House of Lords
Monday, 1 February 2016.
Prayers—read by the Lord Bishop of Norwich.
Death of a Former Member: Lord Roper
Saudi Arabia: Executions
My Lords, the British Government are firmly opposed to the death penalty in all circumstances and in every country. We have expressed our concern to the Saudi authorities, most recently during my honourable friend Tobias Ellwood’s visit to Riyadh on 25 January—last week. The British Government do not shy away from raising legitimate human rights concerns, but we believe that we will be more successful discussing cases privately with Saudi Arabia than criticising it publicly.
My Lords, it is widely reported that in King Salman’s first year of office, 2015, Saudi Arabia executed more people than in any of the previous 20 years. Many of those people were executed for political dissent. The last time we discussed this, on 13 January, the noble Baroness was urged from all sides of this House to express those concerns to the Saudi Government. She has just told us that they have done so. What was the Saudi Government’s response, and will they distinguish between political dissent and other crimes?
My Lords, during his visit, Tobias Ellwood had meetings with members of the National Society for Human Rights, the Saudi Arabian Ministry of Foreign Affairs and members of the Shura Council. He also met advisers, so he covered a wide variety of people with whom he could have this conversation. Naturally, as I explained in my Answer, we prefer to make our points in a private environment. The Saudi Arabian Government and others in Saudi Arabia are clear that we will not stop coming forward with our views on each and every case where someone has been arrested and faces the death penalty.
My Lords, of course, our diplomatic relationship with Iran has only recently resumed, and it is important that we are able to nurture it. Iran will be under no misunderstanding about the strength of opinion of the British Government—indeed, of all British Governments in recent decades—that the death penalty is wrong in principle, wrong in practice and can undermine a successful society.
No, my Lords, our experience has been that with certain countries that is not the case and it can in fact be counterproductive. We are always careful to ensure that we make best use of our diplomatic voice in private. Saudi Arabia is not the only country that responds better to that kind of exchange. However, that does not stop me from being as public about this matter as I am today.
My Lords, the Iranian and Saudi Governments are both extremely volatile. As we know, what is happening in Saudi spills over into Yemen and if we are not careful, it will also spill over into Bahrain. I ask the Minister to exercise as much pressure as we can on the Saudi Government to understand that it is almost impossible to defend them at times, given the behaviour of their regime.
My Lords, the point lying behind the words of the noble Lord, Lord Soley, is certainly right: all countries must have regard to the fact that their actions may lead to regional instability. It is important in the Gulf and Middle East that all countries recognise the impact their actions can have.
My Lords, I am aware that there is a newspaper report to the effect that one person expected to be an adult at the time of his execution may not have been, but there is not yet proof of that. Certainly, with regard to three juveniles being held at the moment under a penalty that includes the death sentence, we have been given assurances, including most recently by the Saudi Foreign Affairs Minister, that those sentences will not be carried out. Of course, whatever we think of Sharia law—we may have different views on it—some countries have the death penalty and we need to work to ensure that it is removed.
My Lords, Saudi Arabia has a substantial Shia minority. Will this Government, in the private conversations they have with the Saudi Government, tell them very strongly that the last thing we want is to see Middle Eastern politics deteriorate into a Sunni/Shia international conflict? The way that the Saudis treat the Shia minority is important regarding whether that will happen.
My Lords, it is important in all countries, whether there is either a Shia majority or a Shia minority, that all those holding the faith are treated with respect. It is worth noting that when Shia members at a mosque were killed so appallingly by a suicide bomb this weekend, the Sunni Foreign Minister not only ensured he made a public statement but commiserated with the Shia minority.
My Lords, it is the turn of the Conservative Benches. I urge noble Lords to allow the Minister to sit down before they stand up to ask the next question.
My Lords, I welcome my noble friend’s preference for private representations in this matter. Would she not agree that megaphone diplomacy is almost always less effective in the long run and is therefore not to be supported? Will she also bear in mind the importance of our commercial relations with Saudi Arabia, not least in the defence field?
My Lords, megaphone diplomacy can indeed be counterproductive. One must consider its use in each and every country. Our trade relationship with Saudi Arabia is important from the point of view of security but also complements our work on human rights. Our work on human rights is never in any way diminished by our trade relationship with Saudi Arabia.
My Lords, while not disputing in any way the efforts made by the Minister in her quiet diplomacy, there is no evidence whatever that that is working—in fact, the opposite is true. Is it not time to speak out clearly and loudly, making it plain to the Saudis exactly how we feel publicly?
My Lords, I have to disagree with the noble Lord when he says that it has not been working. One of the factors is that constant work behind the scenes can lead to some joint understanding of, for example, the introduction of the EU minimum standards with regard to the implementation of the death penalty—that it should not apply to those who are pregnant, who have learning difficulties or who are minors. So with that, and perhaps with women’s rights, it is important to point to where there have been changes for the better.
Banks: Internet Banking
My Lords, it is the responsibility of firms to ensure the resilience of their IT systems. However, the financial authorities take the resilience of the sector seriously, which is why the Financial Conduct Authority and the Prudential Regulation Authority recently completed a technology resilience review of the largest UK retail deposit-taking firms. The review’s outcomes have not been published, but the authorities are developing work plans to ensure that further improvements are made to IT systems, and customers protected.
Two years ago, the FCA said:
“We want to make sure that the banks have resilient IT systems in place that are able to cope with consumer demand, so customers aren’t left financially stranded or disadvantaged”.
It has not happened. HSBC alone had three systems failures in January, the latest last Friday, the most critical day of the month. Even the Bank of England systems collapsed at the end of 2014. Can the Minister say that the banks are devoting sufficient time and resource to long-term solutions and not just looking for an even more short-term patch? What assurance can he give that the FCA is really on top of all this?
My Lords, it is true that there have been incidents, but none as serious as the one that occasioned the “Dear Chairman” review in 2012. Since then, they have not been as serious as that. I assure the noble Lord that the FCA and the PRA are taking this very seriously. They have initiated a second “Dear Chairman” exercise, which has sought to assess the improvements made since the first exercise and the extent to which good resilience practices are embedded with those firms. The regulators are aware that firms are spending considerable amounts on their IT systems.
My Lords, given the significant dislocation and inconvenience caused by recent non-malign interventions on the bank systems, what degree of confidence does the Minister have that they are in a position adequately to protect against malign interventions, such as hacking, breaches of privacy, and theft of financial details and indeed of finance itself?
My Lords, it would be very unwise for anyone to say that they were totally confident that cyberattacks are totally protected against. What I can say is that the Government are taking it seriously, and the Chancellor has announced that they have doubled spending on cybersecurity to £1.9 billion. The Financial Policy Committee has been given a remit by the Chancellor specifically to look at operational resilience. The PRA has financial stability as its core remit.
The people who suffer most from this are indeed the customers, particularly on the last occasion—on what was probably their first pay day this year. What action are the Government ensuring is taking place to make sure that those consumers can be compensated without each of them having to take their own case and prove their own personal discomfort?
Of course, the point of setting up the regulatory system is that it is for the regulators to deal with consumer detriment, which is exactly what the Financial Conduct Authority has done. I believe that the banks involved in this have said that they would not allow consumers to suffer detriment.
My Lords, does the Minister recognise that part of the problem is that the long-standing banks have computer systems that go back a long way and which are often very difficult to modernise? They cannot suddenly turn off the whole of their system for a fortnight and put in a brand new one, so existing systems keep getting added to until the scope for mistake and failure if anything gets greater.
I accept that old IT systems are more difficult to modernise than starting from scratch. That is why many challenger banks are now in the pipeline, ready to compete with the older banks. The Government support challenger banks and encourage customers who wish to change their banks to do so, and 2.1 million customers have done so under the CASS system.
My Lords, the unmodernised IT systems that the noble Lord, Lord Flight, just described add to the cost of every transaction by every customer. Does the Minister believe that this is an issue of customer detriment that ought to be investigated by the FCA? Will he back long-term bank investors who have been calling for far more disclosure of how the banks spend their IT money so that they can identify risks and support the banks that are making the necessary long-term investment?
I agree that disclosure should take place within market norms, and that commercial organisations should be encouraged to disclose. I completely accept that. As far as the expense is concerned, it is a bit difficult; either we want the banks with old IT systems to bring them up to date or we do not, and to do so will cost money.
My Lords, what are the Government doing to pursue the perpetrators of fraud on the internet? The Select Committee several years ago recommended that the American practice be used, whereby those defrauded on the internet are required to report that fraud to the police before the bank is allowed to deal with it. Are the banks are obliged to report fraud to the police so that someone can pursue it in a co-ordinated way?
In support of my noble friend Lord Reid, this problem is getting exponentially worse. Is it not right to say that banking and the money markets are effectively part of our critical national infrastructure? As was just said, although we are now encouraging people to report attacks on their systems, there have been some huge attacks—for example, on the New York Stock Exchange—where victims have refused to comment on it because they are scared of denting investor confidence. It is crucial that these things are reported so that we can learn lessons and move forward.
I am not sure the noble Lord is correct that the problem is getting exponentially worse. However, I accept that the threat is evolving and changing all the time, and we certainly cannot be complacent. The Government have set up the Computer Emergency Response Team to co-ordinate responses to cybersecurity incidents that threaten critical national infrastructure, and it is certainly the case that the regulators require all firms to report any cyber-related or operation-related incidents in their IT systems to the regulator.
Anti-social Behaviour, Crime and Policing Act 2014
My Lords, the Government have not carried out any such assessment. However, we have made it clear in the statutory guidance that anti-social behaviour powers should not be used against reasonable activities such as busking, where this does not cross the line into anti-social behaviour.
My Lords, that is not particularly reassuring. There is a real problem: scores of public space protection orders, thousands of community protection notices and tens of thousands of dispersal notices have already been issued routinely on an arbitrary basis against street entertainers, young people and the homeless for many legitimate, non-harmful activities such as busking, skateboarding and even carrying a golf bag. This is chilling. Is it not high time that we took stock of these powers and amended the guidance—and, if necessary, the primary legislation—before our freedoms are eroded any further?
I think that the position of the Government is very clear on this. Buskers are not criminalised. Indeed, we have seen some very good initiatives being taken at a local level. The noble Lord will be aware of the Busk in London initiative right here in London. What we need to see is more voluntary arrangements in place at a local level. I believe that about seven or eight councils have thus far signed up to the London voluntary code. We need to encourage the remaining boroughs out of the 32 to do so as well.
My Lords, in December last year the Metropolitan Police justified the use of the Anti-social Behaviour, Crime and Policing Act to prevent a busker performing in Romford on the grounds that,
“street performing attracts thieves as large crowds gather”.
Yet they do not seem to take any action when even larger crowds gather to watch street performing in Covent Garden. Will the Minister accept that better statutory guidance is needed to avoid heavy-handed policing?
What is required is for local councils to learn and look towards good practice. We have seen examples of good practice in place and have also seen how the Act has been used effectively—the transition from having 19 elements within the anti-social behaviour orders to having six has helped. But this is very much a matter for local authorities. We have seen good practice around the country, which needs to be replicated in those areas where we have seen such acts as the noble Lord just described.
If the noble Lord, Lord Clement-Jones, is suggesting that police powers are forcing people to sleep rough on the streets, perhaps it is relevant to ask whether it is not true that there are now 20 times as many hostel places appropriate for people sleeping on the street as there are people sleeping on the street?
My noble friend raises an important issue in relation to housing and the need for more effective social housing. The challenge for all of us across the country, not just for central government but for local government as well, is to ensure good-quality, affordable housing for all. We all want to see the eradication of street sleeping.
My Lords, does the Minister understand that one of the big problems out there is the very steep rise in rough sleeping? There are not enough beds, either hostel beds or other sorts of beds such as detox beds, for them to go into. There has been an unprecedented rise since before 1997 in the number of people sleeping rough on our streets, which is giving local authorities and others massive problems. What will the Government do about it?
The noble Baroness’s question goes wider than busking, but I can tell her that of course the Government have taken action; they have undertaken the biggest housebuilding programme that we have seen for decades. It is important that we work with local authorities to identify where the housing challenges are, face up to that crisis and address the housing issue. As I have already said, the issue of housing is a challenge not just for us in central government but across the country for local government as well.
I remind the Minister that the Question refers to homeless people—it is not exclusive to busking—and therefore the question from my noble friend was entirely legitimate. The reality is that the number of households accepted as homeless has risen by over a third since 2010, while the number of people who sleep rough has increased by over 50%. The Minister seeks to tell us about all the measures the Government are going to take, but could he tell us why they allowed this situation—the increase since 2010 in the number of homeless people and the number of people sleeping rough—to arise in the first place?
The noble Lord should also look at the record prior to 2010 and what his own party did. We have taken forward the biggest housebuilding project that we have seen for decades. There is an acute problem as regards the housing crisis and people sleeping rough on our streets; we are seeking to address it, but we must work hand in glove with local authorities.
My Lords, will the Minister care to comment on the availability—and on government policy on the availability—of housing for homeless people? In my experience, few of the people I have met who are homeless and sleeping on the streets will benefit from the Government’s housing policy, which is to build lots of houses, including those at £400,000. How much do the Government believe should be spent specifically on the homeless?
The Government have taken a raft of different initiatives on building affordable houses and a raft of different initiatives to encourage home ownership. The Rent to Buy scheme is another good example of what the Government have looked towards—ensuring innovative solutions to the housing challenges people face, including those who are looking to buy a home for the first time.
My Lords, the United Kingdom retains the right to recognise a Palestinian state when we judge it can best help bring about peace. We strongly believe that achieving a negotiated solution to the conflict is a priority and that bilateral recognition alone would not end the occupation.
I thank the Minister for that Answer—the usual answer, if I may say so. Is she aware that, at the United Nations General Assembly on 22 December last year, the UK representatives voted for a resolution that recognised the,
“Permanent sovereignty of the Palestinian people in the Occupied … Territory, including East Jerusalem … over their natural resources”?
Could the Minister please explain to the House how the Palestinians can have this control unless we follow the example promised by the French Government in the last 24 hours since their offer of talks has broken down? Can we not do this and recognise Palestine as a sovereign state and persuade other countries to do so? Will the Minister also explain how, in the mean time, the Government will seek to protect the few remaining natural resources that the Palestinians have before Israel takes them all?
My Lords, the noble Baroness refers to a United Nations resolution. She may be aware that our team in the United Nations, led by Ambassador Matthew Rycroft, negotiate the best terms they can with regard to resolutions so that the language is as close to being realistic as possible, but there always have to be compromises on those matters. We did so against the background of maintaining the policy that I set out in my first Answer: that it is important that we have a negotiated solution. That is when there would be a two-state solution, and that would be followed by a discussion about the ownership of resources. Sadly, we are not in that position yet. I note what the noble Baroness says with regards to the reports today that the French Foreign Minister, Monsieur Fabius, has announced that the French will try to organise an international conference on the Middle East peace process in the coming weeks. Whatever conferences we have, and however welcome an exchange of views, the only thing that will bring about peace is for both Israel and the Palestinians to come together to agree those terms; terms that I have set out in detail on previous occasions.
My Lords, history teaches us that, when an Arab leader has direct talks with Israel, the result is territorial compromise and peace—look at Jordan and look at Egypt. Does the Minister agree that, instead of political point-scoring, Members of this House—I draw the attention of the House to my non-financial interests—could use their influence with the leadership of the Palestinian Authority to encourage them to stop inciting their young people, and really help the Palestinian people by encouraging them to return to the negotiating table without delay?
My Lords, all those who have the interests of peace at heart will want to bring together the sides that disagree to negotiate. I notice that, just recently, Secretary-General Ban Ki-Moon made the following comment,
“as we continue to uphold the right of Palestinians to self-determination, let us be equally firm that incitement has no place, and that questioning the right of Israel to exist cannot be tolerated”.
My Lords, we all like the language of a negotiated solution, and sooner or later that is what must happen. But does the Minister agree that there is an increasingly uncomfortable comparison between the way in which the international community responds when Russia is involved in breaches of international law by violating its boundary with its neighbouring country and the response of the international community towards Israel, which for more than 50 years has violated international law by the occupation of a neighbouring country, by the building of a wall and by the continuing illegal occupation that makes a two-state solution nearly impossible? Is it not time that we had a more robust response to these flagrant breaches of international law?
My Lords, the noble Lord is right to point out that the Israeli occupation of the Palestinian territories flouts international law. We have made that clear in the past. We have urged Israel to obey the law and have pointed out that it should withdraw. The position that Israel takes on occupying Palestinian territories makes it more difficult to achieve the two-state solution that we wish to see.
My Lords, did the Minister see the report in the Times last week that two Palestinian journalists in Gaza had been arrested and tortured by Hamas because they had written newspaper articles critical of that administration? Can she assure the House that there is no question of recognising a Palestinian state associated with Hamas until basic civil rights are respected?
My Lords, we have made it clear that Hamas needs to stop its aggressive actions and sending its rockets into Israel and that the Palestinian Authority needs to take responsibility and control of the administration in Gaza to avoid incidents such as that described by the noble Lord.
My Lords, does the Minister agree with the position taken in October 2014 by the Catholic Bishops’ Conference of England and Wales and the Church of England bishops that,
“it is the reasonable aspiration of all peoples to belong to a state and enjoy the merits of full and active citizenship”?
Although the security of Israel is an absolute requirement, would not a principled recognition of Palestinian statehood facilitate rather than hamper renewed negotiations?
Access to Medical Treatments (Innovation) Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
Committee (3rd Day)
Relevant documents: 7th Report from the Constitution Committee, 17th, 18th and 19th Reports from the Delegated Powers Committee
Clause 17: Powers to carry out searches relating to driving licences
160: Clause 17, page 18, line 9, at end insert “and the authorised officer has reasonable grounds to believe the power should be exercised urgently.”
My Lords, Amendment 160 is tabled in my name and that of my noble friend Lady Hamwee, and we also have Amendments 161 and 162 in this group. We have considerable misgivings about the powers provided under the clause that I will address in a moment. Under subsection (3)(c) an authorised officer who is not a constable can enter and search premises for a driving licence only if a senior officer, such as an immigration officer not below the rank of chief immigration officer, has given authority in writing. However, subsection (4) states that that written authority,
“does not apply where it is not reasonably practicable for the authorised officer to obtain the authorisation of a senior officer before exercising the power”.
Our amendment would introduce the additional condition that,
“the authorised officer has reasonable grounds to believe the power should be exercised urgently”.
It may not be reasonably practical for the authorised officer to obtain the authorisation of a senior officer simply because it is not possible to make contact with the senior officer whether because of communication issues or that no senior officer is available immediately. In such cases the authorised officer should make a decision as to whether there are reasonable grounds to believe that it is necessary to exercise the power there and then. In the absence of any urgent need, the authorised officer should have to wait until higher authority is obtained from the senior officer.
Amendment 161 refers to proposed new Section 25CC(5) in circumstances where a driving licence has been seized and retained by the Home Office, which under paragraph (a) is until a decision is taken to revoke it. Our amendment seeks to place a time limit on that decision so that a driving licence cannot be retained for longer than one month from the date of seizure unless it is being revoked. It does not seem reasonable to us that someone whose driving licence is not in the end revoked should have his licence withheld from him indefinitely while a decision is made. Amendment 162 seeks clarification of subsection (5)(b) of the proposed new section. Clearly a driving licence that is being held by the Home Office must be retained until it has been revoked, until the time limit for lodging an appeal has passed, or until the appeal is determined. But it is not clear what is meant by retaining a driving licence if it is “subsequently revoked”. Can the Minister tell us what is intended by that phrase; what is it subsequent to?
Also included in the group is the intention to oppose the question that Clauses 17 and 18 stand part of the Bill, and I wish to address our opposition to both of these clauses. As I mentioned at Second Reading, when I was a police constable in the years leading up to the Brixton riots in 1981, police officers would routinely stop motor vehicles being driven by black men in particular and frequently arrest them on suspicion that they may be illegally in the country. The usual reason given was that they were a suspected overstayer. These arrests happened routinely simply because the person who was being stopped was evasive or did not appear to be co-operative. Together with the use of the offence of being a suspected person loitering with intent to commit an indictable offence under the Vagrancy Act 1824, commonly known as “sus”, and the disproportionate use of stop and search, a problem that continues to this day, relations between the police and the black community deteriorated to such an extent that the Brixton riots, or uprising, was the result. A conscious decision was taken by senior police officers in the light of such deterioration that the police service would no longer proactively enforce immigration law. Instead, police officers would help and support the Immigration Service if called upon to do so. The arresting of black drivers on suspicion of being overstayers stopped, to the considerable benefit of police/community relations.
