Reviewer of Terrorism Legislation. It was therefore heartening to note that on 25 January Jonathan Hall QC, the independent reviewer, issued a statement saying that he had decided to review the subject of terrorism in the prison estate in England and Wales as part of his annual review of the terrorism Acts. His statement said that he was particularly interested in criminal behaviour which effectively encourages terrorism within prisons, in the status and influence of terrorist prisoners within them, in any connection to prison gangs, and in how to secure evidence of terrorist offences or terrorism-related activity in prisons. He is clear that his focus will be on terrorism because there is, he says, considerable literature already on radicalisation and extremism in prisons. Nevertheless, I would be surprised if he did not feel driven to consider, as part and parcel of considering terrorist activity within prisons, the question of radicalisation and extremism, and its effect on the prison population as a whole. Inevitably, he will also consider how to achieve reform and rehabilitation for as many terrorist offenders as possible.
One of any reviewer’s main starting points will be the work and findings of the 2016 Acheson review of Islamist extremism in prisons, probation and youth justice, the recommendations of which many noble Lords mentioned earlier in the passage of the Bill. In setting out the context of his review, Ian Acheson wrote:
“Islamist ideology can present itself in prisons as a struggle for power and dominance in which perceived weaknesses are exploited by a gang culture which threatens or undermines legitimate authority and security”
and that Islamic extremism
“should therefore be a greater and more visible priority for NOMS, led by people with the time and resource to act swiftly and with authority.”
I make no apology for concentrating on Islamic extremism in the context of the type of terrorism that this country, and many others, have faced in recent years.
Perhaps the most significant of that report’s recommendations was that those few extremists who presented what Acheson called
“a particular and enduring risk to national security through subversive behaviour, beliefs and activities”
should be segregated in specialist units, where they would be given “effective deradicalization” programmes. It has been very disappointing that although the Government accepted this recommendation, as they did nearly all the Acheson recommendations, there has been so little action. When I have asked Ministers about this failure of promised implementation, I am afraid that the responses have been defensive or, worse, complacent.
In the wake of the London Bridge attack by Usman Khan on 1 December 2019, Professor Acheson wrote in the Times:
“I have evidence that the separation centres that I recommended be established to incapacitate those posing most risk are not filling up because of institutional timidity to deal with a terrorist threat that is more acute than senior officials want to admit.”
He then said that
“I remain deeply unconvinced that this service has the corporate leadership, competence or will to deal with terrorist offenders. I’m not sure any tangible progress has been made since my review concluded three years ago.”
My concern is that since the disastrous attacks in 2019, the Government have been so focused on tougher sentencing that other aims, just as important or even more so, have been sidelined.
We should not forget four further recommendations of the Acheson review:
“systematic recording of the promotion of extremist beliefs and threats of violence to staff, with tougher sanctions … suitable training provided for staff … tackling the availability and source of extremist literature … improved capacity for responding swiftly to serious violent incidents, with … improved coordination with the police”.
For all that this report was hard-headed—unsurprising from a former prison governor and expert in counterterrorism—it was still focused on deradicalisation, reform and rehabilitation. It still attributed great importance to the involvement of the probation service.
The significance of this approach is quite simply this: in the light of appalling attacks, the public and this Government demand tougher sentences for terrorists. They may be justified, but the importance of reviewing the impact of Part 1 of this legislation in just over a year’s time is to highlight the continuing need to deal better with extremism and terrorist offenders, both within prisons and on licence. But tougher sentencing alone can never provide a complete answer or anything like it. Our approach must be subtler, more principled, better organised and a great deal more sophisticated.
My Lords, I make a short intervention to support the amendment so ably moved by the noble Lord, Lord Marks; it is carefully put and more than adequate. I support it because it is important that a close look is had into the workings of these important sections. One year should be sufficient, with the emphasis on consultation, which is vital to get an independent reviewer to take the temperature of how the Act is working.
In my many visits to prisons in my professional career, I was deeply aware of how prisoners live cheek by jowl. Particularly in the absence of other subjects of conversation, I would have thought, as a lay man, that prisons were fertile ground for radicalisation. It goes without saying that expert advice is needed. We are considering longer sentences, reform and rehabilitation, radicalisation and segregation—all vital subjects—and we should look at how the Act is working. With those few words, it is a pleasure to commend the amendment.
My Lords, as my noble friend Lord Marks of Henley-on-Thames has outlined, our Amendment 16 in this group calls for a review of the impacts of Part 1of the Bill. Why is such a review needed? The Explanatory Notes to the Bill describe its purpose as being to better protect the public from terrorism, effectively by two main means: ensuring that serious and dangerous terrorist offenders spend longer in custody, and supporting their disengagement from extremism and their rehabilitation.
I am pleased to note there is no longer any pretence that longer sentences act as a deterrent to terrorist offenders. There was no such claim from the noble Lord, Lord Parkinson of Whitley Bay, either, when he introduced the Bill to this House on Second Reading. That will save some time.
The two premises on which the Bill is based appear to be these: that the public are better protected from terrorists if terrorist offenders are in prison longer; and that a range of tailored interventions while they are in prison will lead to their disengagement from extremism and their rehabilitation. In short, the longer they are in prison, the less likely they are to pose a threat to the public and the more time is available to deradicalise and rehabilitate them.
The first and most obvious problem with the first premise is that you cannot detain every suspected terrorist for the rest of their lives, despite the Government’s attempts in this Bill to achieve exactly that for some terrorist offenders. With an increasing number of exceptions were this Bill to be passed unamended, you cannot normally lock up suspected terrorists indefinitely or so curtail their freedoms as to effectively deprive them of their liberty indefinitely. We will come to the indefinite deprivation of liberty without charge or trial when we come to the changes to the terrorism prevention and investigation measures.
The Government’s current Prevent strategy, at paragraph 3.5, says that
“radicalisation is driven by an ideology which sanctions the use of violence; by propagandists for that ideology here and overseas; and by personal vulnerabilities and specific local factors which, for a range of reasons, make that ideology seem both attractive and compelling.”
Such propagandists exist in our prisons. The Government’s argument that the longer someone is in prison, the more time there is to support their disengagement and rehabilitation can also work against their deradicalisation and rehabilitation.
First, it provides more time for them to be radicalised, or further radicalised, by propagandists in prison. There is clear evidence that this is happening. On 25 January, the Times reports the current Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, as saying that there was an increasing “drumbeat” of links between prison and terror attacks, with offenders not being properly punished for owning radical material, preaching extremism and inciting violence. The Times notes that the man given a whole life sentence last month for murdering three men in a park in Reading in a terror attack last year was befriended by a radical preacher while serving an earlier prison sentence. Secondly, if these vulnerable people believe that the sanctions imposed on them are disproportionate, or that the system that led to their imprisonment was unfair, the ideology promulgated by these propagandists is made to appear even more attractive and compelling.
