The Earl of Listowel (CB)
My Lords, I will briefly raise a concern that came to my attention when I was a member of Sub-Committee F of the European Union Committee some time ago. I heard from employers’ organisations in this country that they were very keen to have loose immigration policies. That was very understandable from their point of view. They would recruit migrants who were well educated and motivated and they might have felt that many of our population were not so motivated or well educated. I was concerned that there were not incentives for employers to train up, support and develop young people in this country, that those young people would just go on to benefits, and that a vicious circle would go on through the generations. I was therefore very pleased to hear the Prime Minister David Cameron say recently that his intention is to improve the education system—he feels that that is going a long way in the right direction—and to reform the welfare system so that more young people go into employment and there is not so much pressure on employers to recruit from abroad. It is tragic that so many young people waste their lives. I wanted to voice my happiness at hearing the Prime Minister express that commitment to our young people.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I thank the noble Earl for ending this part of the debate by giving me a chance to say that he is quite right to pick up on the Prime Minister’s commitment in this area. What is interesting about the speeches made by the noble Lord, Lord Rosser, and by my noble friends is that they, too, echo the sentiment on this issue within government at this time. As I reply to the debate, noble Lords will pick up the messages and echoes of that. Of course, some of what we have been talking about lies outside the provisions in the Bill. The noble Lord, Lord Rosser, would like to include certain provisions in it, but I hope I can persuade the Committee that what noble Lords seek might be best done through a comprehensive package of measures based on the work that is now going on.
Clauses 39 and 40 amend the existing legislation governing the sequence for objecting to and appealing against a civil penalty notice for employing illegal workers and how we may recover penalties where an employer fails to pay. My noble friend Lord Avebury was particularly keen to know how that would work. I will come on to that. Currently, an employer can exercise their right to object to a civil penalty and appeal simultaneously, consecutively or alternatively. Frankly, this is wasteful and unnecessarily expensive for all. Clause 39 simply requires an employer to raise an objection before a formal appeal. The objection process provides a fast and efficient means of reviewing penalties and can negate the need for an appeal to the court altogether. I am sure that noble Lords will see that as desirable.
Lord Rosser
My Lords, I thank the Minister for his reply and all other noble Lords who contributed to this debate. The Minister said that the type of sentiments I expressed in my contribution were not dissimilar to those of the Government. However, I still am not sure whether the Minister is anticipating, in any of the areas that I have covered, bringing anything back to this House before Report. He made a comment about formulating proposals shortly but I am not clear whether that meant in time for Report. It would be extremely helpful if he could clarify that point.
Lord Taylor of Holbeach
My Lords, to give matters proper consideration, it is unlikely that we will return to these matters on Report. However, legislation, including the slavery Bill, is likely to come before this House. There will be other opportunities where a change may occur that does not require primary legislation and which can be effected through secondary legislation. I have indicated that a work programme is going on in this area and I hope that noble Lords will accept that our objectives very much reflect the thinking that lies behind the amendments in the name of the noble Lord, Lord Rosser.
Lord Rosser
I thank the Minister for that response, although I am a bit disappointed that, apparently, nothing will come forward before Report. I am sure one point he would accept is that the world can be full of good intentions and measures that intend to be taken, but it is also about, first, whether those intentions are taken and in what form that counts and, secondly, if they are taken in an appropriate form, the extent to which they are enforced. That is one of the issues I raised in relation to the minimum wage and how effectively it was being enforced. Obviously, that issue no doubt will be discussed on other occasions.
I am not sure whether I should be pleased with the comments that the Minister made about the Gangmasters Licensing Authority on the basis that more areas of work might be coming under the terms of that authority or whether I should be concerned because perhaps a look is being taken at the powers and scope of that authority, and they might be diminished in the future. Perhaps he will give me an assurance that no one is looking in any way at diminishing the power and scope of the Gangmasters Licensing Authority in the light, I thought, of his reference to a triennial review.
Lord Taylor of Holbeach
I am happy to respond immediately to that request. As noble Lords will know, the triennial review looks at all public bodies and their effectiveness. The truth of the matter is that the Gangmasters Licensing Authority, despite comments that have been made in debate, has been remarkably effective at regulating a difficult area of exploitation. There are other areas which the noble Lord mentioned and we are looking to extend the role of the GLA or a body which can perform that function, without prejudging the issue, in such a way as to make sure that we cover more ground and not less. The powers will be adequate to ensure that the same sort of regulation that occurs in the agricultural sector occurs elsewhere where exploitation takes place.