Clause 18 creates an offence of driving when unlawfully in the United Kingdom. A person found guilty can receive a sentence of imprisonment, a fine or both, and the court can order the forfeiture of the car that was being driven by that person. It is police officers who have the power to stop motor vehicles and require the driver to produce their driving licence, not immigration officers. The burden of enforcing this part of the Bill will fall on police officers, and when I say “burden”, I mean it. The Government will want to see this law enforced. The police will come under pressure to proactively enforce immigration law for the first time in almost 30 years—30 years after the police service made a conscious decision to back away from proactive immigration law enforcement because of the damage that it was causing to police community relations.
The Minister may say, “Well, that was 30 years ago and a lot of progress has been made between the police and certain sections of the community in terms of police community relations”. I would say to him that the National Black Police Association—the current National Black Police Association—is also opposed to these clauses. It cites a survey of more than 10,000 drivers, conducted by Her Majesty’s Inspectorate of Constabulary and published in March last year, showing that 7% to 8% of white drivers responded that they were stopped in their vehicles by the police in the previous two years, whereas 10% to 14% of black drivers were stopped. Black drivers were more likely to have their vehicle searched and not to be given reasons for being stopped. Meanwhile, white drivers were more likely to be arrested and prosecuted than black drivers. This suggests that black drivers are more likely to be stopped by the police for no reason, and 73% of black respondents believe that the police unfairly target people from black and minority ethnic backgrounds for traffic stops. As I said, that survey was conducted by Her Majesty’s Inspectorate of Constabulary and published in March last year.
Liberty, in its briefing on the Bill, concludes that as there is an existing power to stop vehicles without reason, so added to this by the Bill, there would be nothing to prevent routine stops to ascertain immigration status which, as I have said, was what happened 30 years ago, and which caused so much damage to police community relations. An issue that we did not have 30 years ago was racial profiling of people who look like Muslims, on suspicion that they may be terrorists. In addition to young black men, in particular, being stopped driving by the police, we might add this time round, if this clause comes into effect, dark-skinned, bearded people also being targeted by the police in this way.
It will not be white Australians, New Zealanders, Canadians or Americans who will be stopped by the police to establish whether they are driving unlawfully in this country. If this law makes it on to the statute book and the police come under pressure to produce results, the majority of people stopped on suspicion of this offence will be black, British people who were born in this country. The people least likely to carry a document to prove that they are not an illegal immigrant are British people who were born here. What happens then? Fear not, we have Clause 17: “I am sorry, officer, I don’t have my driving licence on me”. If the officer believes that the driver is being evasive or obstructive, or that he may well be illegally in the country, he can then,
“enter and search any premises … occupied or controlled by the person”,
to search for his driving licence. A completely innocent British-born driver could end up having his home entered by the police without a warrant to search for his driving licence. While most people are given a form and seven days to produce their driving licence, we could end up in a situation where innocent, British drivers, suspected of being illegal immigrants, can have their home searched by the police.
These powers are disproportionate and could have significant impact on what are in some parts of the country already strained relations between the police and the black community. They should not be part of this Bill. We have seen recently the Home Secretary take bold steps to try to address the issue of disproportionality and stop and search—for example, changing the provisions of Section 44 of the Anti-terrorism, Crime and Security Act, to ensure that there is reasonable suspicion before somebody can be stopped and searched on suspicion of terrorism, whereas before no suspicion was required. Yet, the Bill seems to be going in the opposite direction.
Only yesterday the Prime Minister announced an inquiry by David Lammy into, among other things, why black people are disproportionately represented in the criminal justice system in general and in the prison population in particular. I can give Mr Lammy a heads up on this: that issue begins with the disproportionate stopping and searching of black people. These clauses are likely to make that disproportionality worse. I beg to move.
My Lords, I shall speak on the question of whether Clauses 17 and 18 should stand part of the Bill. Clause 18 proposes the creation of an offence of driving when unlawfully in the United Kingdom. Clause 17 proposes related search and seizure powers to be used by the police, immigration officers and others. I shall look at the practical, real-life implications of the driving provisions set out in the Bill.
We already have a law—Section 163 of the Road Traffic Act 1988—which allows for road traffic stops to be conducted by police without a reason. Traffic stops affect BME people disproportionately and are seen by BME drivers as a discriminatory tool. As the noble Lord, Lord Paddick, mentioned, a survey conducted by HMIC in 2014 found that 7% to 8% of white drivers had been stopped in their vehicle in the last two years, compared with 10% to 14% of black and minority ethnic drivers. Some 70% of black respondents agree or strongly agree that the police unfairly target people from an ethnic minority for traffic stops.
This is an incredibly serious problem for the police, who must command the trust and confidence of the community that they serve. But rather than addressing the issue, the Government intend, through the powers in the Bill, to pave the way for routine immigration checks during traffic stops to ascertain whether an individual is driving while an illegal immigrant. Noble Lords do not need to take my word for it: Met Chief Superintendent David Snelling told the Public Bill Committee in the other place that this is how he thinks the power would work in practice.
It is not hard to foresee the impact of such a move on police/community relations: police conducting traffic stops—which disproportionately affect BME drivers—and checking on their immigration status; police and immigration officials interchangeably searching individuals and their premises for driving licences on the basis that the individual is suspected of being here unlawfully. The Government’s Policy Equality Statement says that a decision to search a driver or their premises cannot be based on race, but, as the Race Equality Foundation points out:
“This ignores current evidence on car stops”.
It is small wonder that, as the noble Lord, Lord Paddick, said, the National Black Police Association warned that the Bill could return the UK back to,
“the bad old days of the SUS laws”,
“the conditions for making every person of colour in the UK a priori suspect, and a potential illegal immigrant”.
Many members of the House have lived through times when relations between the police and BME communities were in a critical condition. It is often in the area of powers to stop, search and question individuals that the spectre of discrimination has grown up. In his 1981 report, Lord Scarman identified unquestionable evidence of unfair stop and search being used on black people under the notorious sus laws. In 1999, the Macpherson report identified a clear core of racial stereotyping in stop and search, noting:
“If there was one area of complaint which was universal it was the issue of ‘stop and search’. Nobody in the minority ethnic communities believes that the complex arguments which are sometimes used to explain the figures as to stop and search are valid. In addition their experience goes beyond the formal stop and search figures recorded under the provisions of the Police and Criminal Evidence Act, and is conditioned by their experiences of being stopped under traffic legislation, drugs legislation and so called ‘voluntary’ stops”.
The Government argue that this new offence is about cracking down on unlawful immigration but it will affect countless British citizens. Inevitably, black and Asian Brits will bear the brunt. The enforcement of this offence, together with lax traffic powers, will lead to discriminatory interference with the right to private life of these citizens.
Provisions allowing for intrusive, discriminatory stops have continued to be one of the greatest flashpoints for police and BME communities, but in recent years significant progress has been made. The Home Secretary has played her part by taking positive steps to reduce the discriminatory impact of stop and search. In 2014, she told Parliament that,
“nobody wins when stop-and-search is misapplied. It is a waste of police time. It is unfair, especially to young, black men. It is bad for public confidence in the police”.—[Official Report, Commons, 30/4/14; col. 833.]
She is right, and I hope that she can be persuaded to bring the same insight to the provisions of this Bill.
I support the amendments to Clause 17, not least because alienating youths born and bred in this country results in their choosing to leave it to fight with groups that accept them, be it in terms of their creed or their colour. The measure will create active enemies of this country. It is unwise to do that to young people raised in this country with hope who then find themselves treated as terrorist suspects.
My Lords, I share some of the concerns of the noble Baroness, Lady Lawrence, who sketched out the problems with enacting this clause. As the Government rightly tell us, reasonable suspicion is a well-established precept in English law and policing practice. However, this does not mean that it is infinitely elastic in its application. A prior question needs to be asked when legislating: is it applicable in this circumstance, and with what effect?
This House is entitled to ask the Minister to consider that there will be circumstances where to exercise such judgment will involve the very real danger of identifying individuals who have leave to remain or who are not even subject to immigration control. Surely that would be an intolerable imposition. We know all too well that our fellow citizens do not take to being stopped for unfounded reasons.
Thus I return to the question I asked at Second Reading, which was not to query the idea of reasonable suspicion in all its existing applications but simply to ask what will constitute reasonable suspicion in these circumstances. A concrete example from the Minister would help.
The peril of such a path is made all the more obvious by the knowledge that alternative powers already exist, without this sort of provision. I trust that the Government will listen to the concerns expressed in this House about this clause and remove it from the Bill.
My Lords, I rise to lend support to the noble Baroness, Lady Lawrence, and to my noble friend Lord Paddick, in opposing the Questions that Clauses 17 and 18 stand part of the Bill. The two clauses extend stop, search and seizure powers—powers that have a long history of being acknowledged as contributing to racial disharmony and breakdown in community cohesion. In 1981, Lord Scarman, in his reports on the Brixton riots, concluded that mass use of stop and searches were a direct cause of the riots.
As recently as 2014, announcing reforms to stop and search under the Police and Criminal Evidence Act, the Home Secretary, Theresa May, said that,
“when innocent people are stopped and searched for no good reason, it is hugely damaging to the relationship between the police and the public. In those circumstances it is an unacceptable affront to justice”.—[Official Report, Commons, 30/4/14; col. 831]
BME people in Britain today suffer such affronts to justice usually with a certain amount of stoicism. However, this Bill seeks to expand powers of stop, search and seizure. It is inevitable—and I would go as far as to say it is the Government’s intent—that the number of stop and searches of those from visible ethnic minorities would increase under the powers contained in this Bill.
There is a great deal of documented evidence that current car stops are disproportionately targeted at those from BME backgrounds. I refer to the survey carried out by Her Majesty’s Inspectorate of Constabulary, already cited by my noble friend Lord Paddick and the noble Baroness, Lady Lawrence. Rather than going over the figures again, I draw attention to the sample size of the survey—more than 10,000—and contrast that with the evaluation of the pilot carried out in the West Midlands, on which the Government are basing their evidence for rolling it out nationally which has happened today.
The Race Equality Foundation expresses concern that the Government have produced no policy equality statement on these stop, search and seizure provisions, and I share that concern. I hope that the Minister will address that. Such respected bodies as Liberty and the National Black Police Association have expressed deep concerns about the potential of Clauses 17 and 18 to foster distrust and disharmony between the police and the public. Both organisations express regret that the good work of the Home Secretary to date to undo some of the harm associated with previous inappropriate use of stop and search will be undermined by the proposals under Clauses 17 and 18.
It seems that a great deal of power already resides with the Home Office to revoke the licences of illegal immigrants, without resort to a measure that would exacerbate the situation and damage the public’s relationship with the police, who, as the NBPA rightly says, would become the “whipping boy” for immigration officers.
If the Government wish to tighten these measures further, perhaps they would be better to consider tightening the issuance and monitoring of licences by the DVLA, and extending the same responsibilities and duties to that body as they are seeking to deliver to private landlords.
My Lords, I hope the Minister will listen, as I know he usually would, to the contributions that have been made on all sides of your Lordships’ House, but especially to those of the noble Lord, Lord Paddick, and the noble Baroness, Lady Lawrence.
As those contributions were being made, my mind went back to those riots in 1981, of course not just in Brixton but in Toxteth in Liverpool. I had been a young Member of Parliament for about 18 months. In the weeks before the riots occurred, I had raised on the Floor of the House in another place the dangerous relationship that had been deteriorating between police and public in that part of Liverpool. Sir Kenneth Oxford was then the chief constable on Merseyside and he took a very provocative view towards the black community in that neighbourhood. I was not entirely surprised when, on a hot summer’s night in 1981, I was asked to come urgently to Upper Parliament Street, where two and a half days of rioting began, in which 1,000 policemen ended up in the local hospital. I dread to think what would have happened if guns had been so readily and easily available on the streets then as they often are now.
As a result of those riots, I visited the home of the young man who had been involved at the very outset, Leroy Cooper, who was a constituent of mine. I sat with him and his father as they described to me how the trigger had taken place on the street in Lodge Lane in Liverpool as an overzealous policeman confronted this young man. It was a traffic incident, which plays exactly into the amendments before your Lordships’ House today—not a car but a motorcycle—and, as a consequence of the anger that had been building up for some time, it erupted and riots occurred which had a devastating effect.
The overuse of stop and search powers at that time, which had been part of the incident, was set aside in the months and years that followed and a much different form of policing emerged. Bernard Hogan-Howe, who became the assistant chief constable on Merseyside, played a leading part in the introduction of strong community policing, having learned the lessons of what had gone before. It would be a tragedy if we were now to turn the clock back. I hope therefore that the Minister will think very carefully about and look at the terms of this very good amendment, Amendment 160, which says that,
“the authorised officer has reasonable grounds to believe the power should be exercised urgently”.
It does not take away the powers. As the right reverend Prelate said, those powers already exist in plenty of statute if there is a need to intervene. But something that could be used and seen as a deliberate attack on one part of our community will do nothing to enhance community relations. It will not foster good policing in our cities and could actually have a deleterious effect.
For all those reasons, I hope that the Minister will think very carefully about the arguments that have been deployed today. If he cannot agree today, I hope he will at least hold meetings with Members of your Lordships’ House between now and Report to see whether this could be modified.
My noble friend Lady Lawrence of Clarendon has eloquently set out the reasons for her concerns about Clauses 17 and 18, which create an offence of driving when unlawfully in the UK and give powers to carry out searches relating to driving offences. The Bill provides a power for an authorised officer—police or immigration officers or third parties designated by the Secretary of State—to search premises, including a vehicle or residence, where the officer has reasonable grounds for believing that an individual is in possession of a driving licence, is not lawfully resident and the licence is on the premises.
As has already been said, the National Black Police Association has expressed concern at the potential of these provisions to undermine vital work promoting good relations between police and the communities they serve, saying that they could result in a return to the days of sus laws and the police being seen as part of the Immigration Service. Evidence indicates that black and minority ethnic drivers are around twice as likely to be stopped as white drivers.
The situation will not have been made any easier by evidence given by the police to the Commons Public Bill Committee when, as my noble friend Lady Lawrence of Clarendon said, a Metropolitan Police chief superintendent explained that they already had a power to stop any vehicle to ascertain ownership and driver details and, having done that, they would then inquire into whether the driver had the authority to drive that vehicle. He went on to say that, to fall within the new provisions in the Bill that we are debating, the police would then most likely need to do a further check with the immigration authorities, which at that stage would give them reasonable grounds—but not necessarily proof—based on a search of the immigration database to believe that the person driving was an illegal immigrant. In other words, these clauses relating to driving could effectively result in adding a routine immigration check into a traffic-stop regime which many in black and minority ethnic groups already regard as operating in a discriminatory fashion.
The points that have been made by my noble friend Lady Lawrence, the noble Lord, Lord Paddick, the right reverend Prelate the Bishop of Southwark and others about the impact of these two clauses on fostering distrust and disharmony between the police and the public require a full and considered response from the Government, including the Government’s assessment of the impact on community cohesion if they disagree with what has been said on these proposed measures. This is yet another potential example in the Bill of measures that are intended by the Government to encourage illegal migrants to depart, by making it harder for them to live and work here, having highly likely unintended adverse consequences—this time for the role of the police, community relations and racial harmony.
My Lords, I thank the noble Lord, Lord Paddick, for moving his amendment and giving us the opportunity to discuss these important matters. Perhaps I may make some general remarks on the clauses, setting out the Government’s position, and then seek to respond to the very legitimate questions raised by noble Lords.
Clause 17 provides the power for an authorised officer, such as an immigration or police officer, to search people and premises and seize a UK driving licence held by a person not lawfully resident in the UK. It is envisaged that the power will be used primarily by immigration officers as an adjunct to their normal enforcement activities where immigration offenders are apprehended in the community. This represents the best opportunity to remove from circulation UK driving licences which are being used by illegal migrants. This power can be exercised only where there are reasonable grounds to conduct a search: it cannot be used to randomly target members of the public. The power contained in the clause will be used by the police only as a part of targeted, intelligence-led policing.
The Government are clear that this clause will not undermine their work in reforming police stop-and-search powers, nor will it result in random stop and searches being conducted by immigration officials. Home Office immigration enforcement officers would use the power where they, for example, visit a property or place of employment in response to intelligence received. With the exception of a constable, authorised officers must generally also obtain the consent of a senior officer before conducting a search of premises, unless it is not reasonably practicable to do so. A seized licence must be returned to the holder if a decision is taken not to revoke it, or where the holder successfully appeals against a revocation.
Amendment 160 would therefore add an extra constraint on when the power to enter premises to search for a driving licence may be used without the authorisation of a senior officer. This is unnecessary. Clause 17 provides that before searching premises an authorised officer must obtain the authorisation of a senior officer, unless it is not reasonably practicable to do so. Amendments 161 and 162 are also unnecessary. The arrangements introduced by the Immigration Act 2014 for the revocation of UK driving licences held by illegal immigrants are well established and operating effectively. They are not subject to significant delays, which would warrant introducing hard and fast time limits for the retention of seized licences pending revocation action.
Amendment 162 would limit the ability to retain licences if they are revoked after being seized. This conflicts with one of the main aims of the clause: namely, to remove revoked licences from circulation. It is already a criminal offence under the Road Traffic Act 1988 to retain a revoked licence but, despite this, only a very small proportion are returned.
Clause 18 creates a new offence of driving a vehicle on a road or other public place when the driver of the vehicle is not lawfully in the UK and provisions regarding the detention and forfeiture of vehicles used in the offence. A person guilty of this offence will be liable on summary conviction to imprisonment of up to six months or a fine. Where a person is arrested for this offence, the vehicle believed to be used in the commission of the offence may be detained. This clause also provides the Secretary of State with the power to make provision, by regulations, about the circumstances in which a vehicle may be released from detention. On conviction for the new offence, the court may also order forfeiture of the vehicle used. A person with an interest in the vehicle may however apply to the court to make representations as to why the vehicle should not be forfeited. No forfeiture order can be made unless interested parties have been given the opportunity to make their representations.
Now I come to the main concerns in the debate, which surround how the police are going to use the powers being provided. In response to the noble Lord, Lord Paddick, and the noble Baroness, Lady Lawrence, the Government are clear that this provision will not undermine reform of police stop-and-search powers and will not undermine community cohesion. The police will first have to have cause to stop a vehicle. At this point, I turn to the point raised by the right reverend Prelate the Bishop of Southwark, who asked for examples of those circumstances. Reasonable suspicion may occur where a vehicle has been stopped for a suspected driving offence, the police have checked the circumstances of the driver, as appropriate, and those checks have revealed a match against a Home Office record. The search is therefore intelligence-led, not a random search of a member of the public. I draw noble Lords’ attention to the policy equality statement which accompanies this Bill and sets out very clearly in section 3 what the power to search for UK driving licences means in practice. The cause cannot be based on a person’s race or ethnicity. The stop must be for an objective reason. Once a vehicle has been stopped, the police check the circumstances of the driver. The provision will not therefore lead to stop and searches of vehicles in order to check the immigration status of the driver.
A number of noble Lords have recognised the significant steps forward which the Home Secretary has taken in seeking to improve the way stop and search is conducted. That is to address the type of scenario that the noble Lord, Lord Alton, outlined, which occurred 30 years ago in Liverpool. This is what she said at the National Black Police Association’s conference in October 2015:
“We made sure officers are clear what ‘reasonable grounds’ of suspicion are, so that its use is both legal and reasonable—because Her Majesty’s Inspectorate of Constabulary said that over a quarter of stop and searches were unlawful. We brought in much greater transparency and required police forces to record the outcome of each and every stop and search—because only one in ten stop and searches led to an arrest. And we gave communities the ability to hold their police force to account through a ‘community trigger’, which means that the police must explain how stop and search powers are being used should concerns be raised. And I am delighted that the 43 police forces in England and Wales, plus British Transport Police, have all voluntarily signed up to our Best Use of Stop and Search Scheme”.
Moreover, the use of stop and search fell sharply in 2014-15. It was down by 40%, compared with 2013-14, to 540,870. This continues the recent downward trend. This is the largest year-on-year fall and sees the lowest number of stop and searches in a year since the current series began in 2001-02. The number of Section 60 stops, for which reasonable suspicion is not required, fell by 73%, compared to 2013-14, to 1,082 stops. Moreover, the Government announced a number of measures in 2014. Among them were: commissioning the College of Policing to review national stop-and-search training; including stop and search in the new HMIC PEEL inspections; commissioning HMIC to conduct a thematic inspection into other stop-and-search powers; introducing a strictly voluntary Best Use of Stop and Search Scheme to create more transparent and accountable use of stop and search; revising the PACE code of practice to make clear what constitutes reasonable grounds for suspicion—the legal basis for stop and search; mapping stop and search on Police.uk; exploring quick and efficient stop and search; and recording on the emergency services network.