No one would argue against a proportionate sentence of imprisonment for someone convicted in a court of law of a terrorist offence, as my noble friend Lord Marks has just said, or that, for a limited time, a suspected terrorist who is believed to present a real and immediate threat should not have their liberty to carry out a terrorist attack prevented while evidence is gathered upon which to base a trial in a court of law. However, paragraph 3.6 of the same Prevent strategy says:
“There is evidence to indicate that support for terrorism is associated with rejection of a cohesive, integrated, multi-faith society and of parliamentary democracy. Work to deal with radicalisation will depend on developing a sense of belonging to this country and support for our core values.”
Disproportionately long sentences of imprisonment and indefinite deprivation of liberty without charge or trial would reinforce this rejection of our cohesive, integrated, multifaith society and parliamentary democracy. They would undermine any sense of belonging to this country and any support for our core values. Indeed, they begin to call into question some of our core values.
What evidence is there that it is easier to develop a sense of belonging to this country and support for our core values while someone is in prison, compared with when they are on licence in the community? The Times article I quoted previously reports the Independent Reviewer of Terrorism Legislation as saying that encouraging and inciting terrorism were being
“successfully combated in the community”,
unlike the failure to address these issues in prison. Although he is to conduct a review of what is happening in prisons, it appears to be limited to examining how terrorism is detected, disrupted and prosecuted behind bars and whether improvements can be made, rather than the comprehensive review called for in our amendment.
For all these reasons, there is serious doubt whether Part 1 of the Bill will achieve what the Government intend by it; therefore, our Amendment 16 is necessary. Other amendments in this group call for a review of the financial impact of the Bill and the impact on the prison population, both of which could hamper the effectiveness of any deradicalisation or rehabilitation strategy and any attempt to prevent radicalisation or further radicalisation in prison. Reviews are called for on the specific impact of the Bill in Northern Ireland and on the National Probation Service, and we support these amendments as well.
My Lords, we have had a wide-ranging introduction to this group from both the noble Lords, Lord Marks and Lord Paddick. As the noble Lord, Lord Marks, said in his introduction, the amendments in this group call for a series of reviews of different aspects of the system. He expressed his misgivings and uncertainty that the system as it currently operates is succeeding and concluded his remarks by saying that a more sophisticated approach is needed.
Amendment 16 is the first amendment regarding the independent review of provisions, to which the noble Lord, Lord Marks, has spoken. The second in the group, Amendment 34 in the name of my noble and learned friend Lord Falconer, is concerned with the financial impact of the changes. The amendment would require the Secretary of State to publish a financial impact assessment of the Act within three years of it coming into force, and this would include the financial impact of extended sentences, extended licence periods, and any additional staffing resources needed as a result of the Act.
Amendment 36 in my name calls for a capacity impact assessment. This amendment would require the Secretary of State to publish an assessment of the capacity of the system as a whole. In their 2016 White Paper, Prison Safety and Reform, the then Government committed to £1.3 billion to create 10,000 new prison places by 2020 and to renovate the existing estate. The 2020 target was later changed to 2022; so far, only 206 new prison places have been built, with 3,360 under construction. The main reasons for those failures and delays were the delays in agreeing and receiving funding to build new prisons. This meant that the construction work began later than planned. In addition, HMPPS was not able to close all prisons and replace them with new ones, due to high demand, which meant it received less money from the sales of old prisons.
Amendment 38, also in my name, proposes a review of the legislation as it affects Northern Ireland. All measures in the Bill as they pertain to Northern Ireland would be reviewed annually with the Northern Ireland Minister for Justice and the Northern Ireland Executive; a report would also have to be published and laid before both Houses of Parliament. This would ensure that the Government worked constructively with the Ministry of Justice and Northern Ireland Executive, and that all the Bill’s implications were subject to regular review through the prism of Northern Ireland.
Amendment 39 proposes a review of the National Probation Service. This would require the Government to commission and publish a review of the impact of the Bill on the National Probation Service within 18 months of it coming into force. The review would have to consider, among other things, the level of probation support offered to offenders, as well as the number of specialist staff employed by the National Probation Service, and their skills.
I have received some briefing material from Napo—formerly the National Association of Probation Officers —which makes the point that the probation service is in crisis and that many of the offender management teams are struggling to maintain a balance between experienced staff and newly qualified staff. It is not uncommon to find teams in the community where the most experienced officer has only two to three years of post-qualification experience. As recruitment increases, as it is projected to increase, the pressure on the frontline staff will grow, with more probation officers being moved into management and training roles to support the trainees. The point made by Napo is that a properly remunerated and supported expansion of the probation service is needed to face the challenges ahead.
I have spoken to my amendments in detail but the scene-setting—if I may put it like that—by the noble Lord, Lord Marks, is most appropriate. We are having some very radical reviews, including Jonathan Hall’s review of terrorism and its effect on other prisoners in the prison system and, as he put it in a quote that I picked up as well, the “drumbeat of links” between terrorism and the prison service. I hope that the Government will look favourably on those individual aspects, which need review.
My Lords, Amendment 16 would introduce a new clause requiring the Secretary of State to arrange for an independent review of the impact of Clauses 1 to 31 in the first year of the Act coming into force. I must respectfully disagree that this amendment is necessary. As the House has heard in Committee, the Government already have an Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and his remit covers the Bill. Indeed, as the noble Lord, Lord Marks, referred to, he has announced his intention to conduct a review in prisons, which we welcome. He has already shown his expertise and engagement with the Bill in its entirety by providing detailed comments on its provisions—contributions that I know this House and those in the other place valued highly. We have every confidence that he will continue to provide valuable and important scrutiny following its enactment and through the prisons review which he will be undertaking. I therefore disagree that there is any need to appoint another reviewer to focus on just some of the Bill’s provisions.
That said, I recognise that the noble Lord, Lord Marks, and others indicated particular concerns by specifying the areas which such a review ought to consider. I shall take these points in turn, which I hope will assuage noble Lords’ concerns. First, there is the question of the impact of longer sentences—or a longer proportion of the sentence spent in custody—on prisoners’ rehabilitation as a result of the Bill. I start by reflecting that within a year of the Bill’s commencement, the impact of longer sentences will not yet be available for us to analyse. Importantly, however, the rationale behind longer custodial sentences for the most serious and dangerous terrorist offenders is one of public protection, which is this Government’s primary concern. Ensuring that these offenders are incapacitated for longer meets this ambition. The noble Lord, Lord Marks, spoke of the crucial importance of the hope of reform and rehabilitation, and we on this side share that hope. It is not that we consider that rehabilitation is unimportant; it will remain central to the work that is undertaken with terrorist offenders in custody.
Second is the question of the Government’s ability to protect other prisoners from radicalisation within the prison estate and the use of separation centres to this end. These issues are raised in reference to the Acheson review recommendations. I assure the noble Lord that most extremist prisoners are and should be managed in the mainstream prison population, with appropriate conditions and controls.
Across the entire prison estate, we have, and seek to maintain, robust case-management processes to manage the risks posed by extremists and to prevent them radicalising others, including co-located offenders. The Government, however, have designed separation centres to hold the most subversive extremist prisoners, preventing them spreading their malicious ideology to other prisoners. These centres were never intended for use with significant numbers of terrorist offenders, as this would undermine their main purpose: to separate the most dangerous from those most vulnerable to radicalisation. The Government use these centres only when it is necessary and, for reasons of national security, the Government do not confirm the numbers of prisoners in individual separation centres.
Finally, I note that the Bill will be subject to the usual practice of post-legislative scrutiny three years after the Bill receives Royal Assent, as is the case for all legislation. In light of this, and the existing position of the Independent Reviewer of Terrorism Legislation, who already has authority to review this legislation, I do not believe this amendment to be necessary.
Amendment 34, spoken to by the noble Lord, Lord Ponsonby of Shulbrede, and in the name of the noble and learned Lord, Lord Falconer of Thoroton, would insert a new clause requiring the Secretary of State to lay a report within three years on the financial impact of the provisions of the Bill, specifically detailing the effects of extended sentences and extended licence periods; the expansion of the sentence for offenders of particular concern regime; the use of polygraph testing as a licence condition; and, as a result of these measures, any increased staffing resources required in Her Majesty’s Prison and Probation Service. I appreciate from the terms of the amendment that there is a concern to examine the cost of these measures when set against the impact assessment already published by the Government.
I make the point that numbers of terrorism offences are so low, comparatively speaking, that the impact of the measures the Bill puts in place is minimal. The impact of licence periods will depend on judicial discretion in setting them and, if the impact assessment carried out and published by the Government was inaccurate, that would be shown up by the process of post-legislative scrutiny. I cite to the Committee a number of figures to inform what I have just said. On 31 December 2020, there were 78,180 in the prison population. The impact assessment estimates the impact of the measures will be around 50 additional cases at any one time. On 30 September 2020, there were 222,657 cases on the probation caseload. The Bill’s impact assessment estimates that the impact of the measures will be around 50 additional case at any one time. The additional polygraph testing as a licence condition is estimated to affect fewer than 150 offenders at any one time, at a cost of about £400,000 annually in steady state.
Therefore, our impact assessment and the figures that support it estimate that the measures in the Bill will have a minimal impact on the prison population and the probation caseload of fewer than 50 additional cases at any one time. This impact, though small, will build up gradually over time and so will not be felt immediately. We are therefore confident that these changes will not have a substantial financial impact on Her Majesty’s Prison and Probation Service. I assure the noble Lord, Lord Ponsonby of Shulbrede, that the Government are already providing funding to support our legislative changes: an increase of £90 million in funding for counterterrorism policing this year; an increase in the resources dedicated to training front-line prison and probation staff through the counterterrorism step-up programme; and an immediate £500,000 package for the Victims of Terrorism Unit. The Government will continue to publish data on prison population and probation caseloads, and we will carry out an internal review on polygraph testing. I do not believe that a legislative commitment is required or necessary to review the financial impact of these measures.
The noble Lord, Lord Ponsonby of Shulbrede, spoke also to Amendment 36, which would insert a new clause requiring the Secretary of State to lay a report on the potential impact of the Bill’s provisions on prison capacity. Again, I respectfully draw his attention to the impact assessment the Government published alongside the Bill, which has already made that assessment. The estimates I have already spoken of are based on recent trends in overall numbers of terrorist offenders being convicted. As the cohort of offenders affected by the Bill is small, these changes will have only a minor impact on prison capacity. We will always provide places, of course, for those sentenced to custody.
In addition to the impact assessment, as I have said, the Government routinely publish data on prison population statistics. I do not believe that a legislative commitment will provide any greater opportunity for scrutiny in this respect. It is worth underlining that the Government’s ambitious programme of improvement in this area—the counterterrorism step-up programme—will put more specialist staff in prisons, working directly with prisoners on rehabilitation, as well as providing intelligence and monitoring of such prisoners. This will make our prisons, and ultimately our streets, safer, an ambition that I am sure noble Lords will support. I know that that is a matter of agreement across the Committee. This programme will be important to ensure that prisons can manage any increased demand from terrorists serving longer in prisons in the near future. Therefore, it is not necessary for us to legislate for a further assessment of the potential impact of these measures.
The noble Lord spoke also to Amendment 38, which would insert a new clause placing a statutory requirement on the Government to review all measures in the Bill that relate to Northern Ireland, in consultation with the Northern Ireland Minister for Justice and the Northern Ireland Executive. This review would be required annually and to be published as a report and laid before Parliament. First, I assure him that in developing the Bill, despite the fact that terrorism is a reserved matter, we have carefully considered Northern Ireland’s unique history with terrorism and taken great care not to tamper with provisions enshrined in the Belfast agreement and, particularly, the Northern Ireland (Sentences) Act 1998. Furthermore, when we have found concessions viable, we have made them, as we demonstrated through our removal of clauses providing for polygraph testing in licensed conditions, following assurances from the Northern Ireland Executive that they are satisfied that the legislative power to use such measures exists already. That said, I remain of the view that we need to take a robust approach to terrorist offending wherever it occurs in the United Kingdom and whatever ideology it aligns itself to. We must avoid a two-tier approach to the sentencing and release of terrorists across the United Kingdom.
The most recent data shows that in 2019-20, there were just 14 convictions for terrorism-related offending in Northern Ireland, and just six in the previous year. With numbers at that level, I submit that there will be too little information on which to base an annual review. The same amendment was raised in the other place, and I respectfully remind the noble Lord that the opportunity already exists for the House to review the Bill’s impact in the relevant committee three years after it receives Royal Assent, through the post-legislative scrutiny process. A review clause of this nature is therefore not required. Reviewing the impact of a Bill after three years will provide a more meaningful opportunity for review. For these reasons, I am not persuaded of the benefit of an annual review of the Bill’s measures in Northern Ireland.
Amendment 39 would insert a new clause placing a statutory requirement on the Government to report on the impact of the provisions in the Act on the National Probation Service 18 months after its enactment. I assure the noble Lord, Lord Ponsonby of Shulbrede, that we have considered fully the impact on the National Probation Service of the measures in this Bill, which we consider to be low. We set out the impact in full in the published impact assessment.