The noble Lord, Lord Paddick, asked what “subsequently revoked” means in Clause 17. Clause 17 provides the power to seize unrevoked licences. Subsequently revoked means revoked after seizure.
A number of noble Lords referred to the comments by Chief Superintendent David Snelling in another place. In his evidence to the Public Bill Committee last year, he indicated that the police would use this power in the context of intelligence-led policing. If police have cause to stop a vehicle, they may then check the circumstances of the driver. If the driver is found to be an illegal migrant, their vehicle may be detained under these powers. In applying these new powers, the police will first have to have cause to stop a vehicle; for example, for a suspected motoring offence. They may then check the circumstances of the driver. There are, therefore, a series of objective steps that will be followed. This clause will not result in the police randomly stopping cars in order to check the immigration status of the driver. In the light of these points, I hope the noble Lord will agree to withdraw this amendment at this stage.
Will the noble Lord tell your Lordships what will be done then to monitor whether we return to the stop-and-search regime that he described, where only one in 10 stops had any real legitimacy? Will there be accountability? Will statistics be published every year so we know how often the power has been used and how often it has been successful?
Under one of the proposals introduced for stop-and-search powers, we are now collecting those data. The ability to make the statements that I have, about how stop and search has actually been reduced, is a very good thing. This is such a sensitive area but also one where I believe a significant amount of good work has been done in policing. We would not want anything in this to in any way undermine that wider effort to improve community cohesion and trust between the police and the communities which they serve. I would be very happy to organise a meeting with interested Peers between Committee and Report to explore this area further, to try to offer further reassurances and to hear more about any specific concerns.
I do not think the noble Lord has really answered the concerns raised by my noble friend Lady Lawrence or by the noble Lord, Lord Paddick, who was an experienced police officer in the Brixton area—he talked about the problems of the Brixton riots and so on. Whatever the intentions of the provisions, there are real concerns about what will happen in practice. Could he say a little more about that?
The noble Lord is right to point to the immense experience of many noble Lords who have spoken, such as that of the noble Lord, Lord Paddick, in policing and of the noble Baroness, Lady Lawrence, in representing victims of crime over many years. That is why I am suggesting, in the light of the concerns that have been expressed, that we ought to look at this. Sometimes there is an overfocus on this particular element, without recognising the wider context of the Bill. This is not being targeted simply through stop-and-search powers but is consistent with the wider aim to reduce the ability of people who are here illegally to live a normal life while in the UK—such as by having bank accounts, being able to rent properties, being able to work and gain employment, or being able to gain a driving licence. In the wider context, it fits, but there are some specific concerns here. It is a very sensitive area. Therefore, I am very happy to meet noble Lords to discuss it further.
My Lords, I thank all noble Lords who have spoken, particularly the noble Baroness, Lady Lawrence of Clarendon. Our Amendments 160 to 162 are technical in nature, and so was the Minister’s response, so I will read Hansard with interest. The major issue is with Clause 17, where the Minister has not answered our concerns. He talked about justification for this being where the police stop somebody and then a match is found against a Home Office record. That implies that the police would have to carry out an immigration check on the individual to establish whether an immigration offence had been committed. They are being pushed into proactively enforcing immigration law in a way that they have not previously.
Again, I defer to the noble Lord’s great experience, but I understand that that is part of normal practice when they establish the identity of the individual whom they have stopped for a suspected offence: that they try to establish that identity from the databases available to them.
My Lords, my understanding is that a routine check of the Home Office immigration database is not a normal part of a stop check.
The Minister says that the stop must not be based on race or ethnicity, but Her Majesty’s Inspectorate of Constabulary research, to which I and other noble Lords referred, shows that drivers are being targeted on that basis. The Minister has not given the Committee any reassurance that things will be different under these powers. The Minister said that the Home Secretary, in addressing the National Black Police Association, admitted that a quarter of stop and searches by police are unlawful. The clauses extend the powers of the police to carry out stop and searches.
In answer to the noble Lord, Lord Alton of Liverpool, the Minister talked about monitoring. The fact is that police stops of vehicles under the Road Traffic Acts are not routinely recorded. This is something that we need to look into in the meeting with the Minister and other interested noble Lords, which I very much look forward to.
The Minister has heard from both sides here: from someone who has been a victim of racism and from someone who has previous experience of enforcing immigration law as a police officer, and the detrimental effect that that has had on police-community relations. I was in the Brixton riots, I was behind a plastic shield, and I felt the anger of the black community in those days towards the police. I do not want us to go back to anything like that situation—particularly, as the noble Lord, Lord Alton, said, bearing in mind the greater availability of firearms these days. However, I am very grateful to the Minister for agreeing to meet us to discuss those things, and I beg leave to withdraw the amendment.
Amendment 160 withdrawn.
Amendments 161 and 162 not moved.
Clause 17 agreed.
Clause 18: Offence of driving when unlawfully in the United Kingdom
163: Clause 18, page 20, line 31, at end insert—
“( ) A person does not commit an offence under subsection (1) if, at the time of driving a motor vehicle, he or she had a reasonable belief that he or she had a legal right to remain in the United Kingdom and acted in good faith.”
As was said in the previous discussion, the Bill creates a new criminal offence where a person,
“drives a motor vehicle on a road or other public place at a time when the person is not lawfully resident in the United Kingdom”.
Of course, this new offence is part of the Government’s objective, as set out so clearly in the Explanatory Notes, of,
“making it harder to live and work illegally in the UK”,
to encourage those who do not have the appropriate immigration status to “depart voluntarily” and, where they do not do so, to use other measures in the Bill to “support enforced removals”. As with the new offence of illegal working for employees, however, there appears to be no defence for this new offence in relation to driving.
The purpose of our amendment is to seek to provide such a defence for those prosecuted for driving while illegally in the UK if they can show that they had reason to believe that they had the legal right to be here. For example, there is the kind of person who has been sponsored but, unbeknown to them, there is something wrong with the sponsorship. As a result, they may fall foul of this new offence because they do not have the status they should, although they had reasonable belief of their right to be here and acted completely in good faith. Having a criminal record has serious implications for a person under immigration control, as such records can never be spent for immigration and nationality purposes, must always be declared and can form the basis for refusing a person leave, settlement or citizenship.
During the debate on this issue in the Commons, the Solicitor-General confirmed that effectively there was no defence for this new criminal offence. He said in response to a question on this point that a person who was prosecuted for this new offence would have the opportunity to,
“put in mitigation about their belief as to whether they were legally present in the UK, and that would affect any sentence that might be passed”.
Of course, that is about mitigation of sentence, not a defence to the charge for which a person can be sent to prison for 12 months. The second point made by the Solicitor-General was that,
“the Crown Prosecution Service will have guidance to ensure that migrants are not inappropriately prosecuted for this”,
new criminal offence. He went on:
“Should a migrant be able to genuinely show that they believed themselves to be legally present, the public interest test … would apply”.
In other words, as with the offence of illegal working for which there is no defence for those employed, it would be up to the Director of Public Prosecutions rather than Parliament to decide whether there is a defence against an offence for which there is no such provision made in the Bill.
In the Commons, the Government accepted and recognised the reasons behind this amendment but maintained that it was “very broad”, “very subjective” and would create scenarios in which,
“a defendant might claim they had reason to believe they were in the UK legally, simply because they had misunderstood the date on which their leave expired”.
Yet that is precisely the kind of question that the DPP and Crown Prosecution Service will presumably have to resolve in carrying out the Solicitor-General’s view that if a migrant can genuinely show that they believe themselves to be legally present, the public interest test would apply. Why then can the courts not be relied on to make appropriate decisions on reasonable belief, as called for in this amendment, and thus put a defence against this new offence in the Bill, debated and agreed by Parliament?
When the question was raised in the Commons debate about why this new offence was needed at all, since it appeared that the police were not seeking this new power and had not found any gap in their ability to deal with drivers who do not have regular status, the Solicitor-General, replying for the Government, said that there was,
“a loophole involving people who are unlawfully here … who are driving with foreign-issued licences”.—[Official Report, Commons, Immigration Bill Committee, 3/11/15; cols. 307-08.]
For my benefit and to get it on the record, could the Minister spell out in detail what the existing problem is in relation to people who are here unlawfully and who drive with foreign-issued licences, as opposed to those here unlawfully but driving with British driving licences or no driving licence at all, and which can be resolved only with the creation of this new offence? It would also be helpful if the Minister in his response—I hope it will be favourable but am not too sure of that—could place on record the Government’s assessment of the extent to which this new criminal offence of driving a motor vehicle while not lawfully resident in the United Kingdom will reduce the number of people not lawfully resident in the United Kingdom, and the basis on which that conclusion has been reached. I beg to move.
My Lords, I support the noble Lords, Lord Rosser and Lord Kennedy of Southwark, in their Amendment 163. It does not seem an absolute offence. Therefore, Amendment 163 seems reasonable.
We have Amendments 164, 169, 171, 172, and 173 in this group in my name and that of my noble friend Lady Hamwee. Amendment 164 would add to new Section 24D by placing a time limit on the time taken to make a decision whether to prosecute, when someone has had their vehicle detained, having been arrested for driving when unlawfully in the United Kingdom, of one month from the date of arrest. It could well be that the person arrested is a professional driver, who relies on the vehicle for their livelihood and, if that person turns out to be innocent of the offence, it could have serious implications for him if the vehicle is not returned to him promptly.
Amendment 169 is designed to restrict the ability to detain the vehicle if it belongs to a third party. Could the Minister clarify whether it is intended to detain vehicles innocently lent to others who are subsequently found to be in the UK illegally?
Amendments 171, 172 and 173 are to query the issue of all premises warrants, in new Section 24E(6)(b) and 24E(7), to search any premises owned or controlled by the person arrested for driving illegally to detain the car he was driving—particularly, as stated in new Section 24E(10), when such an all premises warrant cannot be issued in Scotland. Can the Minister explain why such a wide-ranging warrant is necessary in England and Wales but not in Scotland?
The Government also have Amendments 174 and 175 in this group, which widens the power even further, not just to all premises but not restricting such a power to a constable only, which is what was in the Bill originally. Surely, the power is broad enough as it is.
My Lords, I have a couple of amendments in the group, so I shall speak to those first and then turn to the amendments in the names of the noble Lords, Lord Rosser and Lord Paddick.
The government amendments in this group relate to the Secretary of State’s powers to make regulations governing the detention of vehicles used in committing the new offence of driving when unlawfully in the UK and to the criminal justice procedure for the offence in Scotland. Amendments 165 to 168 remove unnecessary references to the procedure applicable to solemn criminal procedure in Scotland, as opposed to summary procedure, since the offence is a summary-only offence in Scotland. Clause 18 provides a regulation-making power covering the destination of any proceeds from a vehicle being forfeited and disposed of. Amendment 170 extends this power to enable regulations to specify the destination of the proceeds of charges made for detaining a vehicle. This is necessary to ensure that it is possible for the charges to cover the cost of detaining the vehicle to be paid either to the police or to a private contractor who is detaining a vehicle on behalf of the police. Clause 18 provides that all premises and multi-entry warrants can be applied for in Scotland by an immigration officer. Amendments 174 and 175 remove this possibility to ensure compliance with the Scottish criminal justice system, which does not currently include provision for either all premises or multiple entry warrants. I invite noble Lords’ support for these amendments at the point when they are moved.
I turn to the issues raised in the other amendments. Amendment 163 would have the effect of introducing a presumption that ignorance of immigration status provides a defence against conviction. The overwhelming majority of illegal immigrants will be fully cognisant of their status, having entered the country unlawfully or deliberately overstayed their visa. The requirements imposed by the amendment are open to vague and inconsistent interpretation and may provide a perverse incentive for some migrants to avoid communication with the Home Office and/or their legal representatives in order to establish the necessary doubt as to whether they could “reasonably” be expected to have known they were required to leave the UK.
Not all those who have entered the UK illegally or attempt to remain illegally in the UK have a history of communication with the Home Office. These are arguably the types of illegal migrant that this legislation is intended to deter. It would be a bizarre outcome should this group be better protected as a result of this amendment than those who have engaged with the authorities.
Where a migrant honestly believes that they have lawful status—for example, because they have been misled by a rogue legal adviser—this will be taken into account in considering whether prosecution would be appropriate in the public interest, and clear guidance to that end will be provided. Should a migrant be able to genuinely evidence that they believed themselves to be legally present, it is highly unlikely that it would be in the public interest to prosecute.
In light of these points, I hope that the noble Lords, Lord Rosser and Lord Kennedy of Southwark, will feel able to withdraw their amendment. Given the concerns about the strict liability nature of this offence, I may reflect further on this matter before Report.
The amendments proposed by the noble Lord, Lord Paddick, which are also in the name of the noble Baroness, Lady Hamwee, represent a significant potential weakening of the powers necessary to enforce the law and realise the intended benefits of this part of the Bill. Amendment 164 would require that a decision whether to charge a person with this offence or institute criminal proceedings be taken within a month of the arrest date. It is right that decisions on whether to prosecute a person for a criminal offence should be taken promptly, but the proposed amendment would introduce an arbitrary time limit and create an additional, and in our view unnecessary, administrative burden on the relevant agencies.
Amendment 169 would have the effect of disallowing the detention of the vehicle if it was under the person’s control. This would defeat the principal purpose of the clause, which is to prevent illegal immigrants driving on our roads. I understand that noble Lords may have intended to probe how the legislation will operate where an illegal migrant is apprehended driving a vehicle belonging to someone else, and that vehicle is detained by the police. That is not an unusual scenario in the context of motoring offences, and the Bill provides appropriate safeguards to deal with just that situation. I draw noble Lords’ attention to new Section 24D(8), which provides a power for the Secretary of State to make regulations about the release of a vehicle that has been detained. This power covers the circumstances in which a vehicle should be released to a third party who has an interest in it, such as the vehicle’s owner. Where a person has been convicted of the new offence created by Clause 18, the courts will have the power to order the forfeiture of the vehicle used in the offence. However, a third party with an interest in the vehicle may apply to the court to have the vehicle returned to them.
Amendments 171 to 173 would significantly reduce the potential success of a search for a motor vehicle by removing the ability to apply for an all-premises warrant to search multiple premises. The power contained in the clause to apply for an all-premises warrant, which allows any premises occupied or controlled by a specified person to be searched, is consistent with the Police and Criminal Evidence Act 1984, which applies in England and Wales, and the equivalent order in Northern Ireland.
The provisions within the clause and within wider immigration legislation specify that the search power may be exercised only to the extent that it is reasonably required. In order to issue an all-premises warrant, the justice of the peace needs to be presented with reasonable grounds that it is necessary. Limiting the scope of searches to premises specified at the outset of an inquiry negates any possibility of using evidence gained during the initial inquiry that provides reasonable grounds to believe that a further search of additional premises would be successful. In the context of this clause, for instance, this might have the perverse effect of preventing officers who have searched one vehicle lock-up from also searching the one next door, despite information suggesting that the vehicle is kept there.
The noble Lord, Lord Rosser, asked why the offence is needed. This immigration provision is designed to make it harder for illegal migrants to remain in the UK. The provision operates in parallel with other measures contained within the Immigration Bill. Although illegal migrants may have their driving licences revoked under provisions contained in the Immigration Act 2014, we cannot revoke foreign-issued licences. This means that, currently, illegal migrants may drive legally if they hold a valid licence issued overseas. Clause 18 closes this loophole. I should also say that the Director of Public Prosecutions will produce guidance with input from my Home Office officials as to how the CPS will operate this with regard to this offence.
Given that response, I hope that the noble Lord will feel able to withdraw his amendment; I will move mine when the time comes.
My Lords, I am emulating the noble Lord, Lord Kennedy, in retreating to the Back Benches to intervene at this late stage. I was glad to hear the Minister say that the Government would consider further the issues raised by the noble Lord, Lord Rosser, in Amendment 163. The Minister did not quite address—again, I emulate the noble Lord, Lord Kennedy—the point made by the noble Lord about the desirability or otherwise of dealing with the matter either through the CPS taking a view as to whether to prosecute or through sentencing. I hope that the Government will consider whether it might be better not to have a strict liability offence rather than leaving it to the CPS to consider whether it is in the public interest to prosecute in a particular case.
My Lords, the strict liability nature of this offence is consistent with some similar driving offences. It is an offence, for example, to drive whilst disqualified or drive otherwise than in accordance with a licence, regardless of whether or not you realised that you were committing an offence. Therefore, we believe that that is consistent, but obviously, I will look carefully at what the noble Baroness has said and if need be I will respond in writing to her.
I thank all noble Lords who have taken part in this relatively brief debate, and I thank the Minister for his response and for his willingness to look again at this issue of absolute liability with regard to this new offence prior to Report.
My feeling at the moment is that the Government want a defence to be available, but want it to be exercised through the DPP and the Crown Prosecution Service through not prosecuting cases rather than putting it in the Bill. Of course, if the DPP and the Crown Prosecution Service came to the conclusion that they did not think that there was a case for somebody to say that they believed that they had the appropriate status to be in this country and they were prosecuted, when it got to court the court would not have a chance to look at the grounds that had been put forward, because it would be an absolute offence and the individual would presumably be found guilty.
I hope that the noble Lord will look hard at this issue as to whether it is better for the courts to make the decisions on whether an individual has made a case that they genuinely believed they had the appropriate immigration status with regard to this offence. However, I am grateful for what the Minister has said and I beg leave to withdraw the amendment.
Amendment 163 withdrawn.
Amendment 164 not moved.
Amendments 165 to 168
165: Clause 18, page 21, line 27, leave out “65 or”
166: Clause 18, page 21, line 28, leave out “discharged or”
167: Clause 18, page 21, line 34, leave out “on petition”
168: Clause 18, page 21, line 34, leave out “an indictment or” and insert “a”
Amendments 165 to 168 agreed.
Amendment 169 not moved.
170: Clause 18, page 22, line 8, at end insert—
“( ) as to the destination of payments made in compliance with such a condition;”
Amendment 170 agreed.
Amendments 171 to 173 not moved.
Amendments 174 and 175
174: Clause 18, page 23, line 24, leave out “authorising entry on premises by a constable”
175: Clause 18, page 23, line 26, leave out “by a constable”
Amendments 174 and 175 agreed.
Clause 18, as amended, agreed.
Clause 19 agreed.
176: After Clause 19, insert the following new Clause—
“Ability to pay the immigration health surcharge incrementally
In section 38 of the Immigration Act 2014 (immigration health charge), in subsection (3)(c), after “State” insert “, including allowing the Surcharge to be paid in multiple payments”.”
My Lords, Amendments 176 and 177 seek to address two key issues affecting migrants not covered in the Bill. Amendment 176 deals with the immigration health surcharge, which came into effect last April. This requires migrants from non-European economic areas to pay an upfront health charge of £200 a year for each member of the family, including children, when they apply to have a visa renewed or submit an application for leave to remain in the UK. The charge is designed basically to cover any NHS care that the migrant or their family might need while their application is being processed, but it does not take account of how long each migrant has lived in the UK, their financial situation or whether they have dependent children. The people involved are largely industrious non-EEA citizens who have lived and worked in the UK for many years, but they face unsurmountable bills when they come to renew their visa. This causes major problems because almost half of them are in low-paid employment.
Irrespective of their financial situation, if they apply for leave to remain in the UK—which, if granted, is normally for a period of two and a half years—they must pay the health surcharge of £200 per person, per year, plus an administration charge of £649 per person. So a mother with three children would need to raise £2,000 to pay the health charge and a further £2,500 to pay the administration charge. That is a total of more than £4,500. Families unable to pay cannot renew their visa even in circumstances where an extension would be likely to be granted. So they are faced with a stark choice: they either find the money or they face destitution or deportation.
A simple, practical solution to this problem would be to allow these migrants to pay the health charge in instalments, rather than upfront. This would make a very significant difference. I urge the Government to consider this, not least because it would cost practically nothing to do it.