I acknowledge the critical role that the National Probation Service plays in managing terrorist offenders. Last year, we tightened measures for terrorist offenders on licence to ensure that there is robust risk management from all relevant agencies. This will be strengthened further by the actions that the NPS and other agencies are taking in response to the MAPPA review recommendations from Jonathan Hall QC. We have also strengthened supervision arrangements, ensuring that all terrorist offenders report to their probation officer at least once a week, introducing increased restrictions on travel and extending GPS tagging.
However, we know that we must ensure that our probation services have the capacity and capability to manage such cases. That is why we have made a major investment in the NPS to establish a national security division, which will see a doubling of counterterrorism specialist staff. This will mean that, by March 2021, we will have sufficient specialist capacity and capability to bring the management of all terrorist offenders in the community under the national security division rather than their being managed by local probation areas.
Investing in NSD will mean not only that expertise is pooled and brought under one division but that we can dedicate resources to providing enhanced training to identify and challenge extremist behaviour. Recruits to NSD will receive both initial induction training and opportunities for continuous professional development over and above what the National Probation Service already offers. Crucially, this investment means that those specialist, trained probation officers will be able to deliver enhanced levels of supervision for these high-risk, complex cases. The department will, of course, review the progress made and impact of this Bill after three years, and we will keep resourcing for the National Probation Service under review. It will take time for these measures to be implemented fully. I submit that a report after only 18 months would not provide an accurate reflection.
In the light of these remarks, I ask the noble Lord, Lord Marks, to withdraw his amendment and hope that the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Ponsonby—who spoke to the noble and learned Lord’s amendment as well as to his own—will not move theirs when they are called.
My Lords, I am grateful to all noble Lords who have spoken and to the Minister for his detailed reply.
The noble and learned Lord, Lord Morris of Aberavon, with all his experience, had no difficulty in recognising the need for the review for which we have called, and clearly set out why a review after a year was appropriate. My noble friend Lord Paddick emphasised the need for deradicalisation and made the point, which ought to be obvious but was not addressed by the Minister, that everyone will be released at some stage so working to help them to be safe on release is therefore crucial. He also highlighted the clear danger that keeping offenders in prison for disproportionately long sentences may make them more likely to offend rather than less by further radicalising them, depriving them of hope and undermining their prospects of reform.
The noble Lord, Lord Ponsonby, in speaking to the amendments in his name and that of the noble and learned Lord, Lord Falconer, pointed out the risk of implementing increased sentences without a clear approach to making safe, new prison places available and to ensuring that the special implications for Northern Ireland are properly considered. Particularly important from my perspective, he stressed the role of the probation service.
In response, the Minister urged the Committee to accept that the Independent Reviewer of Terrorism Legislation is the appropriate reviewer of this legislation. I do not accept that. While his role is of course extremely important, it is not the same as someone tasked with a full review directed at the whole, overall impact of this legislation and focused on it. There is a well-established place for formal review after legislation is passed. Nor do I accept that it is necessary for reviewing the impact of this Bill that we should see, as the Minister appeared to suggest at one stage, what has happened on release at the end of offenders’ periods in custody or even after three years. What is necessary is to see, and see reasonably quickly, how these sentences are working and how they are affecting prisons and the prison population—including in particular how the presence of more, very long-term terrorists affects those already in prisons. We need to assess the financial and other impacts at an early stage and see how far the system is changed by the new long sentences.
The Minister questioned the impact of those long sentences because the number of prisoners is low—indeed, he went so far as to describe it as “minimal”—but that leaves out of account the impact of the number of prisoner years to be served by those on very long sentences and the importance of those prisoners within the system, including the danger of their glorification by other prisoners with an inclination towards terrorism.
For all the Minister asserting that enough review work and impact assessments have been done already, so that the reviews we seek are unnecessary, I disagree. However, in the hope that we will be able to discuss a programme for future review with the Government, I beg leave to withdraw my amendment at this stage.
Amendment 16 withdrawn.
Clause 32: Polygraph licence conditions for terrorist offenders: England and Wales
Amendments 17 and 18
17: Clause 32, page 28, line 30, leave out paragraph (a)
Member’s explanatory statement
This amendment and the amendment at page 29, line 14 are consequential on the removal of Clause 35.
18: Clause 32, page 29, line 14, leave out paragraph (b)
Member’s explanatory statement
See the explanatory statement to the amendment at page 28, line 30.
Amendments 17 and 18 agreed.
We now come to the group beginning with Amendment 19. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in debate.
19: Clause 32, page 29, line 18, at end insert—
“(4) In section 30 (use in criminal proceedings of evidence from polygraph sessions), in subsection (1), leave out “a released” and insert “any”.”Member’s explanatory statement
This amendment probes the use of information obtained through polygraphs against third persons.
My Lords, I appreciate that the Committee dealt with some clauses regarding polygraphs on the previous day in Committee, to the extent of filleting the Bill so that certain provisions do not extend beyond England and Wales. I apologise to the Committee that I did not retrieve Amendments 19A and 19B, which were tabled at that time. I shall save my more general remarks about polygraphs for the next grouping, as this is a narrow point.
Section 30 of the Offender Management Act excludes the use of two matters as evidence in any proceedings against a released person. Those matters are physiological reactions and a statement made during participation in a polygraph session. The amendment would make it clear that those matters could not be used as evidence in proceedings against a third party, its purpose being to ask whether that is now the case. When dealing with terrorism offences, there must be a lot of interest in the contacts of individuals—and, perhaps, a lot of interest in finding evidence that can be used against those other people.
I was very grateful for the teach-in arranged by the MoJ on how these sessions are currently run for sex offenders. During that briefing, it was explained to us that the sessions are not fishing or trawling for information; they are not wide-ranging discussions to see what an offender might let slip. They use closed questions, to which the answer will primarily be yes or no. It seems to me that some questions can lend themselves to inquiries about situations which may be relevant to other persons: for instance, “Since our last session, have you had any contact with, direct or indirect, or any news of X?” or “Has your wife had any news of X’s family?” My amendment is to probe whether the answers can be used in evidence against X. I beg to move.
My Lords, I regard this group and the next as essentially probing the Government on the use of polygraphs in relation to those convicted of serious terrorism offences. Like the noble Baroness, Lady Hamwee, I attended the briefing last week, during which the potential use of polygraphs was explained; I also found it useful. As I understand it, polygraphs will be a tool—not instead of anything else—to assist in monitoring by the National Probation Service of offenders who have been convicted of serious terrorist offences and are considered at high risk of causing further serious harm.
I need a little convincing that their use in monitoring sexual offenders is really a terribly useful precedent for the challenge presented by serious terrorist offenders, who often have particular ideological convictions which may make detecting lies or inconsistences rather a different challenge from serious sexual offenders, although I understand that polygraphs have been used by the National Probation Service since about 2013.
I suspect piloting may not be particularly easy, given the numbers involved. We all know from the terrible events following, for example, what happened at Fishmongers’ Hall how challenging it is to assess whether someone has been successfully rehabilitated or not. During the last group, the noble Lord, Lord Marks, stressed how important it was for there to be “effective deradicalisation”. I am sure all noble Lords agree that is a desirable aim, but it is something of a holy grail. As we discussed in Committee last week, effective deradicalisation has been a significant challenge for those responsible for managing offenders, not just in this country but in many others where Islamic terrorists and other extremists have presented problems.
I understand the primary purpose of this Bill to be protecting the public from the very serious consequences of offences committed by these offenders. That does not preclude the possibility of rehabilitation, but I think the balance in the public’s view is very much in favour of protecting them.
I understand that there will be an internal review of this polygraph testing—the noble and learned Lord, Lord Stewart, said so in response to a previous group—and that it is considered that it may involve something like 150 offenders, a relatively small cohort. He also said the responsibility for these offenders might, as I understand it, eventually be transferred to a specialist branch of the National Probation Service—the NSD. Experience of handling terrorist offenders in particular would certainly be desirable.
Although I look forward to the Minister’s response, this process of assessing how best to assist in monitoring serious offenders seems very challenging. Those with that responsibility need all the help they can get, given the difficulties they will encounter. At the moment, I see considerable advantage in using these polygraphs.
My Lords, may I say how much I agree with the noble Lord, Lord Faulks, in his warning against equating too closely the use of polygraphs in monitoring sexual offenders with their use on terrorist offenders, who obviously pose a very different problem? The Minister should consider that.
Sixty years ago, in 1961, I was proudly driving my red and black little Austin A40—new car, brand new wife—along the twisting road from Mold to Denbigh in north Wales. It was a snowy day, just like today—that is what reminded me of the incident. We were not in a hurry. I approached a bend well on my own side of the road at a reasonable speed. There was a car parked on the bend; a large lorry coming from the opposite direction at speed saw it late, swerved out to overtake it on my side of the road and, as he pulled back, his rear end hit my car.
I gave evidence in the Denbigh Magistrates’ Court and found it very stressful. A police sketch of the accident was produced which purported to show where my car had ended up, with a 30-foot, perfectly straight skid mark. I told the chairman of the Bench I thought my car had finished some 20 yards short of where it was shown on the plan. He said, “Don’t you appreciate this is a carefully prepared police plan of your accident?” I said, “Well, it is entitled ‘rough sketch plan’.” Everybody laughed—except the chairman. The defendant was acquitted of careless driving, with the chairman commenting that the wrong person had been prosecuted —it should have been me. However, the lorry driver’s insurers paid me and my wife damages for personal injury without any questions.
The point of this lengthy reminiscence is that witnesses are giving evidence up and down the country in Crown Courts and magistrates’ courts every day, but nobody has ever thought to put a polygraph test on them as they are questioned. Your pulse may be racing, your blood pressure through the roof; you may be sweating, wishing you were anywhere other than perched in a witness box above the well of the court with myriad sceptical eyes looking you up and down—not because you are lying, but you may be afraid that someone, like the chairman of the Denbigh Bench, may not believe you. There are also those pesky lawyers paid to make you out to be a liar with their ridiculous version of the event. That is why the present Domestic Abuse Bill calls for special measures for victims and their witnesses and the present overseas operations Bill has a presumption against prosecution altogether, to save old soldiers the stress of recalling bad times.
The purpose of polygraph testing, as I said at our last meeting on 26 January, is to measure the physiological response of a person to questioning. It depends on the proposition that a person who lies will demonstrate it by changes in his blood pressure, perspiration, heartbeat and so on. I pointed out last time that these conditions are explicable by the stress of being questioned, by being thought to be lying, even by the state of your stomach-turning digestion, or by fear.
Because these physiological changes do not demonstrate that a person is lying, at least to the degree of certainty required for a conviction, evidence of the result of a polygraph test is excluded in court. It is therefore very good policy that, so far, the courts of this country have refused to accept polygraph results as admissible evidence.
We have already discussed whether such evidence should be used where terrorists are released from prison to monitor their continuing behaviour in the community. The purpose of this amendment is to probe whether the Government harbour any desire to go any further: whether this restraint will be maintained if the results of such a test appear to be relevant to a future terrorist trial in a court. That is when principle is put to the test—when there appears to be an indiscriminate danger to the public.
I support this amendment and I look forward to hearing the Minister’s comments on the proposal.
My Lords, as my noble friend Lady Hamwee and others have explained, Clause 32 puts the imposition of polygraph conditions on serious terrorist offenders released on licence on the same footing as applies in the case of serious sexual offences. I say at the outset that I agree with the noble Lord, Lord Faulks, and my noble friend Lord Thomas that different considerations apply with terrorist offenders and sexual offenders.
Yesterday, in Committee on the Domestic Abuse Bill, we discussed the use of polygraph testing for domestic abuse offenders released on licence—and again, different considerations apply. Nevertheless, I said then that my outright opposition to the use of polygraph testing anywhere in our criminal justice system had become more nuanced when the proposed use was for the limited purpose of monitoring compliance with licence conditions on release from custody. My outright opposition hitherto stemmed from the lack of proven reliability of polygraph testing and from the perception at least that it is directed to providing binary answers, true or false, to complex evidential questions—hence the use of statements such as “He failed a polygraph test”. Lawyers naturally prefer a system which depends on the careful and balanced evaluation of evidence, often conflicting or inconsistent, rather than certainty.
In part, as I said yesterday, I have become more sympathetic to the use of polygraph testing with the help of the comprehensive and very helpful learning session organised by the MoJ last Thursday, which was attended by a number of Peers, including the noble Lord, Lord Faulks, and my noble friend Lady Hamwee, as they have said. In addition, I accept that there are legitimate reasons for the use of polygraph testing to provide information to the police and others investigating serious offences and, in the case of terrorism, often potential offences that threaten multiple lives. However, accepting polygraph testing for those limited purposes does not mean that we can accept polygraph testing in criminal cases, and that will remain our position unless and until the reliability of polygraph testing is far more conclusively established than it is now. I agreed completely with the observations of my noble friend Lord Thomas of Gresford on how stress can affect evidence given in a court and on how falsely polygraph testing may skew such evidence.
Our Amendment 19 would amend Section 30 of the Offender Management Act to ensure that evidence of any statement made by a released defender in a polygraph session, and any of his physiological reactions while being so examined, could not be used in a criminal prosecution of any person, not just the released offender. It is right that this amendment is billed as a probing amendment, but that is plainly right. However, at the moment, Section 30 does not say that. As the noble and learned Lord, Lord Wolfson, said yesterday in answer to me on the domestic abuse provisions:
“Section 30 of that Act provides unequivocally that any statement or any physiological reaction made by an offender during the polygraph session may not be used in criminal proceedings in which that person is a defendant.”—[Official Report, 8/2/21; col. 41.]