Amendment 177 seeks to extend the categories of migrant exempted from the health charge to cover people who have fled domestic violence, and dependent children. I recently visited the Cardinal Hume Centre in Westminster, which does outstanding work in this area. I met one of the many people there helping, whom I will refer to as Ruth. Ruth was originally from Kenya and came to the UK with her husband on a two-year spouse visa. But after they had had their two children, her husband became both physically and sexually violent. Like most people in this situation, Ruth was terrified to do anything about it. But she eventually plucked up the courage to flee, and is now living in a domestic violence refuge. Her husband, of course, kept control of all the papers, so she had no idea that her documents had expired. So here we have a woman who has been abused; she has had to flee her home; she has two children to care for; she has got no job; and she has got no money. How on earth can she possibly raise the money in order to pay the health charge and application fee that her family need in order to renew her visa?
Women in these situations are extremely susceptible to exploitation. Their reliance on the charity of others can leave them vulnerable, with nowhere to turn when things go wrong. Enforcing this charge just strengthens the hand of the abusers, because people—women in particular—feel unable to escape their partner or their situation because of fears of deportation or destitution. At the moment, asylum seekers, victims of human trafficking and those under humanitarian protection are already, rightly, exempted from the health surcharge. The amendment would extend that exemption to abused parents and their children.
In theory, a fee waiver system is available for migrants unable to pay the visa application fee. However, in practice, it is simply not working. Many migrants are being denied this waiver despite significant evidence to show that they meet all the criteria; I have many examples that I would be happy to share with the Minister. So I hope that the Government will consider extending these exemptions to victims of domestic violence and their dependents. I beg to move.
My Lords, I am a signatory to Amendments 176 and 177 so ably moved by the noble Baroness, Lady Doocey. Amendment 176 provides for the ability to pay the immigration health surcharge incrementally, as the noble Baroness explained, and Amendment 177 deals with exemptions from the immigration health surcharge.
As the noble Baroness said, the fee waiver system, which is supposed to protect migrants unable to afford visa application fees, is simply not working in practice. All the evidence suggests that the fee waiver system is currently failing the very families who need it most. By way of illustration I will refer to another case from the Cardinal Hume Centre which is within Division Bell distance of the Palace of Westminster, where we are meeting today. Among its other clients, the centre is working with a lone parent who has four children, all aged under 18. In that context, I would be grateful if the Minister, when he comes to reply, will consider the implications therefore of Article 24 of the United Nations Convention on the Rights of the Child, which states that parties who are signatories to that convention, as we are,
“shall strive to ensure that no child is deprived of his or her rights of access to such health care services”.
Also, perhaps he will comment on the applicability of this to all children, regardless of their immigration status, which is further emphasised in the Committee on the Rights of the Child’s General Comment No. 6, paragraph 12, which states that,
“the enjoyment of rights stipulated in the Convention are not limited to children who are citizens of a State party and must … be available to all children—including asylum-seeking, refugee and migrant children—irrespective of their nationality, immigration status or statelessness”.
In the case of this lone parent with her four children, the fees to extend her family’s leave to remain, including the health surcharge, will be in excess of £6,000. Due to the threat of destitution, that family is currently supported by a London local authority, but they are still struggling to meet essential living costs, yet the Home Office has refused the fee waiver application, despite significant evidence being provided by the centre and the client. Perhaps the Minister, like the noble Baroness, Lady Doocey, would like to visit the centre to see that family for himself and talk to them so that the illustrations that the noble Baroness and I have given can be taken into account as he comes to consider these arguments between now and Report.
Sadly, these are just illustrative examples of many cases that could be raised today. If accepted, the admirable amendments tabled by the noble Baroness, Lady Doocey, would simplify the existing rules and give proper protection to all survivors of domestic violence, not just those who have been granted the destitute domestic violence concession.
The current protections and exemptions are far too narrow in definition. One unacceptable consequence is that professionals in the field report that many women remain deterred from leaving abusive relationships. As the Office for National Statistics points out in its Focus On: Violent Crime and Sexual Offences 2011-12 for England and Wales, published on 7 February 2013, women are “more likely” to be the victims of domestic violence than men and can be left in a precarious and dangerous situation as a consequence of abuse. It is therefore imperative to simplify the rules and exemptions in this regard as much as possible to ensure that all victims of domestic abuse, in particular women, are properly supported and protected.
The burden of sourcing the necessary money to pay the health surcharge causes many families and individuals great distress. Granting applicants the option of paying the fee incrementally, as the noble Baroness described, would be a significant step in easing the strain and worry on those affected by the charge. Incremental payments would be a particular benefit to domestic workers, who tend to be on low pay, typically no more than the minimum wage, and who have to save not only for the application fees but also for the health surcharge and other essential living costs. This leaves them in a very precarious and vulnerable financial position and inevitably can make them susceptible to exploitation as they may have little option but to borrow money from people with few scruples to pay the necessary fees upfront.
We should also consider the impact that the burden of sourcing this money has on the cohesion and durability of families. As research from the Tavistock Institute shows, financial stress and being in poverty add to the risk of family breakdown. The introduction of incremental payments would make the charge more manageable as applicants would not face the intense pressure of sourcing large sums upfront. Overall, these amendments represent a sensible, modest solution and a way of mitigating many of the unreasonable challenges that migrants encounter when seeking to extend their leave to remain. I am therefore very happy to support them.
My Lords, I was pleased to add my name to these amendments. They strike me as being reasonable and modest, and a very strong case has already been made by the noble Baroness, Lady Doocey, and the noble Lord, Lord Alton. ILPA also makes the case for allowing payment to be made by instalments:
“The sum at stake, the £200, £150 for students may appear modest. It is not. Factor in that it is a payment per year, that there will be a levy for each family member and then consider average earnings in different countries and exchange rates with the UK and it acts as a bar to entry … Any health levy payable prior to arrival risks presenting a barrier for those nationals of countries where earnings are low and currencies weak relative to the UK. Similarly if a person must pay the levy for their entire period of leave up front: to do so exacerbates the effect of existing disparities”.
The Anti Trafficking and Labour Exploitation Unit has provided a case study which again illustrates the difficulties that upfront payments can create for low-paid workers:
“F is a domestic worker from South Asia. She has leave to remain granted under the rules for domestic workers in place before April 2012. In 2015 she sought to extend her leave to remain. She faced an application fee of £649 and a health surcharge of £200 so a total of £849 to pay up front. This was more than her monthly wage of £800. From our experience, someone working in a minimum wage job is virtually certain to have their application for fee remission refused, even when human rights is the main focus of the application, which is not the case for domestic worker visa extensions who could not therefore hope to be given a fee waiver. F had to borrow the money from her employer which on this occasion was possible. Not all employers would be willing to assist in this way”—
I suspect that rather few employers would do so. It continues:
“For a domestic worker to find that much money up front inevitably necessitates borrowing, which can put a vulnerable person further at risk. To save that much money each month can be a huge task for someone on a minimum wage income but is more manageable than an upfront payment. The fee for such applications will go up to £811 in 2016 in addition to the health surcharge”.
I suspect that all of us in this House live pretty comfortably, so for us to make a payment like that upfront is something that we probably do not even think about. It might just be a slight nuisance. We must put ourselves in the shoes of someone for whom making such an upfront payment is a huge burden, and something that seems impossible to comprehend. The difference it would make to them to be able to pay in instalments is enormous. It is important that we try to think what it means to the people for whom we legislate.
The exemptions also seem to me very fair. I was going to make reference to the UNCRC, but the noble Lord, Lord Alton, has already made it. There are questions about whether charging children is compatible with those provisions. To exclude victims of domestic abuse would simply build on the existing exemptions under the destitution domestic violence concession, without introducing a new principle. On the question of destitution, the briefing that I had from the Caritas Social Action Network gave the example of someone who was not considered destitute for this purpose because they had £60 in their bank account, but they were homeless. Perhaps I should know the answer, but will the Minister tell us the criteria for destitution when deciding on such cases? I hope that he will look kindly on these very reasonable, very modest and very just amendments.
My Lords, I support these two amendments—in particular, where they deal with exemptions for children who cannot be expected to have large earnings and for victims of domestic violence. May I suggest to the Minister that he consults on this his noble friend Lady Anelay of St Johns? After all, she has worldwide responsibilities for protecting women in particular but also, no doubt, children against violence, whether domestic or arising from wars and civil conflicts. It would be paradoxical for us to go to considerable lengths to get better worldwide protection while diminishing it or removing it from people here.
My Lords, I support my noble friend in these two amendments. They have been described as modest; I think they are remarkably modest in the light of the descriptions that we have heard. I would say to the noble Baroness, Lady Lister, that I would think twice about £640.
We are told that immigration fees are charged on the basis largely of cost recovery. Does this administration charge reflect the cost of administration? I find it quite interesting. It makes me wonder not only about the efficiency of it but that so much more is being paid for the administration than for the health service. When the proposals for a health surcharge were first mooted, there was a lot of debate about the dangers of either driving people underground or deterring people who have a right to a service from seeking it because they do not quite understand how it all works and fear that they might be prejudicing their own immigration status by seeking health advice and health treatment. My noble friend has raised immensely important points.
My Lords, the noble Baroness just said what I would have said, so I add only one plea to the Minister: would he please explain the point of the regulations? We have discussed them before on previous immigration Bills and they keep coming back because they are so obviously unfair. We have to know whether they are intended as a deterrent, because if they are they will not have the slightest effect.
I rise very briefly just to say that I await the Government’s response with interest. I am not sure what the argument will be against being able to pay the immigration health surcharge incrementally. On exemptions from the surcharge, if the Government will not go down the road of the amendment, I await with interest to hear what their argument is for not having these exemptions.
My Lords, I shall make some general points in response to the amendment from the noble Baroness, Lady Doocey, which we had the opportunity to discuss outside the Chamber a little bit before we reached this stage. I took the opportunity to look into it in more detail with officials.
For those reading this in the Official Report, it might be helpful if I address the point made by the noble Earl, Lord Sandwich, about the reason for this provision. The total cost of visitors and temporary migrants accessing NHS services in England alone has been estimated at £2 billion per year in 2013. Around £950 million was spent on temporary migrants, such as students and workers, from whom no charge was recoverable. Non-EEA temporary migrants—workers and family—here for more than 12 months had a weighted average cost to the NHS of just more than £800 per head, and a total estimated gross cost to the NHS of more than £500 million per year. Non-EEA students—for any length of stay—had a weighted average cost to the NHS of just more than £700 per head, with a total gross cost to the NHS of £430 million per year.
Noble Lords will be aware that the Immigration (Health Charge) Order 2015, made under the Immigration Act 2014, requires that non-EEA temporary migrants who make an immigration application to come to the UK for six months or more, or who apply to extend their stay in the UK, make a direct contribution to the NHS via payment of an immigration health surcharge. The Home Office collects the charge as part of the immigration application process and payment of it is mandatory. If the charge is not paid, the applicant is not processed. Temporary migrants pay upfront an amount that covers the entire period of their permission to stay in the UK. Where an application is refused, rejected or withdrawn, the charge is fully refunded.
The charge has been set at a competitive level of £200 per annum per migrant, and at a discounted rate of £150 per annum for students—well below the true cost to the NHS of treating these migrants, as stated in my opening remarks. It is also set below the rate that migrants expect to pay for health insurance in competitor countries, such as Australia and the USA. For example, a student applying to Harvard in the USA would, in most cases, have to pay a fee of around £600 per year to access basic health services. To access Harvard’s most comprehensive health plan would cost an additional £1,500 per year. In contrast, the surcharge for a foreign student applying to the UK would be only £150 per year.
Upfront payment of the full amount of the charge covering the length of the visa period is administratively far simpler than requiring migrants to make multiple payments of the appropriate amount to the Home Office and the Home Office enforcing such a requirement. Any movement to an instalment approach would bring with it considerable administrative and operational burdens. An observation has already been made by the noble Baroness, Lady Hamwee, on the administrative costs. The amendment would raise them. Home Office staff would need to ensure that payments were being made. If they were not, they would need to chase payment and, in some cases, enforcement action might be required, which could involve curtailing a person’s leave.
Payment by instalments would also lead to confusion about entitlement to free treatment and place unnecessary administrative burdens on the NHS, as NHS staff would have to check at each contact with a patient that they were up to date with their payments. There would also be uncertainty about whether our health system would actually receive all the expected income from the surcharge, which would be an unwelcome prospect for the NHS.
Multiple payments would also require significant changes to the IT system which is an integrated part of the online immigration application process and which currently has no mechanism for visa applicants to make further payments at a later stage without manual intervention. It would be difficult, complex and costly, therefore, to enforce payment of the charge once the visa had been issued, and would put at risk some of the income generation necessary for our health services. Some noble Lords have, during the debate, noted that Home Office resources are limited. We should not divert valuable resources away from the important task of dealing with those illegal migrants who do most harm to our society to manage what would be an overly complicated surcharge payment system.
I may have misinterpreted what the noble Lord said, but I think that he used the phrase “simpler than requiring instalments”. However, it is not the intention of the amendment to require instalments but rather to allow them to be used in what may be a very small number of cases—I do not know whether that is the case—of people who simply cannot pay upfront. Has he made any estimate of what proportion of people are likely to ask to pay by instalments, because I do not think it is assumed that that would be the default position?
If you offered interest free credit in the commercial world, I guess that probably most people would take advantage of it. Therefore, the cost might be quite significant, unless the noble Baroness is proposing an additional charge for accessing the system through an instalment process, which I do not think she is. The points I made earlier related to the current system. I have not just arrived at this point, as it were. When the noble Baroness, Lady Doocey, raised this issue with me—the week before last, I think—I checked with officials and looked at the system. I was told that it is very difficult because at the moment everything is up front—the costs and everything—and the boxes have to be ticked in order to move on to the frame. As I say, we are not making a spurious objection to the measure. I have more to say on that, but I will now address Amendment 177.
Amendment 177 seeks to exempt children and victims of domestic violence from the charge. Following extensive debates in Parliament during the passage of the Immigration Act 2014, the Government put safeguards in place to protect vulnerable groups. The Immigration Act 2014 provides the Secretary of State with the power to exempt certain categories of applicant from the requirement to pay the immigration health charge. These categories are listed in Schedule 2 to the Immigration (Health Charge) Order. Current exemptions include children who make an immigration application or who are looked after by a local authority and a person who applies for limited leave under the Home Office concession known as the destitute domestic violence concession. In the case of the latter, these are individuals who are here as partners of British citizens who are settled here, and can consequently apply for settlement. Individuals who are in the UK for less than six months or who have not paid the charge can still access NHS services, although some of these might be chargeable. However, a key principle of the NHS is that medical treatment which is urgent or immediately necessary in the judgment of a clinician is never withheld from anyone, irrespective of their chargeable status.
Furthermore, since April 2015, treatment that is needed as a consequence of domestic violence is exempt from charge to all overseas visitors, regardless of whether or not they have paid the immigration health charge. This includes both physical and mental health needs. The only stipulation is that the visitor has not come to the UK for the purpose of seeking that treatment.
I am grateful to the Minister for giving way. Before he moves on, he will recall that I raised the issue of our obligations under Article 18 of the United Nations Convention on the Rights of the Child. Has he taken advice from officials and Law Officers as to whether we are compliant in doing the very minimum, as he has described to the House today?
On that point, which I was just coming to, migrants making an application for asylum or humanitarian protection, or a claim that their removal from the United Kingdom would be contrary to Article 3 of the European Convention on Human Rights, will be exempt under the existing rules.
A question was asked, very reasonably, about definition. The explanation is quite lengthy, so perhaps I might put it in writing to the noble Baroness, Lady Doocey, and copy it to other interested Members. I know that that information would be useful ahead of day four of consideration in Committee, when other related issues will be considered.
On the points made by the noble Lords, Lord Hylton and Lord Alton, and the noble Baroness, Lady Lister, children who are visiting the UK with their parents or guardians or whose parents are here unlawfully are generally not entitled to free NHS hospital treatment. However, they will always be provided with immediately necessary and urgent treatment, even if their parents have not paid in advance or are likely to be unable to pay afterwards. But some particularly vulnerable children are exempt from the charge—for example, refugees, those looked after by a local authority and victims of human trafficking. We do not intend to establish a blanket exemption for children, as this poses a significant risk that people would bring their children to the UK to seek treatment for existing serious illnesses. No child is deprived of access to health services, but in some cases this will have to be paid for, unless an exemption applies.
The noble Lord, Lord Alton, asked about the Cardinal Hume Centre, which I have heard of by reputation. I would be very happy to accompany him with one or two officials, ahead of Report stage, to see the work going on there and to hear about the practical concerns. That would be a good part of testing out what we are doing. However, the Government believe that those who make use of NHS services must pay for them. The immigration health charge is collected as a direct contribution to the NHS. Children are as likely to make use of NHS services as adults, and it is therefore only right that parents and guardians bear the responsibility of paying a charge for their child, except in the type of situation I have identified. Those who pay the charge will then receive free NHS treatment for the duration of their lawful stay in the United Kingdom.
With these explanations and that commitment to explore this issue further ahead of Report, particularly in relation to the Cardinal Hume Centre, I invite noble Lords to consider withdrawing their amendments at this stage.
Before the noble Baroness decides what to do about this group of amendments, I ask the Minister to reflect between now and Report on whether Section 38 of the Immigration Act 2014 is compatible with the agreements we have with other EU states for reciprocal health and welfare benefits. If it is not, that would seem to me to reflect very badly on our current efforts to renegotiate membership.
I thank all noble Lords who have spoken to this amendment. I really feel saddened that the Government will not even consider something as basic as allowing people to pay a health charge by instalments—certainly that is the message that is coming through loud and clear. We have heard excuses about an IT system that does not work—when has any government IT system ever worked for anything? I am afraid that just does not wash at all.
The Minister said that mothers ought to pay for their children. I do not think anyone would disagree in principle, but in the case that I mentioned of Ruth, who came here and is now destitute, living in a shelter, how on earth could she possibly raise the money to pay £200 for each child and herself to renew her visa? She just cannot. She has no job; she has no home; she has been abused. In those circumstances, surely the Government could think again. There is no way that people in this situation can raise the money. It is not a question of them not wanting to; they are physically unable to do so. I am very disappointed.
The Minister made great play about the cost of changing the systems and collecting money, but what about the costs that are being incurred day after day because the visa waiver system is not being applied properly? I have evidence—which, I repeat, I am very happy to go through with the Minister—of case after case of the applicant being turned down up to four times and then on the fifth occasion being accepted. What about the cost of all the staff involved in that—what about the cost of the lawyers? Why are the Government not concerned with that? If the Government managed to run the fee waiver system properly, they might have sufficient funds to pay the tiny charge that will be necessary in order to let these people pay their health charge by instalments.
I hope that the Minister might come and talk to me and some of these people, and see for himself that these problems are real. I would be very happy to share with him all the issues and all the evidence that has been accumulated. I hope that he might accept that invitation and think again and not just close it off now. For now, I beg leave to withdraw the amendment.
Amendment 176 withdrawn.
Amendment 177 not moved.
Schedule 4: Bank accounts
178: Schedule 4, page 90, line 26, leave out “may” and insert “shall”
My Lords, the amendments in this group are in my name and that of my noble friend Lord Paddick. They concern the provisions about bank accounts—the restrictions on bank accounts and, more particularly, the requirement for banks to make checks and the opportunities for the Secretary of State to apply for a freezing order prohibiting the use of the account.
I accept that all these provisions are to be reviewed within five years of the schedule coming fully into force. I am glad to see that in the Bill. We are often told that of course all legislation is routinely reviewed after three years so I do not know the significance of the five years or the particular significance of it coming “fully” into force. Is there some plan that perhaps the Minister can share with the Committee for the gradual implementation of the provisions?
Amendment 178 would provide that an exception shall—not may—make certain provisions. I assume that “may” in new Section 40D(4) is legislation speak for “shall” but as we so often say, if that is what it means, it would be nice if it said so, because the day will come when a court says, “Parliament knew what it was saying when it said ‘may’ not ‘shall’”, and that what we meant was that the matter was permissive not mandatory. Amendment 179 is to probe why the right of appeal is to be limited to a current order. That may relate to perhaps the major issue in this group: compensation.
Amendment 180 would allow the court specifically to order compensation. It appears necessary as, when the matter was debated in the Public Bill Committee in the Commons, the Minister confirmed that compensation did not fall within the incidental or consequential orders that the relevant appeal court can make under the Bill. This concerned the Joint Committee on Human Rights, of which I am a member. It has written to the Home Secretary to raise the issue of compensation where a bank account is frozen and this results in financial loss to an individual, or an innocent third party who sustains an actual loss, as a result of an error on the part of the Home Office. The JCHR wrote that,
“the availability of compensation could be a relevant factor in judging compliance with the right to peaceful enjoyment of possessions in Article 1 to Protocol 1 of the European Convention on Human Rights”.
That may sound slightly arcane to your Lordships but it is an additional argument to the one that it would, frankly, be right for the Home Office to pay compensation if it makes an error.
The Government have said that they are confident that any errors could be resolved “in real time”—I suppose that means immediately—and that compensation is perceived to be disproportionate in the case of an error. If it can be resolved, why are the Government worried about paying compensation and why would it be disproportionate? The chair of the JCHR, Harriet Harman, has said that given these factors,
“it is not clear why … compensation … is perceived to be disproportionate”,
and, in the measured language that is always used in these circumstances, went on to write that an amendment might be considered to provide for payment of compensation.
As I understand it, there will be no independent oversight of the operation of these provisions and no opportunity for an individual to challenge the closure of the account, or to challenge incorrect or unreliable information that has led to that closure. My noble friend Lady Doocey referred to the reliability or otherwise of NHS IT systems. I do not think that that is solely the experience within the NHS. What if databases are not absolutely correct and up-to-date? I guess that I would not be the only noble Lord today who may have had the odd problem with an error regarding the operation of a bank account so, while our banks are wonderful institutions as well, the Government’s responses are a bit too comforable.
Almost finally, Amendment 181 would provide that an application to freeze an account could be made only if it is overwhelmingly in the public interest in respect of the particular account holder. We know that so much of this Bill is directed at deterring would-be immigrants coming to this country, and I fear that this is another bit of message-sending. I would like to be reassured that an account holder’s particular and individual circumstances are considered.
Amendment 182 is consequential. Amendment 183 would provide that regulations under these new sections of the Immigration Act 2014 would be affirmative instruments. I beg to move.
My Lords, the amendments in this group are all in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, and concern the regulations set out in Schedule 4 to the Bill about bank accounts and the processes around freezing orders. These amendments generally seek to improve this section of the Bill by bringing greater clarity to the process. Amendment 180 provides for the court to be able to award compensation, which seems reasonable to me. If a court has allowed an appeal, it has presumably determined that it was wrong to freeze the account in the first place. Taking into account how long the order was in force and the inconvenience to the person or body and being able to award an amount of compensation do not seem unreasonable, taking all relevant factors into account. If the noble Lord, Lord Ashton of Hyde, thinks that this is adequately covered in Section 40E(3)(b), it would be useful if he could say so when he responds to the debate.
I am not sure whether Amendment 182 has the desired effect when looking at Section 40C and the proposed amendment. Amendment 183 would increase the number of regulations that are subject to the affirmative resolution procedure, which is very welcome. I know the noble Lord, Lord Ashton, said recently that I never agree to negative procedures. That is just not the case. However, all sides of the House have voiced concern about the Bill, and the more regulations that are covered by the affirmative procedure, the better.
This section is on access to services. Clause 13 is about tenancies and landlords, who can potentially go to prison for up to five years and be fined. I could not find anything about directors of banks if bank accounts are opened improperly. What happens to bank directors? They seem to be able to get away scot free. It would be useful if the noble Lord will respond on what happens about bank accounts.
Amendment 178 would require, as opposed to permit, provision for reasonable living and legal expenses to be included in a freezing order. Amendments 179 and 180 would permit an appeal to be made against an order that is no longer in force and allow courts to order compensation. Amendments 181 and 182 would mean freezing orders could be applied for or maintained only if that is overwhelmingly in the public interest. Amendment 183 would make nearly all the regulation-making powers in these provisions subject to the affirmative resolution procedure. I take back what I said about the noble Lord, Lord Kennedy: I am sure he addresses the affirmative and negative procedures with the due consideration they deserve, and he is eminently flexible.
The noble Lord will know that the Bank of England Bill, which is currently before the other place, puts in a new regime which gives specific responsibility to individual senior managers for various duties. Therefore, individual bank directors will not be able to escape as they have in the past.
May I press the Minister on this serious point? There are serious provisions for landlords who commit offences, but there is nothing about bank directors. The Minister should reflect on that and come back with regulations. I know he is busy on another Bill, but this is an important matter.
I absolutely agree that it is an important matter. I do not necessarily think that this is the place for it, given that this is an immigration Bill, but I will certainly reflect, along with my noble friend the Minister, on what he said. But it may not be something for this Bill.
Significant safeguards against error are built into the bank account provisions. We already share with banks details of illegal migrants who are liable to removal or deportation and have no open application or appeal. These data are subject to rigorous checks. There will be a further check under the new provisions before the bank takes action to close an account or the Home Office applies to freeze it—in which case, of course, a court is also involved.
As the code of practice will set out, applications for freezing orders will be reserved for a small number of cases with significant funds. The person’s circumstances, including the risk they pose to the public and their immigration history, will be carefully considered. I agree that it must be in the public interest to freeze an account, but not that the legislation needs to say so. We want people with no right to be here to leave the UK. Applying for and monitoring orders will involve a cost to the Government and the courts. They will only be used where we believe it to be necessary. This will be where a person’s history and behaviour make it both difficult and very desirable to remove them. They will also have to have enough money to make freezing it until their departure a significant incentive to leave.
Freezing orders will not cause destitution. The court has a broad discretion to make exceptions, with reasonable living and legal expenses explicitly included. In some cases another source of funds may mean that such provision is not required. Standard provision for such expenses will normally be included when an order is first applied for. Affected persons can apply to the court to have an order varied or discharged, and the Home Office can support an application where it agrees with it. This would allow orders to be swiftly varied on the papers without a hearing.
Courts can consider complicated circumstances, and there is discretion as to which accounts are included. Further detail will be set out in rules of court and guidance. It is appropriate to provide for an appeal to a higher court, but it would be wasteful where an order is not in force. Nor do we believe that it is necessary to make provision for compensation. The risk of an order being erroneously imposed is extremely small. In addition to the checks outlined above, the court will have to be convinced that the order is appropriate and proportionate. I have already explained how it may be swiftly varied if necessary.
I turn to Amendment 183. Key regulation-making powers in these provisions are already subject to the affirmative resolution procedure. Of those subject to the negative procedure, all but one concern matters of administrative detail. The Government continue to work with representatives of the financial services sector to ensure that these provisions are effective without imposing an excessive burden on business. The remaining regulation-making power is to bring into force the code of practice on when a freezing order will be applied for. It is right that the code is laid before Parliament, so that the Government’s intentions for the orders are clear, but ultimately it will be the court that decides if a freezing order is made. The negative procedure is therefore appropriate. The Delegated Powers Committee has made no criticism of the powers in this schedule and has recommended no changes.
The noble Lord, Lord Kennedy, asked about new Section 40E(3), which I confirm would allow a court to order compensation on appeal. However, there is no route to compensation if an order is lifted before it is appealed. The noble Baroness, Lady Hamwee, asked how an account closure can be challenged if the Home Office data were wrong. Individuals whose accounts are subject to closure will be informed by the bank of the reason, provided it is lawful to do so. If, despite all the checks, a person still considers that they are lawfully present, and that incorrect information has been provided, they will be given the information they need to contact the Home Office swiftly so that any error can be rectified. As is currently the case with data provided to Cifas, the Home Office will be able to correct any error in real time—as the noble Baroness mentioned—so that the person’s details will be immediately removed from the data which are shared with the banks.
The noble Baroness also talked about the Joint Committee on Human Rights. I have explained why I do not think this is necessary, but we will consider with care any further representations from the committee.
There was a question on why there is compensation provision for errors made in closure orders but not in freezing orders. There will be repeated checks on the Home Office data and careful consideration of an individual’s circumstances before a freezing order is applied for. The court must also be convinced that the order is appropriate and proportionate. In the light of those comments, for the moment, I ask the noble Baroness to withdraw her amendment.
My Lords, I am glad to have confirmation that compensation falls within the phrase “incidental or consequential orders”: that was not how I read, or misread, the previous debate.
The noble Lord, Lord Kennedy, made a really interesting point that was not fully answered. Unless there is a liability on the bank, we will not get to the point of considering whether individual directors have any liability. The Minister said that there would be no place for that in an immigration Bill; there is no place for a lot of the provisions in the Bill.
Overwhelmingly, I get the message: “We should not worry about it. Everything can be put right if it goes wrong, so there is no need for provision for compensation”. A different way of putting that is, “We won’t worry about it. Probably compensation would be appropriate only rarely, because things will be put right as soon as they go wrong, if they go wrong at all”.
But clearly we need to move on to other business so, at this point, I beg leave to withdraw the amendment.
Amendment 178 withdrawn.
Amendments 179 to 183 not moved.
Schedule 4 agreed.
NHS: Trust Finances
My Lords, with the leave of the House, I shall now repeat as a Statement the response to an Urgent Question on NHS finances given in the other place by my honourable friend the Minister for Care Quality. The Statement is as follows:
“The House will know that in 2014, the NHS itself set out its plans for the next five years, which included a front-loaded funding requirement of £8 billion. Because of our strong economy, the Government have been able to honour that request and will be funding it in full, including a down payment of £2 billion in this financial year ahead of the spending review period. Next year, there will be an increase of £3.8 billion and, taken together, we shall therefore be providing £10 billion towards the NHS five-year forward view.
Within that context, a number of hospital trusts are running a financial deficit—in large part because of the need to staff wards safely after what was learned in the aftermath of the scandal of Mid Staffs. It is also the case that the best hospitals have begun to transform along the lines required by the NHS Five Year Forward View, but some have not, and this has made the management of their finances all the more difficult.
NHS Improvement expects that NHS hospital trusts will report an overall deficit for the current financial year, 2015-16. Savings achieved in the rest of the NHS have ensured that this overall deficit will be offset, so that the system as a whole will achieve financial balance. For the next financial year, NHS Improvement will continue to work with trusts to ensure that they improve their financial position. To help them in this endeavour, the department has introduced tough controls on the costs of staff agencies, a cap on consultancy contracts and central procurement rules, as proposed by the noble Lord, Lord Carter, in his review on improving hospital efficiency. The House should know that the savings identified by the noble Lord total £5 billion a year by 2020. The chief executive of NHS Improvement, Jim Mackey, is confident that, taken together, these measures will enable hospital trusts to recover a sustainable financial position next year”.
That concludes the Statement.
My Lords, I thank the noble Lord for repeating the Answer to the Urgent Question in the other place. If ever the inadequacy of the 2012 Act needed illuminating, the Minister has certainly done that today. The reality is that we have two separate regulators giving exactly opposite instructions to NHS trusts. The CQC tells hospitals that they are unsafe and should increase their clinical staff—I do not believe that one single report by the CQC has not said that they need to increase their clinical staff. On the other hand, Monitor and the NHS TDA tell hospitals to cut staff.
Like me, the Minister has been chairman of an NHS foundation trust. What on earth are the chairman and board meant to do when they receive this conflicting advice from the regulators, all dressed up in gobbledegook and ambiguity to cover the regulators against the nonsense they are coming out with? What does the Minister say to the King’s Fund? On Saturday, it said that, three years on from the report into Mid Staffs,
“which emphasises that safe staffing was the key to maintaining quality of care, the financial meltdown in the NHS … means that the policy is being abandoned for hospitals that have run out of money”.
The Minister said that the settlement secured by the Department of Health in the spending review would sort out the financial pressures that hospitals are under. I know nobody actively serving on the front line of the NHS who believes that there is any chance whatever of that happening over the next five years. Monitor and the TDA have written to every hospital asking them to take urgent steps to regain control of their budgets, including headcount reductions. Was the Minister or the Secretary of State aware that that letter had been sent? Did it receive ministerial approval?
Finally, on the question of the £8 billion that the NHS was meant to have asked for, I point out to the Minister that the NHS did not ask for it; it was the NHS Commissioning Board, which is not the NHS. Again, I know of nobody of any repute in the NHS who thought that £8 billion was anywhere near enough. Would the Minister confirm that even the NHS Commissioning Board in its Five Year Forward View said that the £22 billion required in efficiency savings would be a huge stretch? Can he confirm the £5 billion identified by my noble friend Lord Carter? There seems to be a big gap between that £5 billion and the £22 billion.
My Lords, the noble Lord asked a number of questions. Starting in reverse order, the Five Year Forward View was signed by not just the NHS Commissioning Board but also all the ALBs. Of course the £22 billion is a huge stretch. No one denies that and it requires a transformation in the way in which healthcare is delivered in this country. In terms of efficiency savings, the requirement for next year is 2%. We expect that to continue at around 2% to 3% over the five-year period.
I come to the noble Lord’s other questions. There is not a direct conflict between safe staffing levels, efficiency and financial balance. In good hospitals, the three go together. Of course I accept that there have been tensions and it is not surprising, looking back on it, that the reaction to what happened at Mid Staffs led to a number of hospitals increasing staffing levels very rapidly. I remember talking to the noble Lord when he was chairman of a trust—as I was at the time, or I might have been at the CQC—and of course I understand those pressures. All boards of all hospitals must live with those pressures and come to the right balance. I accept that the newly reinvigorated CQC has added to some of the pressures on hospitals to increase the level of staffing.
On the King’s Fund, I have not seen the report that the noble Lord mentioned and that reference to the “financial meltdown”. We expect to break even across the NHS this year. There is £3.8 billion extra spend going into the NHS next year and we hope that when all the plans have come in from the hospital trusts we will be in reasonable shape.
The noble Lord referred to the letter sent out, which I think was leaked in the Guardian, which led to this Urgent Question. I did not see the actual letter before it went out, but there is nothing in it that comes as a big surprise.
My Lords, a good example of NHS trusts doing what the Government have asked them to do and working together to deliver care more efficiently is the Uniting Care Partnership in Cambridgeshire and Peterborough, which collapsed after only eight months. We are told that the three NHS entities involved in the contract will continue to deliver care under the new model without disruption. If this is able to be done, why was so much money wasted in the bidding process? Could not they have worked together anyway? How much did the whole process cost and how much was paid to their advisers, the Strategic Projects Team, which did not seem to realise that the contract at the agreed price was simply undeliverable? Is not it clear that the CCG simply did not have enough money to deliver those services?
I think that the noble Baroness’s party was in government when that contract was negotiated, although it seems a bit churlish to remind her of that. The fact is that, as we move to these new ways in which to deliver care, risk is going to have to be taken. Some of the new ways in which we do it are not going to work. In this case, it clearly did not work. It was a very big project—£800 million in total value, I believe, over five years, for older people in Cambridgeshire. It was a highly complex contract and, tragically, it has not worked out. I shall have to come back to the noble Baroness if I can about how much it cost in fees.
My Lords, the Minister mentioned the chief executive of NHS Improvement in very approving terms. Is he aware that that same chief executive told the House of Commons Public Accounts Committee that the sector’s deficit for the current financial year, 2015-16, looks,
“like it is heading towards £2.5 billion or perhaps even north of that”.
Capital to revenue transfers and “accounting adjustments” will kick in before April to bring the number down. Does that mean that the much-touted £3.8 billion that will come into the NHS next financial year, 2016-17, already has £2.5 billion to be offset against it before the financial year starts?
My Lords, it is true indeed that Jim Mackey mentioned those figures. He is hoping that he can get that deficit down to £1.8 billion by the end of the year as a result of some of the capital to revenue and other accounting adjustments to which the noble Lord referred. We are also hoping that the reduction in agency spend will start to have a big impact in the final quarter of the year. We will get the third quarter results in two weeks’ time, when we will have a better idea as to where we will end up at the end of the year.
Correct me if I am wrong, but the noble Lord mentioned in his Statement imposing a tariff on agency staff, cutting down on consultancy fees and the potential savings that the report of the noble Lord, Lord Carter, might produce—although most people doubt that it will. Where does he think that the finances of the NHS will be on 1 April 2017? What is his prediction?
The cap on agency staffing rates and on agency staff has really started to apply only in the past six weeks. So far, it looks as if we are making significant progress there. As I said in answer to the Question, the NHS is receiving £3.8 billion of extra funding in the forthcoming year. We believe that that will enable it to restore its finances to a proper balance by April 2017.
What are the Government going to do about the haemorrhage of finances into the PFI deals, given that £11.8 billion of buildings will have cost the country £79 billion by the time 31 years comes round? By then those buildings might very often not be fit for purpose because things have moved on so fast. Year on year there is a haemorrhage of money from the NHS to finance these deals. Last year, £2 billion went in that direction.
It is clear that a number of these PFI deals were massively expensive and have put huge pressure on a relatively small number of trusts. However, the fact is that we have entered into these long-term contracts and there is no way of getting out of them. I am afraid that it is a cost that the NHS will have to continue to bear.
Committee (3rd Day) (Continued)
Clause 20: Powers in connection with examination, detention and removal
184: Clause 20, page 25, line 12, out “should” and insert “is required to”
My Lords, Amendment 184, in my name and that of my noble friend Lady Hamwee, concerns the power of immigration officers to examine the immigration status of those entering the UK. Clause 20(2) inserts the ability of the immigration officer to curtail existing leave to enter the UK. The amendment would replace the consideration of whether the leave “should be” curtailed, which implies an inappropriate degree of discretion, and substitute “is required to” be.
Also in this group is our opposition to Clause 21 standing part of the Bill. It seems disproportionate that immigration officers should have the power to search premises simply to establish whether an employer should be given a civil penalty for employing an illegal worker, or to establish whether a landlord should be given a civil penalty for leasing a property to a disqualified person. Immigration officers already have powers to search for evidence in relation to criminal offences related to these two activities. Surely it is only in the most serious cases, where a criminal prosecution would at least be being considered, that it would be appropriate for immigration officers to search premises in this way. It is rare for powers of search to be granted in connection with civil penalties in British law, and Clause 21 should not undermine such a principle.
We also oppose Clause 22 standing part of the Bill. This clause allows an immigration officer who is lawfully on premises to seize anything that he thinks may be evidence of any offence, under any legislation, if he thinks it necessary to prevent the evidence being concealed, lost, altered or destroyed. Initially, this appears a sensible approach, to obviate the need to call for police assistance when something is discovered that is not related to an immigration offence—for example, discovering what appear to be class A drugs.
Police officers receive extensive training in securing and preserving evidence, and in the questioning of suspects in relation to the discovery of evidence during searches. In addition to the need to carefully question the subject about the ownership of the items in question, since usually the owner of the premises denies that the item belongs to them, there is the question of whether photographic or forensic evidence is required in situ. I have been involved in searches of premises, and there have been many cases of police being involved in searches of premises where the very facts that the substance in question was on the premises and who it belonged to have been questioned subsequently in court. It is something of which the police have now had extensive experience, and they know how to handle these situations. I suggest that it would take a lot of training and experience for immigration officers to reach the level of expertise necessary to ensure that convictions subsequently take place. Either immigration officers will require extensive, and necessarily expensive, training in evidence preservation and the questioning of those suspected of non-immigration offences, or there is a real danger that valuable evidence will be lost in such cases.
There is also the question of what I might call false positives, when immigration officers seize items that they wrongly believe to be evidence of an offence and then pass them on to the police, placing a significant administrative burden on the police to process, secure and subsequently return the items to the owners. With significant cuts to police resources, the last thing the police need is for immigration officers to dump innocent items on them that they then have to deal with. We therefore believe that Clause 22 should not be part of the Bill. I beg to move.
My Lords, Amendment 184 and the two clause stand part debates in respect of Clauses 21 and 22 give an important opportunity to explore here exactly what the intention is behind the clauses. It is important that the Minister carefully sets out what he believes are the reasonable grounds for immigration officers to conduct a search for documents in respect of illegal working or leasing premises to disqualified persons obtained in the commission of an offence. Will the Minister set out what he means by a search of the premises? At any point, would that include a search of the person? How would that be conducted?
These are very sensitive matters and I want to be satisfied that proper processes are in place, and that people are treated with respect. We often need to remember that asylum seekers have not always had a good experience of meeting officials of the state in other countries, and we must ensure that actions are taken in a proportionate manner and to the highest professional standards. I have the highest regard for the officers who undertake this work for the Immigration Service; they do a very difficult and challenging job.
The noble Lord, Lord Paddick, made an important point when he talked about the extensive experience and knowledge that police officers have when it comes to conducting searches and preserving evidence to secure convictions. Are we confident that the immigration officer would have this knowledge? The noble Lord makes another important point when he talks about the burden of bureaucracy arising from items taken during a search that are then passed on to police but in the end do not secure any convictions because there is no offence at all.