Therefore, the Government accept the principle that evidence obtained as a result of polygraph testing, or flowing from physiological reactions under such testing, cannot be used as evidence in a prosecution brought against the person being tested. It must be right that it should not be possible to use such evidence in the prosecution of anybody else, and the reasons mentioned by my noble friend Lord Thomas apply equally to that situation.
It therefore seems that, while this is a probing amendment, it is an amendment that the Government can and should plainly accept without compromising their position or anything that the Bill is trying to achieve, and that it is simply consistent with the position taken by the Government that polygraph-testing evidence cannot be used to secure a criminal conviction.
I stress, in the context of the danger posed by terrorism, that I take the point made by the noble Lord, Lord Faulks, that deradicalisation is difficult to achieve. He described it as a holy grail. I emphasise that nothing we say would prevent those administering polygraph testing to released offenders from passing on to the police for the purpose of preventing terrorism information revealed to them. Nor should the police be inhibited from using such information passed on to them in investigating and avoiding terrorist offences.
Amendments 19A and 19B would have the effect of insisting on the affirmative resolution procedure for regulations making provision relating to the conduct of polygraph sessions further to a terrorism-related offence. I suggest that the need for the affirmative resolution procedure is obvious. I would be grateful, however, if the Minister could confirm a number of other points about the regulations proposed, not just for the conduct of polygraph sessions but for using information obtained in the course of such sessions in relation to recall from licence.
My understanding is that, as with sexual offences, and as we were assured yesterday with domestic abuse offences, no decisions on recall from licence can be taken as a result of a test indicating deception. If the result of a test implies that an offender is lying about breach of a licence condition or about further offences, for example, I understand that investigators may ask the police to investigate further before taking any positive action. There is therefore to be no recall on the basis of a failed test, which will lead to recall only if the police find other evidence establishing that a breach has occurred. I hope that will be confirmed in a terrorist context as well.
I also have some concerns about cases where an offender makes a disclosure in a polygraph test, confessing to behaviour that is a breach, and who might therefore be recalled. I asked yesterday about this and was told by the noble and learned Lord, Lord Wolfson, that recall in domestic abuse cases may follow if
“disclosures made voluntarily by the offender during the polygraph examination … reveal that they can no longer be safely managed in the community. Those circumstances would also lead to a return to custody. The important point to bear in mind in that regard is that that is no different from a situation in which an offender makes such disclosures without the polygraph licence condition.”—[Official Report, 8/2/21; col. 41.]
I take that point, but I regard it as important that, before a disclosure in a polygraph test can lead to recall, there should be a hearing where the disclosure is either admitted by the offender to be true or can be tested so as to ensure that it is voluntary, genuine and true before a recall based on it is affected.
Yesterday I posed a number of questions to the Minister in relation to domestic abuse polygraph conditions. They are reported in Hansard, but the same questions are pertinent today in connection with this Bill. They concerned in particular: first, a guarantee that the results of polygraph testing carried out under the clause could not be used to secure convictions of a criminal offence; secondly, that recall from licence on the basis of a disclosure in a polygraph test of a breach of a licence condition will not be possible without a further hearing—the point I just mentioned; and, finally, whether evidence of a breach of a polygraph licensing condition could ever be itself based on evidence from a failed polygraph test. It would be helpful to have those answers in the context of this Bill relating to terrorist offences as well.
It is a pleasure to follow the noble Lord, Lord Marks of Henley-on-Thames. He has covered much of the area with which I am concerned in these sensible probing amendments. The next amendment, Amendment 20, which talks about piloting polygraph tests in this area, deals in effect with the same concerns.
My understanding of the position that the Government are advancing is that we are now concerned only with England and Wales because they deleted the Scotland and Northern Ireland provision that was there before. In effect, they are applying the principles in the Offender Management Act 2007 on polygraph tests. Therefore, the first question is: should one put a polygraph condition into the licence conditions of a terrorist offender? As I understand it, a polygraph condition is that the offender has to agree, if asked, to a polygraph. Will it be automatic that such a condition will be imposed for terrorist offenders? What will be the basis on which such conditions will be imposed?
We on this side are very keen that the authorities should have every reasonable tool that they can to try to prevent terrorist offenders, including those who are released on licence. I am keen to probe whether this particular provision contributes to that. As I understand it from the Government’s proposal, the purpose of the polygraph sessions that will be included in the licence condition will be only to monitor the offender’s compliance with the other conditions of his licence or improve the way in which he is managed during his release on licence.
In relation to the first of those two—monitoring compliance with the other conditions of his licence—does that mean that it will be used to see whether he is in fact complying? If he fails a polygraph test, could that be a basis for recalling him to prison on the basis that he has failed to comply with the other conditions of his licence? If it is the Government’s intention not just to rely on the failure of a polygraph test before recalling an offender to prison, where is that reflected in the statute or in the Bill?
In addition to those questions, to what extent is the Minister worried that, if somebody passed a polygraph test, it would lead the authorities not to make further investigations about an offender’s possible breaches of compliance of the conditions of his licence? Additionally, in relation to the second purpose of polygraph testing—namely, to improve the way in which he is managed during his release on licence—can the Minister give us some examples of what that would mean in practice?
Can I deal with the legal use of the answers to polygraph tests? Section 30 of the Offender Management Act 2007—this has already been referred to by the noble Lord, Lord Marks of Henley-on-Thames, and the noble Baroness, Lady Hamwee—says that evidence of
“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”
cannot be used against that released person for any offence. In answer to my question, that of the noble Baroness, Lady Hamwee, and that of the noble Lord, Lord Marks of Henley-on-Thames, can the Minister confirm whether that means that those two things can be used in relation to proceedings against somebody else? It would appear from Section 30 of the Offender Management Act 2007 that they could be. Can they be used on their own for recall proceedings, or are recall proceedings simply an administrative act—in which case, the question of whether they can be relied on alone to justify a recall arises?
My Lords, in responding to the amendment and the various points put to me, I will bear in mind and seek to avoid falling into the trap of being one of those “pesky lawyers” that, as the noble Lord, Lord Thomas of Gresford, reminded us, still exist.
In that regard, let me turn to the substance of the amendments, particularly Amendment 19 put down by the noble Baroness, Lady Hamwee. This amendment seeks to amend Section 30 of the Offender Management Act, which relates to the use of polygraph evidence in criminal proceedings. I understand that the noble Baroness and others may have concerns that evidence gathered from the conduct of polygraph examinations could be used against a third party in a criminal trial. I know that we covered this yesterday in the Domestic Abuse Bill, but I want to take a moment to record my thanks to those in my department who arranged the learning session for a number of noble Lords, including the noble Lords, Lord Marks and Lord Faulks, and the noble Baroness, Lady Hamwee. I understand that they found it helpful and informative, which perhaps indicates that those sessions could be used more often. I assure the noble Baroness, Lady Hamwee, and the Committee that it is neither the intention nor the effect of the polygraph testing provisions of the Bill that they will be used in criminal proceedings against third parties.
In response to the specific point put to me by the noble Lord, Lord Thomas of Gresford, we do not harbour any desire to go further than the provisions in the Bill.
Polygraph examinations are now well established as a risk management tool in England and Wales. They have been used successfully, as the Committee has heard, with sex offenders since 2013. In the context of terrorist offenders, which I acknowledge represents a different cohort, they are—if I can put it this way—an additional tool in the toolbox. They will be used, to respond to the point made by the noble and learned Lord, Lord Falconer of Thoroton, where it is necessary and proportionate to do so as part of the assessment of the risk offenders pose in the community while on licence and how that risk can best be managed.
As I made clear to the noble Lord, Lord Marks, yesterday in the Committee sitting on the Domestic Abuse Bill, Section 30 of the Offender Management Act makes clear that
“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”
may not be used in criminal proceedings in which that person is a defendant. While that section does not expressly provide for such information to be precluded from use against others in criminal proceedings, which is what this amendment seeks to achieve, I do not believe the amendment to be necessary.
This is because, although there may be circumstances where information obtained through the polygraph test relating to a third party can be passed from probation to the police to make further investigations, the polygraph material would not be suitable for use as evidence in its own right against a third party. Any allegation against a third party would ultimately need to be tested in court. The court would have to consider, among other things, whether the polygraph evidence was admissible in such other criminal proceedings and the effect of the hearsay rule. While that would ultimately be a matter for the judge in the particular case, noble Lords will appreciate the great difficulties that would be presented by the hearsay rule.
The noble Lord, Lord Faulks, said that sex cases are different from terrorism cases. He is of course right, but he was also right to say that what is presented by terrorism cases is a difficult and challenging task. That is why, to use my earlier metaphor, this is another tool in the toolbox which we would like the services to have available to them. In that regard, I can assure Members of the Committee that polygraph testing will not replace any other risk assessment tools or measures, it is an additional source of information that would otherwise not be available. On that basis, I would invite the noble Baroness, Lady Hamwee, to withdraw the amendment as it is unnecessary.
I turn now to Amendments 19A and 19B, which are tabled in the name of the noble Lord, Lord Paddick. The amendment to Clause 35 would require regulations relating to the conduct of polygraph examinations to be subject to the affirmative procedure. Perhaps I may remind the Committee that we have already tabled our intention to remove Clause 35 from the Bill, alongside Clauses 33 and 34 dealing with the introduction of polygraph testing as a licence condition in Scotland and Northern Ireland, as part of our efforts to secure legislative consent from each Administration. We covered this in the first sitting of the Committee. It does not reflect a change in policy for England and Wales. As I have said, we firmly believe that polygraph testing is an additional and useful tool.
In that regard, polygraph examinations will be used to monitor compliance with licence conditions based on what has happened and will not ask about future behaviour. I think it was the noble Baroness, Lady Hamwee, who put to the Committee an example of the type of questions that might be asked. She was right to frame those questions in the past tense. A polygraph examiner might ask, for example, “Did you enter those premises?”, if that was something which had been prohibited by the licence conditions. The question would not be, “Are you going to enter the premises next week?” The questions look at what has happened and past behaviour rather than future intent. They are not used as a way of trying to catch offenders out, but as a measure to identify the extent to which the person on licence is complying with the conditions of the licence.
Although I accept, as the noble Lord, Lord Thomas of Gresford, reminded the Committee, that giving evidence in court can be a stressful experience, it was interesting to note that he pointed out that we have provided special measures for vulnerable witnesses in the Domestic Abuse Bill. As I understood it, he used that as an example of a case where we recognise that giving evidence can be stressful. Of course, we have also provided for the polygraph examination of the perpetrators of domestic abuse in that Bill. Just as it is in the Domestic Abuse Bill, it is also here; it is an additional tool in our toolbox.
I come to a question put to me by the noble Lord, Lord Marks, which I think was repeated by the noble and learned Lord, Lord Falconer of Thoroton: if a person who is subject to a polygraph examination “fails” a question, can they be recalled immediately? There are two parts to the answer and let me give both. First, what do we mean by “failing”? We use the term as a form of shorthand, and the Government factsheets use it because they are written in what we hope is plain English so that members of the public can understand them, but it is not the correct professional term. The correct terminology that is used by examiners in reports is whether there is a significant response or no significant response. That more nuanced term makes it clear that we are not dealing with a question of passing or failing here; rather it is about whether the examination results indicate that the response has been truthful or not.
That is why, coming to the second part of the question, we do not recall offenders to custody on a significant response in itself. In answer to the question put to me by the noble and learned Lord, Lord Falconer of Thoroton, that is not in the Bill, but it is firm policy. Therefore, “failure”, a term that the Committee will now appreciate is a form of shorthand, does not by itself or by default trigger a recall. Where it is safe to do so—for example, with the addition of new licence conditions—the offender can continue to be managed in the community. However, if a disclosure is made which indicates that the risk has escalated beyond the point where the offender can be managed safely in the community, they can be recalled to custody.
In this context—I reiterate the point that I made yesterday in the domestic abuse context—that is the same whether the disclosure was made during the course of a polygraph examination or in a meeting with a probation officer. The polygraph condition, therefore, provides another way in which to examine the manner in which the offender has behaved and is a further source of information on which to base risk-management decisions.
By the use of the negative instrument, Parliament is given the opportunity thoroughly to scrutinise the use of polygraph testing under licence, through debates such as this and those that would occur in the future. The negative resolution approach is appropriate because the conduct of polygraph examination sessions is an administrative matter. Therefore, should a minor adjustment to those procedural rules be needed, we consider that it should not be necessary for that to be subject to an affirmative resolution.
It may be the case, because risk management is a dynamic process, that once the provisions are in force new risks emerge that are particular to the management of terrorist offenders, which the Committed has noted is necessarily different to the management of sex offenders, and the Government would need to be able to respond quickly to that change by making adjustment to regulations. That would be a further reason to use the negative procedure, because it is more flexible. Other than that, polygraph testing for terrorist offenders on licence will be subject to the same standards, degree of rigour and oversight as it is for use with sex offenders.