My Lords, before the Minister replies to the noble Lords, Lord Kennedy and Lord Paddick, may I add a word in support of their points, particularly the point about proportionality that has just been made by the noble Lord, Lord Kennedy? Why does the Minister feel we need to add to those powers that immigration officers already have, as set out in chapter 16 of the Home Office Enforcement Instructions and Guidance?
Would he also comment on the extensive powers that immigration officers already have to search without warrant in connection with a criminal offence? What is envisaged here, as I try to understand it, is to give those same officers powers to search premises without a warrant, in circumstances where they do not have any reasonable suspicion that a criminal offence has been committed. Is that the case? Is there no restriction in this clause authorising an immigration officer to act only where it is not practicable to obtain a warrant? If that is so, this is quite an extension of powers, and one that is disproportionate in the way that the noble Lord, Lord Kennedy, has described.
I am obliged to the noble Lords, Lord Paddick, Lord Kennedy and Lord Alton, for their observations on these provisions. I shall begin with Amendment 184, which seeks to insert the phrase “is required to” in place of “should”, and explain why that would not be appropriate. As I observed, Amendment 184 seeks to ensure that an immigration officer’s power to examine a person for the purpose of making a decision to curtail their leave is limited to whether the person’s leave is required to be curtailed. The use of the words “should be”, which appear in Clause 20, reflects the wording already included in paragraph (2) of Schedule 2 to the Immigration Act 1971, which refers to examination on the basis of whether a person should be given leave or refused it. It naturally follows that the power to examine for the possible purpose of making a curtailment decision is on the same basis. Indeed, it would be rather strange if one test differed from the other in that context.
The effect of the amendment would be to fetter the Secretary of State’s discretion under the Immigration Act 1971 to decide when a person’s leave should be curtailed. The basis on which leave may be curtailed is set out in the Immigration Rules. Some of these are mandatory probations and some are discretionary. An example of a discretionary ground on which leave may be curtailed is when the Secretary of State considers it undesirable to permit a person to remain in the United Kingdom in light of his or her conduct, character or associations. Immigration officers therefore need to be able to question a person to ascertain whether curtailment is or is not appropriate. I can reassure the noble Lord that immigration officers may question only people who have already entered the United Kingdom for immigration enforcement purposes where they already have some information, or reasonable grounds for suspecting, that the person is in breach of immigration law. Therefore it would be wholly inappropriate, having regard among other things to the terms of the Immigration Rules, to put in this amendment in the form of a requirement rather than a discretion.
Clause 21 gives immigration officers a power to search premises for documents that might help in determining whether a civil penalty should be imposed on an employer or landlord. This power may be exercised only where immigration officers are already lawfully on premises. I will come back to this point in the context of the observations from the noble Lord, Lord Alton; it is not a question of dispensing with the requirement for a warrant, but I will address that point directly. A primary role for immigration enforcement activity is the disruption of illegal working and illegal renting. We believe it is fitting for immigration officers to have specific administrative search powers where they are exercising powers for a non-criminal purpose.
Immigration officers already have powers to search for evidence of the offence of employing illegal workers and will do so for the new offence of leasing premises to a disqualified person. However, as I am sure noble Lords will agree, it is often more appropriate to impose a civil penalty than to pursue a criminal prosecution. Immigration officers provide employers and landlords with an opportunity, during a visit to the relevant premises, to supply evidence that they have undertaken right-to-work checks before taking any enforcement action. If an employer or landlord is able to do this, no further action is taken against them.
While I understand that some noble Lords may have concerns regarding the reasonableness of having a power of search in the context of a civil penalty, where immigration officers have established through existing powers that a migrant does not have a right to work or a right to rent, and the employer or landlord is unable to demonstrate that they have made the appropriate checks, it does not seem unreasonable for the immigration officer to be able to search for evidence such as payslips or timesheets, tenancy agreements and letting paperwork. This is especially important in cases where a migrant claims simply to be a guest at residential premises or “assisting”, for example, in a restaurant.
While search powers in the civil penalty context are relatively rare, they should not be disregarded purely on this basis when there is a compelling case for introducing them. By equipping immigration officers with these new powers, the Home Office should be enabled to make better-informed decisions as to whether liability for a civil penalty has arisen and help to ensure that only non-compliant landlords and businesses are faced with civil penalties. To put the matter shortly, it would be rather strange if, having made provision for civil penalty, we should say to immigration officers, “You have the power to search if you intend to pursue a criminal prosecution but you have no power to search if you intend to take the lesser step of imposing only a civil penalty”. For that reason, Clause 21 is considered material to these provisions.
Clause 22 provides a power for immigration officers to seize anything they may find in the course of exercising a function under the Immigration Acts while lawfully on premises where they believe that it has been obtained in the consequence of committing a crime, or where it is evidence of an offence. Clause 22 allows them to seize such an item but only to prevent it being concealed, lost, altered or destroyed, and to retain it unless a photograph or copy is sufficient. It is sometimes the case that, while searching premises using immigration powers, immigration officers may encounter quite clear evidence of a criminal offence. Presently in such circumstances they are required to contact the police and invite them to attend the premises in the hope that perhaps some further steps may be taken to retain the relevant material. In the mean time, they have no power to prevent that material being removed, destroyed or simply taken away somehow, which seems a somewhat unusual situation for them to be left in.
This power will therefore enable immigration officers to retain such material in circumstances where they are already lawfully on premises, either by virtue of a warrant or because they have been given entry but only for the purpose of preserving that evidence. They will not be responsible for the chain of evidence through, for example, to a prosecution. They will take steps to hand that evidence over to the police at the first available opportunity. For that purpose, they will be trained with regard to obtaining that evidence. I make clear, to reassure the noble Lord, Lord Kennedy of Southwark, that there is no provision in Clause 22 for any search of the person. That power will not be conferred on immigration officers in this context.
As regards proportionality, it respectfully appears to us that it is appropriate and proportionate that immigration officers who encounter material which on the face of it is the product of some criminal act should be able to at least preserve that evidence pending its availability to the investigative authorities. I add that, in fact, some immigration officers have power under Section 19 of the Police and Criminal Evidence Act 1984 to search for and recover evidence of a crime. However, that power is exercised only when the relevant immigration officers have gone through the full training that would also be available to police officers. Therefore we accept that that is an exceptional case. Here there will be suitable training for immigration officers for the purpose of seizing and retaining evidence of a criminal act.
My Lords, I am grateful to the Minister for what he said about the training of immigration officers. But before he goes on to the next point in his argument, does he recall that in 2014, in the case of R v Ntege and Others, his honour Judge Madge stayed the prosecution because of both bad faith and serious misconduct? He held:
“I am satisfied that officers at the heart of this prosecution have deliberately concealed important evidence and lied on oath”.
In addition, in 2010, in Abdillaahi Muuse v Secretary of State for the Home Department, the Court of Appeal concluded that the conduct of what was then the Immigration and Nationality Directorate in the unlawful imprisonment of Mr Muuse,
“was not merely unconstitutional but an arbitrary exercise of executive power which was outrageous”.
How can the Minister, in extending the powers that already exist for immigration officers, ensure that there is not a repetition of those sorts of cases?
Clearly, I will not comment on the detail of individual cases in this context. Those findings were made, and clearly they indicate conduct that was wholly unacceptable, and—let us add—quite exceptional, with two cases cited in many years. It is regrettable that those events occurred, but let us remember that they are isolated events. As regards the general powers of immigration officers, they will be provided with training and guidance on the use of their powers and are given enforcement instructions in guidance.
My Lords, on that very point, I know that the Minister cannot do it today, but would he be prepared to write to noble Lords, or to the noble Lord, Lord Paddick, and explain what that training and guidance will be? He said it would be very extensive, and I am sure it will be, but I wonder how long it will take, what the cost will be and how practical it will be.
I should add that the guidance on immigration officers’ use of powers is set out in the enforcement instructions and guidance, which are published on the UK Government website. But I would be content to write to the noble Lord to set out an outline of the proposed training for those immigration officers who are going to have the limited power conferred by Clause 22 with regard to the preservation of evidence that they believe has been the product of some criminal act.
There was one further point made by the noble Lord, Lord Paddick, about the false positive, as he termed it, and the administrative burden. I respectfully suggest that that burden will be no greater than the burden imposed upon police officers in circumstances where immigration officers believe that they have encountered the product of a criminal act and then telephone or radio the police and invite them to attend a premises. So there is a question of balance here, but it is not, on the face of it, going to be a disproportionate burden when compared to the present circumstances in which the matter is, in any event, brought to the attention of the police.
My Lords, I thank the noble Lords, Lord Alton of Liverpool and Lord Kennedy of Southwark, for speaking to this group. I also thank the Minister for his explanation of Amendment 184. I will read with care what he said on that particular amendment.
As far as Clause 21 is concerned, which is the power to search premises simply to establish whether a civil penalty should be imposed, I am a little confused, because I am not sure how an immigration officer can establish whether a breach of the law is something that should be responded to by way of criminal prosecution or by civil penalty until the search of the premises and the necessary paperwork has been found. If the immigration officer has reasonable cause to suspect that a criminal offence has been committed, there is an existing power to carry out that search. Now it may be that in the course of that search, using the power under the suspicion of a criminal offence having been committed, the paperwork is found to show that it is not a serious breach and therefore that a civil penalty would be more appropriate. But the search can still be conducted without a specific power to search on the basis of a civil penalty.
The Minister said that having the power to search on the basis of a civil liability would ensure that only non-compliant employers and landlords would have action taken against them. But surely a compliant employer will offer up the necessary documentation and a search without the consent of the employer or landlord will not be required. Therefore, again, I do not see why that power is necessary.
As far as Clause 22 is concerned, if it were simply a case of restraining people who were on the premises from interfering with something that was believed to be evidence of a criminal offence while the police are called and come to investigate the matter, I might be a little more sympathetic. But the Minister kept talking about seizing and retaining property, and said that immigration officers would not be in the evidence chain. Clearly, if they seize and retain the property, they are in the evidence chain: the police cannot give evidence of the fact that the property was in the premises if the immigration officer just appears at the police station with the property and tells the police officer, “I found this”.
As I said earlier, it is very important to question people in situ about, for example, a bag of drugs. It may be necessary for there to be forensic examination of those drugs for, say, fingerprints or perhaps even DNA, or for the property to be photographed in situ. That is something that I would have confidence that only the police would think about, rather than an immigration officer who is there to enforce the law on immigration rather than to deal with these other, arguably more serious, offences.
As far as the administration burden is concerned, with property being taken and given to the police versus the time that the police would have to spend going to collect the property from the premises, with the greatest respect, I do not think that the Minister realises the administrative burden that goes with police seizing property and the problems associated with it. I say that it would be a disproportionate burden on the police were immigration officers able to seize such property. But, at this stage, I beg leave to withdraw my amendment.
Amendment 184 withdrawn.
Clause 20 agreed.
Clauses 21 to 24 agreed.
Clause 25: Search for nationality documents by detainee custody officers etc
185: Clause 25, page 31, line 30, leave out “, or intends to make,”
My Lords, I beg to move Amendment 185 standing in my name and that of my noble friend Baroness Hamwee. We also have Amendments 186 through to 193 in this group.
Amendment 185 relates to the power of detainee custody officers, prison officers and prison custody officers to search for nationality documents. The powers set out in Clause 25(6) can be exercised not only when the Secretary of State has made a deportation order in relation to the individual but, as stated in Clause 25(2)(b), when the Secretary of State “intends to make” a deportation order. The briefing from the Immigration Law Practitioners’ Association expresses serious concerns about the new powers to conduct searches for nationality documents, including strip searches, in the light of the concerns expressed about the treatment of vulnerable persons in immigration detention made by the all-party parliamentary groups on refugees and on migrants. That review was conducted by Stephen Shaw and others.
On the particular issue of the amendment, if the Government mean to extend the power to include cases where the Secretary of State has fulfilled the procedural requirement to give formal notice of her intention to make a deportation order, this should be in the Bill, rather than the current wording, which is simply,
“intends to make, a deportation order”.
Amendments 186, 187, 188 and 189 relate to the circumstance where a nationality document has been seized but the person is not removed from the United Kingdom. Clause 25(13) states that the Secretary of State “may” arrange for the document to be returned, but surely she is under an obligation to return the document, so Amendment 185 seeks to replace “may” with “shall”. Amendment 192 covers the same point in relation to documents seized by a detainee custody officer or a prison officer.
Amendment 187 refers to Clause 25(13)(b), which goes on to say that a document can be disposed of and not returned if the Secretary of State thinks that it would not be appropriate to do so. Can the Minister explain in what circumstances a search for a nationality document might produce a document that is not required as part of the process of deporting an individual but should nonetheless be disposed of rather than returned? For example, the Immigration Law Practitioners’ Association reminds us that passports, one of the “nationality documents” listed in the Bill, remain the property of the issuing authority. As such, the Secretary of State has no right to dispose of these documents as she thinks fit.
Amendment 193 covers the same point in relation to a document seized by a detainee custody officer or prison officer in Clause 26(7)(b) and Amendment 212 covers a similar point in Clause 29(10) and (11) in relation to a document supplied to the Secretary of State by a public body. The amendment suggests that the document is returned to the person who supplied it rather than being disposed of.
Amendment 188 relates to Clause 25(14)(b), which states that if it is it necessary to return a document and it was not found on someone, it should be returned to,
“the location in which it was found”.
The amendment suggests as an alternative that the document should be returned to the person who appears to be entitled to it. It is difficult to envisage that a document seized as potential evidence of an immigration offence would not contain any information about the person to whom it belongs. As it stands, Clause 25(14)(b) could allow for a document that subsequently turns out to be stolen to be replaced where it was found. The Immigration Law Practitioners’ Association has pointed out a flaw in this amendment in cases where someone is seeking asylum and the returning of a nationality document to the person’s country of origin may place them in danger, but we can address this defect in our amendment on Report if necessary. Amendment 190 covers the same point for a document seized by a detainee custody officer in Clause 26(5)(b).
Amendment 189 was originally intended to challenge the inclusion of “citizenship” and documents that show where the person has come from or is going to in the definition of nationality documents, but we now accept that Section 44(5) of the UK Borders Act 2007 gives a similarly broad list of documents. However, the Immigration Law Practitioners’ Association points out that in the UK Borders Act a,
“‘nationality document’ means a document showing … the individual’s identity, nationality or citizenship”,
whereas this provision defines a nationality document as a document which,
“might … establish a person’s identity, nationality or citizenship”—
a significant widening of the power.
The document that indicates where a person has travelled from could include a guidebook, personal diary or hotel receipt. Will the Minister explain how a personal diary or a travel guide could be defined as a nationality document? If the Government want to be able to search and retain any document found, they should say so on the face of the Bill. Amendment 213 is on the same point in relation to nationality documents supplied by the police, local authorities and other public bodies at Clause 29(11) and (14).
Amendment 191 relates to Clause 26(6), which states:
“The Secretary of State may retain a relevant nationality document”,
discovered during a search of a person detained,
“while the Secretary of State suspects that … a person to whom the document relates may be liable to removal from the United Kingdom … and … retention of the document may facilitate the removal”.
Surely there must be a reasonable level of suspicion before the document can be retained rather than simply a gut instinct or a feeling of suspicion. I beg to move.
My Lords, during the excellent remarks of the noble Lord, Lord Paddick, in introducing his amendments and talking about these clauses, he referred to Stephen Shaw’s report and I want to ask the Minister some questions about that. He will know that the All-Party Parliamentary Group on Migration produced a pretty damning report on immigration detention, which led to the former Prisons and Probation Ombudsman, Stephen Shaw, being asked to investigate the treatment of vulnerable persons in detention. His report was published on Thursday 14 January, so another place had no opportunity to discuss that when it was considering the Bill, but we have a chance now to ask the Minister some questions about it in the context of these clauses.
Has the Minister had a chance to read the report in detail? It criticises the conduct of searches in immigration detention centres and it gives cause for further scrutiny of these provisions. The Minister himself, in his remarks on the previous set of amendments, said that things such as strip-searching would not be permitted, but I was concerned to read a number of accounts in Stephen Shaw’s report that involved male detention staff in searches of women, although not with the removal of clothes, and of women’s rooms in Yarl’s Wood. I am particularly interested in the situation there, as, thanks to the Minister, my noble friend Lord Hylton and I have been able to arrange a visit to Yarl’s Wood on Wednesday morning. I am glad that we will have the opportunity to put some of these questions directly to the staff who run that facility.
Mr Shaw says in his remarks:
“It is of the greatest importance that the proportion of female staff at Yarl’s Wood is increased … In the meantime, Serco should only conduct searches of women and of women’s rooms in the presence of men in the most extreme and pressing circumstances, and there should be monitoring and reporting (to Home Office Detention Operations) of these cases”.
In recommendation 35 of the report, he states:
“I recommend that the service provider at Yarl’s Wood should only conduct searches of women and of women’s rooms in the presence of men in the most extreme and pressing circumstances, and that there should be monitoring and reporting of these cases”.
During that review, Stephen Shaw identified evidence that the Home Office policy of not searching detainees, especially women, in the view of other people, is not always followed. I was struck by some examples that he gave. He said that:
“As far as the practices at Heathrow, Lunar house and Eaton House are concerned, the evidence of this review is that the Home Office’s policy that detainees (especially women) should not be searched in view of other people is not always followed”.
For instance, talking about Heathrow Terminal 3, Mr Shaw says, at paragraph 3.175:
“A female detainee was searched in front of several people”
At paragraph 3.227, talking about Lunar House, he says:
“Detainees were searched in an area where they could be seen by others in the main holding room”.
At Eaton House, at paragraph 3.240, he says:
“A female detainee was searched in the holding room by the Tascor escort who had arrived to take her to Colnbrook. This was in front of a male detainee and a male member of staff”.
Clearly, given the vulnerable position of detainees, particularly women, who are held as immigration detainees, and the lack of compliance by detention custody staff with existing policies on searching detainees, it would be highly inappropriate to extend those powers of search to include searches for the purpose of identifying nationality documents, particularly where they are so broadly defined in the way that the noble Lord, Lord Paddick, has already described to the Committee. When he comes to reply, I would be grateful if the Minister could tell us how the Government intend to respond to Stephen Shaw’s observations and recommendations.
My Lords, having visited Yarl’s Wood several times in the past, I have noted the deep anxiety of those resident there. Anything like this will be particularly disturbing to them, so that should be kept in mind.
We must always draw attention to concerns about the treatment of these vulnerable individuals, but we must also commend the Government when they take steps to protect such individuals and treat them with respect. I take this opportunity to pay tribute once again to the last coalition Government, which took children and families out of these settings. Many of us were very concerned at the large numbers of families who were detained at Yarl’s Wood, often for many months on end. I remember speaking to a 16 year-old girl who was there with her mother and her six or seven year-old sister for nine months. It is very much to the coalition Government’s credit that they decided to change the system.
I am obliged to noble Lords. I shall begin by addressing the points raised by the noble Lord, Lord Alton, and the noble Earl, Lord Listowel, in the context of the report from Stephen Shaw. Of course the background to this was the detailed Report of the Inquiry into the Use of Immigration Detention in the United Kingdom by the All-Party Parliamentary Group on Refugees and the All-Party Parliamentary Group on Migration, of which the noble Baroness, Lady Hamwee, was a member. That led to the appointment of Stephen Shaw, and as the noble Lord, Lord Alton, has observed, he recently reported on this matter. My noble friend Lord Bates, upon receipt of that report, made a Statement to the House in which he pointed out that the Government welcomed the important contribution that Stephen Shaw had made to the debate about effective detention and accepted the broad thrust of his recommendations. That will be the subject of a further response in due course, and certainly I hope before the Report stage. I hope that the noble Lord, Lord Alton, will allow me to defer any detailed comments on the points he raised until that further response is made. But what I add is that we welcome observations that he may have to make following his visit to Yarl’s Wood on Wednesday. His comments will be received in the appropriate spirit because this is a demanding area and one in which the Government are willing to seek to respond to the broad thrust of the recommendations that Stephen Shaw has made.
I turn to Amendment 185, moved by the noble Lord, Lord Paddick, but before doing so I will make this observation. He spoke about strip searches. I take issue with that term. There are full searches but they are not strip searches. It may be that he wishes to come back on that, but I take issue with the term “strip searches”; they are full searches.
It is set down in detail, but in general it means that someone is not stripped. It means that articles of clothing are removed and returned in turn, but without them being stripped.
I return to Amendment 185, which would limit the Secretary of State’s ability to direct officers to search for nationality documents to those in respect of whom she has made a deportation order under Section 5(1) of the Immigration Act 1971, preventing its use for those whom she intends to deport. It may help if I explain that the Secretary of State, in accordance with regulations made under Section 105 of the Nationality, Immigration and Asylum Act 2002, issues a written notice to those foreign national offenders who are liable to deportation under Section 5(1) of the Immigration Act 1971 stating that she intends to seek a deportation order against them. Such persons may be detained by virtue of paragraph 2(2) of Schedule 3 to the Immigration Act 1971. Therefore, the reference to “intends to” is simply a way to ensure that such persons are within the ambit of the new powers while in detention. Being able to direct a search for nationality documents once a person has received such a notice but before a deportation order is made reduces the risk of documents being destroyed when the person knows that deportation is a realistic prospect. That is the purpose of the provision in its present form and why we resist the proposed amendment.
Amendments 186 to 188, 190, 192 and 193 seek to limit the Secretary of State’s disposal options on nationality documents which are not used to remove a person, by ensuring that they must be returned to the person who was previously in possession of them or who appears to be entitled to them. On that last point the noble Lord, Lord Paddick, is of course right to say that the country which issues a passport is the proprietor of that passport, while the person to whom it is issued is the user. It is therefore that country which is entitled to claim ownership, as it were, of the passport document. That touches upon the point he mentioned about the potential risk of returning a document to an issuing authority creating a danger for a person in particular circumstances. That is a point I will take away and consider because it had not immediately occurred to me in this context.
The reason why the Secretary of State should be given the wider power indicated in the present clauses is because there may be circumstances in which she would wish to remove from circulation forged or counterfeit documents. The idea that, having identified a passport as forged or counterfeit, she should return it to the person who had been using it seems a little unusual. It is in these circumstances that the wider power is sought.
Amendment 189 reduces the definition of “nationality document” to those which might establish a person’s identity, nationality or citizenship. The noble Lord, Lord Paddick, was quite right to notice that this provision does in fact follow on from Sections 44 and 45 of the United Kingdom Borders Act 2007, which contain powers for immigration officers and constables to search for nationality documents, but with a wider definition than the one suggested by Amendment 189. The reason for that is that there may be circumstances in which it is important to identify the place from which a person came, or indeed the place to which they were intending to go, in the context of whether or not they should be subject to deportation. The noble Lord also asked how or why a hotel receipt, travel guide and other such documents might be considered relevant. In that context they would be considered relevant because they might disclose the first place of safety that a person had arrived at within the European Union, for example, where the provisions of the Dublin agreement apply. It is therefore entirely appropriate that one should be able to search for such documents. They could provide a trail in circumstances where a person may have been seeking to make repeated asylum applications in a whole series of countries once they had arrived in a relatively safe environment.
Finally, Amendment 191 seeks to ensure that the Secretary of State may retain a relevant nationality document only if she is reasonable in her suspicion that the person to whom the document relates may be liable to removal from the United Kingdom and that the document may facilitate that removal. All Ministers must comply with public law principles when exercising public functions. This includes the requirement to act reasonably. If those delegated to use such powers do not do so, that may be challenged in the courts by means of judicial review. It is therefore implicit that the Secretary of State will act reasonably in exercising the power to retain nationality documents. I should also emphasise that the wording used in Clause 26(6) is consistent with that used in Section 17 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 regarding the retention of documents that come into the possession of the Secretary of State or an immigration officer in the course of exercising an immigration function. There is consistency in the proposed legislation.
In light of these points, I hope that the noble Lord will agree to withdraw his amendment.
My Lords, I think that some Members of your Lordships’ House are still struggling to work out how a search which is complete in bits sequentially is different from a strip search. However, what I want to say at this point is that I am not the only Member of your Lordships’ House, or indeed the only Member present today, to take part in the inquiry by the all-party groups to which the Minister referred. The noble Baroness, Lady Lister, was also an energetic member of the group.
The noble Baroness is of course quite right and I apologise to the noble Baroness, Lady Lister, for omitting her name from the reference. Of course it is acknowledged that the report was the precursor to Stephen Shaw’s helpful and incisive report on this matter. I am obliged for that.
My Lords, I am very grateful to the Minister for his explanation. As noble Lords will be aware, many amendments at Committee stage are probing amendments, so the explanations given by the Minister on this occasion have been very helpful.
On Amendment 185, I mentioned that the Secretary of State has to serve a notice on people—a formal notice of the intention to make a deportation order. The Minister pointed to that as being the meaning in the Bill. I asked the question: if that is the case why is that wording not on the face of the Bill rather than the rather vague wording that is currently there? Maybe the Minister can reflect on that between now and the next stage.
As far as the definition of nationality documents is concerned, I accept that under the Dublin agreement, as long as we are a member of the European Union, it is important to establish the first place of safety in terms of where the person should apply for asylum. I am reassured that Secretaries of State must at all times act reasonably. On that basis, I beg leave to withdraw the amendment.
Amendment 185 withdrawn.
Amendments 186 to 189 not moved.
Clause 25 agreed.
Clause 26: Seizure of nationality documents by detainee custody officers etc
Amendments 190 to 193 not moved.
Clause 26 agreed.
Clauses 27 and 28 agreed.
Schedule 5: Amendments to search warrant provisions
Before I call the noble Lord to move his Amendment 194, I should point out that if it were agreed it would not be possible to call government Amendment 195 in the name of the noble Lord, Lord Bates, as it would be pre-empted.
194: Schedule 5, page 94, line 13, leave out from “application” to end of line 17
My Lords, I move the amendment in my name and that of my noble friend Lady Hamwee. We also have Amendment 201 in this group.
Amendment 194 relates to Schedule 5 and amendments to the search warrant provisions in the Immigration Act 1971. We have already debated all premises warrants under Amendments 171, 172 and 173 in relation to the seizure of vehicles driven by someone illegally in this country. These provisions relate to search warrants issued to search for personnel records and nationality documents, and again allow any premises owned or occupied by the person specified in the warrant without having to specify the premises. The only thing I would say to that is that the explanation given under those previous amendments appeared to be simply to bring the Immigration Act into line with the Police and Criminal Evidence Act. Will the Minister say whether there are other specific reasons why all premises warrants would be valuable in the circumstances?
Amendment 201 is to probe the extension from one month to three of the time during which a search warrant issued under the Immigration Act 1971 can be executed. I accept that these provisions bring Immigration Act search warrants into line with those issued, predominantly to the police, under the Police and Criminal Evidence Act 1984, as amended by Section 15 of the Serious Organised Crime and Police Act 2005. However, is this necessary or safe in immigration cases?
The Immigration Law Practitioners’ Association points to evidence in the March 2014 report of the Independent Chief Inspector of Borders and Immigration in relation to the use of the power to enter business premises without a warrant by immigration officers. It found that in 59% of the cases examined, the required justification had not been made out. I appreciate that this provision is to extend powers given by warrant but the chief inspector’s report indicates the need for increased, not less scrutiny by the courts of the powers used by immigration officers. I beg to move.
My Lords, I am obliged to the noble Lord. As he indicated, Amendment 194 would remove the ability for immigration officers to seek an all premises warrant where they have a power to enter and search premises for material which is likely to be relevant evidence of an immigration offence under the 1971 Act. As the noble Lord anticipated, one purpose of this is to bring the provisions on such warrants into line with those for police warrants under PACE.
In addition, Amendment 201 is intended to do the same thing, but I should perhaps explain that when the immigration warrants were originally provided for, as running for one month, that was in parallel with the time that a police warrant would run under PACE. Subsequently, the warrant under the Police and Criminal Evidence Act was extended to a three-month period, so they fell out of sequence. The difficulty is that, from time to time, there are joint immigration officer and police operations which involve warrants being granted, and it is not convenient that the immigration warrant should be a period of one month while the police warrant is for a period of three months. The purpose of Amendment 201 in particular is simply to bring the time limit back into line with that which applies for police warrants.
Coming back to Amendment 194 and the use of all premises warrants, it is considered appropriate that an all premises warrant should be available to immigration officers, not only because that is consistent with the form of warrant available to police officers pursuing their own powers but because there are many circumstances in which an all premises warrant will be required for effective recovery of material pertaining to either illegal working or potential offences in respect of landlords and illegal renting. For example, where you have someone who has a number of restaurants employing persons who may be suspected of being illegal immigrants, you may have a warrant in respect of particular premises and then discover that all the records are actually kept elsewhere—in an office, a lock-up, or something of that kind. Therefore, it is appropriate that all the premises that are subject to the control of a particular employer should be available under the warrant, otherwise we would have a very long, drawn-out, step-by-step process of knocking down one domino, going from one warrant to the next one, and so on. It is in these circumstances that it is considered appropriate that an all premises warrant should be allowed in the case of immigration officers. I hope that that addresses the concerns or reservations expressed by reference to Amendments 194 and 201. In a sense, they bring immigration warrants into line with police warrants, but they were in line with police warrants before the amendment to the Police and Criminal Evidence Act. In addition, there are substantive reasons why it is practical and effective for immigration officers to have an all premises warrant facility available to them.
Government Amendments 195 to 200 and 202 to 209 may look rather complex, but have at their core a very simple proposition; that is, in Scotland it is not lawfully possible to secure an all premises warrant and a multiple entry warrant. Therefore, it is necessary to ensure that immigration officers operating in Scotland do so within the bounds of the Scottish criminal justice system.
I see the need for the amendments, but will the noble and learned Lord explain further how we have had to come to this stage in the Bill—I assume that it was drafted in the Home Office, checked and rechecked, and then went all through the Commons—and now we find that we have to table an amendment because these powers are not available in Scotland? I am surprised that we had to come to this stage to realise that point.
I shall go on to deal with government Amendment 214B, which is not concerned with warrants per se, but to clarify that the person who can undertake the role of custody review officer under Section 24A of the Criminal Law (Consolidation) (Scotland) Act 1995 includes a police inspector and is not limited to a person of equivalent rank. In Scotland, immigration officers currently have a power to detain pending arrest, and charge for immigration and nationality offences under Section 24 of the 1995 Act, which is similar to arresting a person pending charge in England, Wales and Northern Ireland. Under Section 24A of that Act a “custody review officer” may authorise an extension of the period for which a person can be held in detention under Section 24. This role has always been undertaken by a police inspector and the amendment is simply to ensure that there is no possible ambiguity in the provision that provides for this operational practice. Amendments 214C and 214D are minor and technical and simply remove redundant wording from the Bill.
I hope that these explanations will satisfy noble Lords and that they will feel able not to press their amendments, and I shall move the government amendments.
My Lords, I am grateful to the Minister for the explanations that he has given. I still have concerns relating to the Chief Inspector of Borders and Immigration’s report on immigration officers’ use of powers to enter premises without a warrant. In 59% of cases examined the required justification had not been made out. Giving immigration officers similar powers to those of police officers to enter any premises owned or occupied by the person named in the warrant and to do it over an extended period where it is not a joint operation with the police still causes me some concern.
I am not sure whether there is similar malpractice, so far as police officers are concerned, in the execution of PACE warrants, but the Chief Inspector of Borders and Immigration’s report seems to suggest that the exercise of powers by immigration officers is not perhaps as thorough as it is by police officers. My concerns remain, but at this stage I beg leave to withdraw the amendment.
Amendment 194 withdrawn.
Amendments 195 to 200
195: Schedule 5, page 94, line 14, after “(b)” insert “subject to subsection (2A),”
196: Schedule 5, page 94, line 29, after “(1C)” insert “Subject to subsection (2A),”
197: Schedule 5, page 94, line 35, at end insert—
“( ) After subsection (2) insert—
“(2A) A justice of the peace in Scotland may not issue—
(a) an all premises warrant under this section, or(b) a warrant under this section authorising multiple entries.””
198: Schedule 5, page 95, line 7, after “(b)” insert “subject to subsection (3C),”
199: Schedule 5, page 95, leave out lines 21 to 26 and insert—
“( ) After subsection (3) insert—
“(3A) Subject to subsection (3C), the warrant may authorise entry to and search of premises on more than one occasion if, on the application, the justice of the peace is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which the justice issues the warrant.
(3B) If it authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.
(3C) A justice of the peace in Scotland may not issue—
(a) an all premises warrant under this section, or(b) a warrant under this section authorising multiple entries.””
200: Schedule 5, page 96, line 35, leave out “28FB(1C)” and insert “28FB(3A)”
Amendments 195 to 200 agreed.
Amendment 201 not moved.
Amendments 202 to 209
202: Schedule 5, page 97, line 36, leave out “28FB(1C)” and insert “28FB(3A)”
203: Schedule 5, page 98, line 4, after “(b)” insert “subject to sub-paragraph (6BA),”
204: Schedule 5, page 98, line 17, after “(6AC)” insert “Subject to sub-paragraph (6BA),”
205: Schedule 5, page 98, line 24, at end insert—
“( ) After sub-paragraph (6B) insert—
“(6BA) A justice of the peace in Scotland may not issue—(a) an all premises warrant under this paragraph, or(b) a warrant under this paragraph authorising multiple entries.””
206: Schedule 5, page 98, line 26, leave out “(6AC)” and insert “(6BA)”
207: Schedule 5, page 98, line 38, after “(b)” insert “subject to subsection (3A),”
208: Schedule 5, page 99, line 6, after “(2C)” insert “Subject to subsection (3A),”
209: Schedule 5, page 99, line 12, at end insert—
“( ) After subsection (3) insert—
“(3A) A justice of the peace in Scotland may not issue—
(a) an all premises warrant under this section, or(b) a warrant under this section authorising multiple entries.””
Amendments 202 to 209 agreed.
Schedule 5, as amended, agreed.
Clause 29: Supply of information to Secretary of State
210: Clause 29, page 36, line 2, after second “State” insert “reasonably”
My Lords, in moving Amendment 210, in my name and that of my noble friend Lady Hamwee, I shall speak to Amendments 211 to 213 and Amendment 215.
Amendment 210 suggests the addition of “reasonably” in the power of the Home Secretary to direct public agencies to supply documents, so that she must “reasonably suspect”, rather than simply “suspect”, that someone may be liable to deportation under new Section 20A(2). Amendment 211 suggests a similar change to the power of the Secretary of State to retain such a document. Amendment 212 requires the Secretary of State to return a nationality document that is no longer required to the person who supplied it, as previously debated on Amendment 188.
Amendment 213 again queries extending the definition of “nationality document” from “a document showing” the individual’s “identity, nationality or citizenship”, to one that “might establish” the individual’s “identity, nationality or citizenship”, as previously debated on Amendment 189. I do not think that the Minister addressed in that debate the broadening of the definition from a document “showing” the individual’s identity to one that “might establish” their identity. That is a considerable broadening of the definition.
Amendment 215 would insert a new clause after Clause 30 relating to complaints and the investigation of serious concerns relating to the conduct of immigration officers. It suggests that a commission be established to,
“make recommendations about the establishment of an independent oversight body”,
for immigration officers and other authorised officers, in so far as they exercise powers available to immigration officers. My understanding is that the Independent Police Complaints Commission currently investigates complaints against immigration officers, but only relating to powers similar to those exercised by the police. There is not one overall coherent complaints investigation or recording system. Would the Minister confirm this? Even if the IPCC has a role, we believe that such arrangements may be inadequate and should at least be reviewed to ensure that they are effective.
The Independent Police Complaints Commission is fighting an uphill struggle to win the trust and confidence of the public in general, and the black and minority ethnic communities in particular. Those most likely to come into contact with immigration officers are those seeking asylum and others in a very vulnerable position. The likelihood that such people will have a good understanding overall of their rights and the standard of conduct expected of immigration officers and other authorised officers is far less than among those born in this country or who have lived here for some time. Indeed, the way they may have been treated by officials in their own country may well be far below the standard expected of immigration officers and other authorised officers in the UK.
In all the circumstances, it seems that there is at least a question that needs to be examined as to whether the existing arrangements by which long-standing residents of the UK—well-versed in their rights and the conduct expected of officials—can have their concerns about the police and immigration officers investigated are adequate for asylum seekers and those newly arrived in the United Kingdom. I beg to move.
My Lords, this group of amendments concerns the supply of information to the Secretary of State and the establishment of a commission for standards for immigration officers. I was somewhat surprised that without Amendment 212 or something similar—it may need refining—it would be left to the Secretary of State to dispose of nationality documents as they think appropriate, without any further clarifications. It would be useful if the noble and learned Lord, Lord Keen, would confirm that there is no question that these documents will not be returned to the person when they are no longer needed by the Secretary of State or their officials. I understand that we would not want to return the documents to someone who had no right to have them, but if they have been obtained lawfully they should go back to them.
Amendment 215 requires the Secretary of State to establish a commission to make recommendations for an independent oversight board to set standards for immigration officers. Given the sort of powers that immigration officers exercise as public officials, it is right that we should have in place a proper process to look at complaints about their conduct and standards. It would be helpful if the noble and learned Lord were to set out what happens at present. Is this safeguard in place with regard to certain things but not to others, as the noble Lord, Lord Paddick, indicated? Does the noble and learned Lord think that the present system is adequate in all respects?
I am obliged to the noble Lords, Lord Paddick and Lord Kennedy of Southwark, for their observations on these provisions.
Amendments 210 and 211 are essentially the same as those previously discussed in relation to Amendment 191 in seeking to ensure that the Secretary of State may direct a person to supply a relevant nationality document only—and may retain that document only—if she acts reasonably in her suspicion that the person to whom the document relates may be liable to removal from the United Kingdom, and that the document may facilitate that removal.
Amendment 213 is the same as Amendment 189, put forward to Clause 25, in seeking to limit the definition of “nationality document”. The noble Lord, Lord Paddick, observed that I had not addressed the distinction between the term “showing” and the term “might establish”. It respectfully appears to me that it is the distinction between that which is explicit on the face of a document and that which may be inferred from its terms. The terms of a document may not on their face show a particular position but an analysis of the terms of that document would lead to an implication about the source of the document, the person using it or the background of that person. So I suggest that it is the distinction between a document being explicit on its face, and giving rise to what might be termed a circumstantial evidential route to a determination with regard to a person’s nationality or route of travel.
Amendment 212 differs slightly from those previous amendments to Clauses 25 and 26 on the Secretary of State’s power to dispose of documents which she no longer wishes to retain in that it requires the document to be returned to the person who supplied it. However, to answer the question raised by the noble Lord, Lord Kennedy, we again face a difficulty when the Secretary of State is provided with documents which are clearly forged or counterfeit. The desire is to ensure that these should not remain in circulation and therefore be returned to someone who would put them back into circulation or use them again. I hope that that satisfies the noble Lord. It should be acknowledged that some of the bodies supplying documents will not be in a position to establish whether they are forged or fraudulently obtained—but, generally speaking, Immigration Enforcement personnel are able to determine that from the analysis of documents.
As we have discussed, Clause 29 contains powers that enable the Secretary of State to require public authorities, subject to certain conditions, to supply nationality documents to the Home Office for immigration purposes. Schedule 6 lists those public authorities to which the new duty applies. Government Amendment 214A is quite straightforward in terms of its effect in that it adds education bodies to that list: these are schools and further and higher education providers across the United Kingdom. This power will be exercisable only where the Secretary of State suspects that a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and that the document may facilitate the removal.
I wish to be absolutely clear that this is not a power to require education bodies or, indeed, any of those listed, to collect data or information on behalf of the Secretary of State, or to seize documents from people, as it applies only where the Secretary of State has reasonable grounds for believing that a nationality document is already lawfully in the possession of the relevant body—that is to say, that they hold the document for the purposes of their own functions.
On the new clause proposed in Amendment 215, I fully understand the value of having standards for the actions of immigration officers, the handling of complaints against them and the investigation of serious concerns about their conduct. It is vital that the public are able to make complaints where they feel they have been mistreated by immigration officers, and, of course, it is right that serious incidents are subject to independent scrutiny. Indeed, it is precisely because of our commitment to protecting the public that we have ensured that adequate oversight mechanisms are in place for all areas of Great Britain and Northern Ireland.
In England and Wales, the Independent Police Complaints Commission provides oversight of serious complaints, matters of conduct and incidents involving immigration officers exercising enforcement powers. The Police Ombudsman for Northern Ireland’s remit mirrors that of the IPCC, enabling oversight of serious incidents, complaints and conduct matters in Northern Ireland where immigration enforcement powers are exercised.
In Scotland, the Crown Office and Procurator Fiscal Service has the remit to investigate deaths and allegations of criminality in respect of immigration matters. In addition, all complaints about immigration officers who are exercising enforcement powers in Scotland may be investigated by the Police Investigations and Review Commissioner.