I hope that I have responded to the first point put to me by the noble Lord, Lord Marks of Henley-on-Thames, as regards recall. Yesterday, he asked—I was going to say a barrage—a list of questions about polygraphs in the domestic abuse context, and I understand that he has repeated them, mutatis mutandis, in this context. I have responded to a number of the questions that I was unable to respond to yesterday in the domestic abuse context, given the time, because I anticipated that he might repeat them. I will go through the Official Report. If there are any questions that he put yesterday that I have not responded to today, I will write to him because he will be getting a letter from me in any event, as I promised yesterday.
Specific questions were put to me by the noble and learned Lord, Lord Falconer of Thoroton. Perhaps I can respond to his point about the pilot in the next group, which relates to his amendment that specifically focuses on that issue. Otherwise, I think that I have responded to his questions but, again, if a review of the Official Report indicates that I have missed one, I hope that he will permit me to write to him.
For those reasons, I invite noble Lords to withdraw or not move their amendments.
My Lords, I have received a request from the noble Lord, Lord Robathan, to speak after the Minister.
My Lords, I apologise for not adding my name, which I put down to speak but not on a particular group. Yet again, I find myself as the only person taking part in the debate who is not a lawyer. I shall come back to that later.
In layman’s terms, I joined the Zoom call on polygraph testing last week, to which other noble Lords referred, and it was extremely useful. I thank Heather Sutton from the probation service, Professor Don Grubin and others for laying it on because it explained to me what polygraph testing is. They explained straightaway that a polygraph is not a lie detector but an additional tool to enhance the safe and effective risk management of offenders and could not be used as evidence.
I did, in fact, ask why sex offending was used as the only precedent for using polygraphs on terrorists. I think that I sort of understood the response, which was that it was a question of denial. That is what they sought to find out. It was a very useful teach-in session.
That is why I am slightly puzzled that we are discussing these amendments. As I said, I am not a lawyer. The noble and learned Lord, Lord Falconer, reminded us that law can be a gift that keeps on giving. We were reminded of that only at the weekend. We heard from three Liberal Democrats. I think they all said—the noble Lord, Lord Thomas of Gresford, certainly did—that you cannot use a polygraph test as evidence. If you cannot use it as evidence against the specific person against whom you have done the test, surely by implication it cannot be used as evidence against somebody else. My noble friend the Minister specifically pointed to hearsay. It seems that we are slightly arguing about angels on the head of a needle: it will not be used, so why on earth are we arguing about it? This was presented as a probing amendment, but it seems to be probing something that we do not really need to probe
The point of polygraph testing is that, as an additional tool, we would get away from the case of Usman Khan at Fishmongers’ Hall, who had convinced his mentor, Jack Merritt, that he was de-radicalised. Jack Merritt believed in him and his redemption, and Usman Khan killed him. Surely we should use these additional tools if they have any substance or credibility. From what we heard in the teach-in last week, polygraph testing has some credibility.
Let us please back the use of an additional tool until proved otherwise, because frankly we are dealing with something that I guess probably none of us in this Chamber or on this call understand. We do not understand why somebody would get into an aeroplane, train for months in the United States and then fly that aeroplane into the twin towers. We do not understand suicide bombers. We do not understand the radicalisation that takes place in these people, so surely we should give the Government every tool they can possibly have. I certainly back them on this.
My Lords, I am grateful for the question put to me by my noble friend. As I said, that is precisely what the Government seek to do: to provide an additional tool for the management of these offenders. The point he made regarding deradicalisation is, if I may say so, very perceptive. It is a difficult part of the overall structure we are putting in place in the Bill, as we have in other legislation.
I am delighted to hear that my noble friend found the teach-in session helpful. I am particularly grateful to him for putting on record the names of the people who presented it. I know that they put a lot of work into putting it together.
The only point I would respectfully disagree with my noble friend on is one that I had cause to point out to another Member of your Lordships’ House—I think last week. One must really stop apologising for not being a lawyer. I think my noble friend did it twice. I pointed out last week that what is regarded as a cause for apology in this House is generally regarded as a badge of honour everywhere else. The question put to me by my noble friend exemplifies how this is a matter for lawyers and non-lawyers.
My Lords, at the briefing by the MoJ, I was one of those who volunteered—at some point when we are able to travel again—to undergo a test, because I would like to experience what it is like. I sound a note of caution about the use of private—sometimes confidential but certainly private—sessions. They are terrific and helpful, but only so far; I do not believe that they can take the place of public debate. I could respond at some length to the noble Lord, Lord Robathan, but it would be outside the scope of the amendment. The purpose of scrutiny and its place in the development of legislation mean that it must be undertaken in public. I do not mean to sound too pompous in saying that, but it is something that I believe very profoundly.
The Minister apologised for being a pesky lawyer, but I think that being a pesky lawyer or an activist lawyer is a badge of honour. I disagreed with the comment of my noble friend Lord Thomas that people would not want to apply polygraphs in criminal proceedings. I can imagine that there are a lot of situations when people in court think that they would very much like to apply a polygraph to some witnesses—but that is by the by. I have told myself that I would not take up too much time with this response, because we have a lot of amendments to get through.
Inevitably, perhaps, this turned into a more general debate. On the specific amendment, we are told that it is unnecessary, and that what one might take—I cannot think of the right term— from a polygraph would be unsuitable for use in court, because it would be hearsay. I shall have a look at that after today, but I think that there is a little bit of circularity in all that. Certainly, in the real world, the questions that might be asked would, I am sure, provide material for the police, if not the prosecution—but that is a common-sense response. I beg leave to withdraw the amendment.
Amendment 19 withdrawn.
Clause 32, as amended, agreed.
Clauses 33 and 34 disagreed.
Clause 35: Polygraph licence conditions in terrorism cases: supplementary provision
Amendments 19A and 19B not moved.
Clause 35 disagreed.
We now come to the group consisting of Amendment 20. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press the amendment to a Division must make that clear in the debate.
20: After Clause 35, insert the following new Clause—
“Review of polygraph testing on terrorist offenders
(1) The Secretary of State must, within six months of this Act being passed and before sections 32 to 35 come into force, conduct a pilot of the use of polygraph testing on terrorist offenders.(2) The outcome of the pilot must be reported to Parliament within 12 months of this Act being passed.(3) The report must include—(a) data on the number of terrorist offenders who have been subject to polygraph testing during the pilot;(b) an explanation of how the results of polygraph tests have been used during the pilot;(c) an analysis of the effect polygraph testing has had on the licence conditions of terrorist offenders;(d) data on the number of terrorist offenders who were recalled to prison on the basis of polygraph test results;(e) a recommendation from the Secretary of State as to whether sections 32 to 35 should enter into force following the pilot; and(f) evidence from independent research on the reliability and value of polygraph testing of terrorist offenders.” Member’s explanatory statement
This new Clause requires the Secretary of State to conduct a pilot test of the use of polygraph testing on terrorist offenders and report the outcome to Parliament, in addition to setting out evidence for the reliability of polygraph tests based on independent research.