Furthermore, the United Kingdom’s border and immigration functions as a whole are subject to the independent scrutiny of the Chief Inspector of Borders and Immigration, who was cited a little earlier by the noble Lord, Lord Paddick. Detention staff are also subject to a number of oversight and monitoring bodies. Her Majesty’s Inspector of Prisons has a statutory responsibility to report on the conditions and treatment in not just prisons but all places of immigration detention in the United Kingdom; the Parliamentary and Health Ombudsman can conduct unannounced inspections; and detainees may ask for complaints to be reviewed by the independent Prisons and Probation Ombudsman.
The role of the Independent Chief Inspector of Borders and Immigration was created by Section 48 of the UK Borders Act 2007. It has been in place for a number of years and is believed to work effectively and efficiently. Guidance on how complaints are managed and resolved by UK Visas and Immigration, Immigration Enforcement and Border Force is publicly available on the Government’s website. This includes information about the complaints management structure, types of complaints handled, dealing with complaints, service complaints, minor misconduct complaints, serious misconduct complaints, special circumstances, complaints from children and complaints for the purposes of financial redress. Complaints may be raised at a local level to a senior officer within the relevant immigration compliance and engagement team which conducted the search. Complaints about serious misconduct are allocated to, and investigated by, the immigration Professional Standards Unit.
So there is a wide-ranging series of bodies available to ensure that complaints from the public are properly handled and effectively disposed of. I again point to the observations made a little earlier by the noble Lord, Lord Paddick, about the use, or alleged misuse, of warrants in circumstances where they have been employed by immigration officers. That points up the fact that there is a very effective monitoring system in place. In these circumstances, I urge noble Lords to accept government Amendments 214A and 214B and invite the noble Lord, Lord Paddick, to withdraw his amendment.
The noble and learned Lord has gone through the various bodies to which we can complain. However, there are a lot of bodies to which one can complain about all sorts of different things. Perhaps his officials should reflect that there is a case for bringing all these things together because having all these bodies may not be the best way to run things. As regards the nationality documents, I entirely accept the point about fraudulent documents but if a document is genuine I assume that it would be returned to the relevant person.
On the last point, the Secretary of State will act reasonably, and is lawfully obliged to act reasonably, so there cannot be any real difficulty about that. On the noble Lord’s first point, our complaints procedure may be so comprehensive that it is difficult for him to get his arms round it. However, I would be content to write to outline that procedure in more detail if he felt that would assist.
My Lords, I am very grateful to the Minister for the explanations that he has given. As he said, many of them were similar to points that we had already debated. I am very grateful for his explanation about the broadening of the definition, which he did not cover on the previous amendments. I shall read with interest, and very carefully, what he has said on that issue.
On Amendment 215, I echo what the noble Lord has just said about the many and different avenues of complaint. How can somebody who has a genuine grievance against the Immigration Service possibly know which body to turn to among all that complexity? The Minister did not address the concerns that I expressed on behalf of many communities about their lack of trust and confidence in the Independent Police Complaints Commission, and the concern that those who are likely to come into contact with the Immigration Service are likely to be more vulnerable and less aware of their rights than those who do make complaints to the Independent Police Complaints Commission.
The Minister made reference to the Independent Chief Inspector of Borders and Immigration. I have to confess to not knowing exactly what the chief inspector’s remit is, but if it is similar to that of Her Majesty’s Chief Inspector of Constabulary, it is purely a monitoring function—an investigation and review function—rather than a complaint-examining function. Indeed, if any complaint were made to the Chief Inspector of Borders and Immigration about the conduct of the immigration office, I would expect him to refer it to—
I should have added that Independent Police Complaints Commission’s remit was extended to investigating complaints and serious conduct matters relating to the exercise of immigration enforcement powers by Section 41 of the Police and Justice Act 2006 and the UK Border Agency (Complaints and Misconduct) Regulations 2010. I had omitted to mention that.
I am very grateful to the Minister for that.
As I was saying, I expect that we would find in practice that complaints made to the Independent Chief Inspector of Borders and Immigration would just be passed on to the many and various organisations and bodies that the Minister highlighted.
I am therefore still unconvinced that there is no need to review whether the current procedures for making complaints against immigration officers are user-friendly to people who are going to find it very difficult to navigate all these different systems. But in the meantime, I beg leave to withdraw my amendment.
Amendment 210 withdrawn.
Amendments 211 to 213 not moved.
Clause 29 agreed.
Schedule 6: Duty to supply nationality documents to Secretary of State: persons to whom duty applies
Amendments 214 and 214A
214: Schedule 6, page 100, line 9, leave out “Licensing” and insert “and Labour Abuse”
214A: Schedule 6, page 100, line 23, at end insert—
“Education bodiesThe proprietor of a school or 16 to 19 Academy within the meaning of the Education Act 1996 (see sections 4 and 579(1) of that Act).
The governing body of an institution within the further education sector within the meaning of the Further and Higher Education Act 1992 (see sections 90 and 91 of that Act).
The governing body of a qualifying institution within the meaning of Part 2 of the Higher Education Act 2004 (see sections 11 and 21 of that Act).
The proprietor or governing body of a school within the meaning of the Education (Scotland) Act 1980 (see section 135(1) of that Act).
The proprietor or governing body of a post-16 education body within the meaning of the Further and Higher Education (Scotland) Act 2005 (see section 35 of that Act).
The proprietor of a school within the meaning of the Education and Libraries (Northern Ireland) Order 1986 (SI 1986/594 (NI 3)) (see Article 2(2) of that Order).
The governing body of an institution of further education within the meaning of the Further Education (Northern Ireland) Order 1997 (SI 1997/1772 (NI 15)) (see Article 2(2) of that Order).
The governing body of a higher education institution as defined by Article 30(3) of the Education and Libraries (Northern Ireland) Order 1993 (SI 1993/2810 (NI 12)).”
Amendments 214 and 214A agreed.
Schedule 6, as amended, agreed.
Clause 30: Detention etc. by immigration officers in Scotland
Amendments 214B to 214D
214B: Clause 30, page 37, line 27, at end insert—
“( ) The Criminal Law (Consolidation) (Scotland) Act 1995 is amended as follows.
( ) In section 24A (extension of period of detention under section 24) for subsection (7) insert—
“(7) In this section and section 24B, “custody review officer” means—
(a) an officer who—(i) is of a rank at least equivalent to that of police inspector, and(ii) has not been involved in the investigation in connection with which the person is detained, or(b) in relation to the detention of a person under section 24 by an immigration officer, a constable—(i) of the rank of inspector or above, and(ii) who has not been involved in the investigation in connection with which the person is detained.”( ) In section 26A(2) (power of arrest of authorised immigration officers) omit “or immigration enforcement offence”.”
214C: Clause 30, page 37, line 28, leave out “of the Criminal Law (Consolidation) (Scotland) Act 1995”
214D: Clause 30, page 37, line 37, leave out subsection (3) and insert—
“( ) Omit the definition of “immigration enforcement offence”.”
Amendments 214B to 214D agreed.
Clause 30, as amended, agreed.
214E: After Clause 30, insert the following new Clause—
“Powers to take fingerprints etc. from dependants
(1) Section 141 of the Immigration and Asylum Act 1999 (powers to take fingerprints from certain persons and their dependants) is amended as follows.
(2) In subsection (7) for paragraph (f) substitute—
“(f) any person (“F”) who is—(i) a member of the family of a person within any of paragraphs (a), (b) or (ca) to (e), or(ii) a dependant of a person within paragraph (c)(i).”(3) In subsection (8)(f) after “person” insert “of whose family he is a member or”.
(4) In subsection (9)(f) after “person” insert “of whose family he is a member or”.
(5) After subsection (13) insert—
“(13A) For the purposes of subsection (7)(f)(i), a person is a member of the family of another person (“P”) if—
(a) the person is—(i) P’s partner,(ii) P’s child, or a child living in the same household as P in circumstances where P has care of the child,(iii) in a case where P is a child, P’s parent, or(iv) an adult dependant relative of P, and(b) the person does not have a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom. (13B) In subsection (13A) “child” means a person who is under the age of 18.”
(6) In subsection (14) for “(7)(f)” substitute “(7)(f)(ii)”.”
(7) Section 142 of the Immigration and Asylum Act 1999 (attendance for fingerprinting) is amended as follows.
(8) In subsection (2) for “a dependant of” substitute “a member of the family of, or a dependant of,”.
(9) In subsection (2A) for “a dependant of” substitute “a member of the family of”.
(10) Until the commencement of the repeal of section 143 of the Immigration and Asylum Act 1999 (destruction of fingerprints) by paragraph 17(2) of Schedule 9 to the Immigration Act 2014, subsection (9) of that section has effect as if after “the person” there were inserted “of whose family he is a member or”.
(11) In section 144A(2) (application of regulations about use and retention of fingerprints etc to dependants) after “the person” insert “of whose family F is a member or”.”
Amendment 214E agreed.
Amendment 215 not moved.
Clause 31 agreed.
Clause 32: Immigration bail
215A: Clause 32, page 38, line 13, leave out “bail” and insert “temporary admission”
My Lords, my noble friend Lord Paddick and I have a number of amendments in this group, and we have added our names to other amendments in the names of the noble Lords, Lord Rosser and Lord Kennedy.
With this amendment we come to another big issue, starting with what may appear to be a triviality, although I do not regard it as such. The clause, of course, is about bail. The law as it currently stands is that if a person cannot lawfully be detained under immigration powers—for instance, because there is no prospect of removing her or him within a reasonable period, or at all, or because it is contrary to policy to detain because the person is a victim of torture or trafficking or is seriously mentally ill—that person must be released from immigration detention and cannot be subject to bail because the powers to grant bail and to impose bail conditions can apply only if there is a power lawfully to detain. Bail is not liberty, either conceptually or practically, because of conditions which may be applied.
The Master of the Rolls, Lord Dyson—I appreciate he may not be the flavour of the month in the Government’s eyes, following evidence to the Justice Committee—recently referred to the long-established common law position that,
“The power to grant bail presupposes the existence of (and the ability to exercise) the power to detain lawfully. … It would be extraordinary if Parliament had intended to confer the power to grant bail where a person has been unlawfully detained or could not lawfully be detained”.
But we have Clause 32 and Schedule 7, which say that a person may be granted bail,
“even if the person can no longer be detained”,
which left my head spinning—but not spinning so much that I do not think that the language is important.
In this debate, we will all refer to “bail” because that is the term used in the Bill, but Amendments 215A and 216A would replace it with the term “temporary admission”. Language should be accurate and should not imply what it is not. We are not wedded to the term “temporary admission”. It is used in at least three immigration statutes which I have come across, and indeed there is a government amendment using the term. But if the Government wish to propose an alternative which does not suggest that detention is the norm, and that is accurate and does not carry connotations—in particular, that does not suggest that persons seeking asylum are criminals—I would of course be happy to entertain it.
I am spending a little time on this issue because it is not just me and the other noble Lords concerned who are nodding. Article 31 of the 1951 refugee convention expressly protects those who claim asylum from being treated as criminals, and I am advised that the UNHCR and other international guidance recognises that detention must always be the exception—a point I would like to emphasise.
In the Public Bill Committee in the Commons, the Minister said that the language was chosen deliberately because it is commonly understood by practitioners, but the point, surely, is how it is understood by others. Anything that risks designating an asylum seeker or someone who is seeking to register his status as an asylum seeker, who is not illegal, as a criminal—instead of, as he often is, as a victim—should be avoided.
Moving on to the other amendments, the language is not new but the restrictive provisions of the Bill are. We have added our names to Amendment 217, tabled by the noble Lord, Lord Rosser, because it gives a role to the judiciary, not the Executive. That is probably the most important issue in this part of the Bill. It highlights the importance of regular and frequent reviews of detention in every case. It is implicit in that, certainly as I read it, that detention should not be automatic nor roll on automatically.
We have also added our names to Labour’s Amendment 220 and to Amendment 221, tabled by the noble and learned Lord, Lord Mackay of Clashfern. It was originally shown as being in his name and that of my noble friend Lord Paddick. I respect the noble and learned Lord’s views and I wondered why my noble friend had done a little exercise of his own. It was only on Thursday that I discovered that he had not, when the noble Lord, Lord Pannick, called me and asked me to speak, since neither he nor the noble and learned Lords, Lord Mackay and Lord Judge, could be here this evening—so the unlearned gets to go first on this. I predict the weight of learning might come to bear at the next stage if the Government do not concede on this point.
Paragraph 2 of the schedule deals with conditions of bail and the sub-paragraphs allow the Secretary of State to override the decisions of the tribunal about residence conditions and electronic monitoring. The organisation Justice—at this point one might say Justice without adding “the organisation”, I think—describes the power of the Secretary of State, who will have requested the First-tier Tribunal to impose conditions, which the First-tier Tribunal will have considered and refused, then to overturn the decision as,
“a direct affront to the rule of law”.
The Constitution Committee asks whether it is compatible with the rule of law for the Executive to be able to override the decision of an independent judicial body, and quotes a number of comments from the noble and learned Lord, Lord Neuberger, in the recent Evans v Attorney-General case regarding freedom of information, when he said that,
“it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive”.
The Constitution Committee also says in its recent report:
“It is also worth noting that, unlike the matter at stake in the Evans case, electronic-monitoring and residence conditions engage considerations of individual liberty—something that arguably renders the prospect of executive intervention more constitutionally dubious”.
The Constitution Committee goes on to express concern about the provisions being,
“in tension with the principles of the rule of law”,
“The usual process, should a Minister have concerns about a judicial decision, would be to appeal against it. The House may wish to ask the Government”—
which is what I am doing now—
“to clarify how their proposals comply with the rule of law. The House may also wish to ask the Government why, if the intention is to ensure the use of certain bail conditions for particular offenders (such as satellite monitoring for foreign nationals), they do not simply propose new criteria for the First-tier Tribunal to take into account when setting bail conditions”.
In the Commons Public Bill Committee, the Minister said that the powers would be used “very rarely”. That hardly requires a response other than, perhaps, as I commented earlier, if one is not afraid of something, why not provide for it?
Our Amendments 221A and 221D address matters to which the Secretary of State or the First-tier Tribunal must have regard when determining the grant of bail or bail conditions. One of these is that the person might cause a danger to public health. I would be grateful if the Minister could explain why incarceration would be applied in this case. For instance, would treatment not be more appropriate? If someone is not in the group of people who are seeking asylum and who might be subject to immigration bail—you or me, I might say—but causes a danger to public health, they would not be incarcerated. Other public health provisions might apply but they would not be subject to bail conditions.
The other matter I wish to raise this evening is,
“whether the person’s detention is necessary in that person’s interests”.
My concern is whether this could be used in the case of mental illness and whether it might be open to abuse. It is a very wide provision and there are a number of cases in which the courts have found that the use of immigration detention to protect a person from himself is unlawful. In view of the time I am taking, I will not quote them now, but I have them to hand.
Amendments 221C and 221D are about electronic monitoring and related arrangements, which may require the person to communicate,
“in a specified manner and at specified times”.
Amendment 221C would insert reasonableness. This comes from evidence that a number of your Lordships will have heard during the period when control orders were being applied that controlees were often required to report at times and in places which were very unreasonable and precluded them from normal activities. It seemed to me that, in another context requiring reporting, reasonableness would be appropriate.
The arrangements in the Bill would allow the exercise of functions by persons other than the Secretary of State or First-tier Tribunal, and my Amendment 221D would insert “on behalf of” those. I assume that is what was meant, or has outsourcing crept even further? Certainly, if it has, whoever exercises the functions should be subject to the supervision and control of the Secretary of State or tribunal in this context. I beg to move.
My Lords, I hope it may be for the convenience of the Committee if I observe that, with regard to Amendments 220, 222 and 223, which raise the question of bail conditions and the Secretary of State’s proposed power to address conditions already set by the tribunal, I recognise the important constitutional issues that the noble Baroness, Lady Hamwee, has raised. Given the proposed amendments from all sides of the Committee and the concerns expressed by the Constitution Committee and the Joint Committee on Human Rights with regard to this matter, the Government will think again about this. We anticipate bringing forward before Report a suitable amendment to Schedule 7 with respect to bail conditions. I hope that this assists the Committee.
Very briefly, I support Amendment 215A because I absolutely agree that this is not a trivial matter. I am not an expert on these issues but a social scientist who knows the importance of language. Some years ago, it was quite common among the media and politicians to talk about bogus asylum seekers. That did immense harm, so I absolutely agree that language which has connotations of criminality when applied to asylum seekers is totally inappropriate and could be very harmful.
My Lords, I intervene briefly to support the point that the noble Baroness, Lady Lister, and previously the noble Baroness, Lady Hamwee, have made about the importance of the language we use. When the Minister comes to consider this issue again between now and Report, I wonder whether he will look at the nomenclature that we use here and whether “immigration bail”, with its connotations of criminality, really is the right language for us to use at all. In particular, people seeking asylum are not criminals when one considers that they will include refugees, children, survivors of torture and trafficked people. It is quite wrong to imply that they are necessarily people who are therefore trying to break our laws.
I hope that the Minister will also return specifically to the point made by the noble Baroness, Lady Hamwee, about our duties under international law, especially Article 31 of the 1951 refugee convention, which expressly protects those who claim asylum from being treated as criminals. The UNHCR and other international guidance recognises that the detention of persons seeking asylum must always be the exception, so let us at least start from the basis that those seeking asylum will be among people who are genuine. They will be trying to escape from the most appalling situations in their own countries and are not criminals. We therefore must have some regard for their well-being and status.
I would like to raise one other brief issue in relation to Schedule 7, which is not covered by these amendments but on which I hope that the Minister will be able to provide some clarification. It appears that the introduction of a restriction on studies as a condition either of temporary admission or bail for those subject to immigration control is a new provision. I would be grateful if the Minister would spell that out. No reason for the restriction is given in the Explanatory Notes to the Bill, so I wonder whether we could take this opportunity in Committee to find out what that reason is. Breach of a condition of immigration bail is, as we have just discovered in these exchanges, a criminal offence and therefore has serious consequences. Those lawfully present and in touch with the authorities should not be restricted from undertaking studies. All those subject to immigration control will be on immigration bail, not just persons released from detention. The condition could potentially be applied to children and young people, preventing them accessing further education and even attending their school. I am sure that that is not what the Government had in mind but I hope they will clarify what the consequences of this provision might be.
My Lords, for a long time I have been concerned about immigration detention and I have therefore visited two, if not three, of the detention centres. It is very important for us to take full note of the fact that the Shaw review was not available to the other place when considering the Bill. I emphasise that that review said that the length of detention should be reduced, whether by better screening, more effective reviews or a formal time limit. We also have to recall that this country makes more use of immigration detention than other, comparable western European countries, almost all of which have time limits for it. I also emphasise the extreme vulnerability of some of the people who get detained. I notice that my noble friend Lord Ramsbotham will speak to a specific amendment on this point later.
However, to reinforce that approach, I shall quote from a case detailed by the Detention Forum, which is a large consortium of voluntary organisations. A man whom the consortium code-named Jacques was, it said,
“detained for the purposes of removal to Denmark where he had previously claimed asylum. He had a traumatic history as a child soldier and was severely”,
affected by post-traumatic stress disorder. The forum said:
“Despite being visibly unwell, and despite anecdotal evidence of staff feeling unable to manage the situation, he was detained for over two months before being removed to Denmark. During detention, Jacques suffered periodic blackouts and dizziness, which at least once led to injury. He was unable to communicate with staff or other detainees and exhibited erratic behaviour, at times running naked out of his room or speaking what was understood by staff as gibberish. In response, Jacques was regularly placed in isolation, which appeared to exacerbate his confusion and paranoia. The local visitors’ group made efforts to raise concerns with the detention centre staff, but got no response from the healthcare centre. Attempts to support Jacques were made by a fellow detainee who spoke the same language as well as a solicitor who was willing to represent him for a temporary admission application and for unlawful detention. Jacques’ paranoia made him unwilling to enter the room with the solicitor, and so it was impossible to represent him. Communication was so difficult that his fellow detainee was unable to do much to support him either”.
That surely is the kind of situation which we should do our level best to avoid.
My Lords, my noble friends have been tempted to move into the next group of amendments. I can see why, as bail and detention are so inextricably intertwined, but I will try to resist that temptation. I would say that the question of bail has been raised on successive immigration Bills, and many of us remember that historic repeal by Labour of the clause that would have brought in automatic bail. This issue has a