Lord Rosser
I thank the Minister for that response. I will leave the matter in that context. Obviously, I will want to read carefully what the Minister has said in response and to look at the extent to which the specific concerns that we have raised in the amendments in this group are or are not being addressed by the work that the Minister has said that the Government are already undertaking. I know he agrees with me that, if we are to have a reasoned debate on immigration in this country, we need to address the concerns to which immigration can contribute, although not cause exclusively or solely, in housing and employment through exploitation of migrants by people who are not entirely scrupulous in their intentions and motives. Our doubts at the present time concern the extent to which this Bill, and the measures contained in it, will promote such a reasoned debate, certainly in employment and housing, hence the amendments in this group.
I thank the Minister for his reply and I will read carefully what he has said. I thank all other noble Lords who have contributed to this debate.
Baroness Hamwee
My Lords, this afternoon’s speeches have reassured me that I was not misreading the clause when I ended up, time after time, in confusion—not just as to the principle, but as to the point. I would sum up my confusion with three questions to myself. If someone is stateless, it seems he may be allowed to remain in the country, so how is the threat diminished? Indeed, is not any threat increased because of the reaction of the individual and his community against the state’s action? Secondly, what happens to his dependants—are they not likely to become more of a burden on the state? Thirdly, is this one of those occasions when neither Parliament, concerned with the principle, nor the individual, at the sharp end of the practice, is able to challenge the decision—one of those occasions of “If you knew what I know”? We are not thought police, and I was reassured when I read in the clause a reference to a person having “conducted” him or herself in a prejudicial manner—but of course we cannot know about conduct any more than thought.
Like the noble Baroness, I read the report in the Independent today and I thought it a clear example of the impact on someone left stranded. I think he was served with the decision when he was transferring between planes: he was part way—as he would have said—home, and had to return to, I think I am right in saying, Waziristan. However, he was stranded: separated from his community and perhaps family—I do not recall—in the UK, but regarded almost as an outlaw, and, as he put it, in danger from those in Pakistan and Waziristan who regarded him with considerable suspicion. It is a very disturbing story.
Lord Taylor of Holbeach
My Lords, this has been a very thorough debate on a clause which, as the noble Lord said, we owe it to discuss thoroughly.
I start by adding some further perspective to the debate on the deprivation of citizenship. The measures in the Bill to deprive someone of citizenship can be used only against someone who has chosen, as an adult—not as a child—to naturalise as a British citizen. When choosing to seek British nationality they will have taken an oath, or sworn allegiance, to Her Majesty, and pledged their loyalty to this country. Despite this—
Baroness Kennedy of The Shaws
I know it is early in the Minister’s answer, but can I be clear: is he saying that this will not apply to persons who were naturalised when they were under 18?
Lord Taylor of Holbeach
It will not apply to people under 18. Such people are not able to apply for naturalisation; they can gain British citizenship through registration—in effect, through their parents’ presence in this country. Rather, this amendment to the existing law applies to people who have sought naturalisation. As I say, they pledge their loyalty to this country. Despite this, a small number of these individuals have chosen by their conduct to betray the values and laws of their adopted country. Therefore, in my view, it is only right that the Home Secretary can, in seeking to protect the security of the UK, deprive them of that adopted citizenship, and expect them to reacquire, or to acquire, their former citizenship of another country.
I remind the Committee that the Government already have the powers to deprive citizenship. Such powers have been operated by successive Governments. Listening to the debate at certain times, I got the feeling that the argument was that no Government should have the power to deprive citizenship. However, the clear argument in these amendments is not on that case but on whether the exceptional case of statelessness should be an exclusion from the Government’s powers in this pre-existing legislation.
These powers have their origins in legislation dating back to the First World War, when provision was made for the revocation of citizenship if a naturalised person was suspected of treasonable activities. Section 40 of the British Nationality Act 1981, which has been cited, allows the Home Secretary to deprive British citizenship in two scenarios. The noble Baroness, Lady Smith of Basildon, mentioned them. The first is where the person acquired it using fraud, false representations or concealment of a material fact, which essentially means that they used deception to obtain citizenship for which they were not eligible. In these cases a person may be left stateless. Are noble Lords arguing that they should not be deprived of citizenship in such cases?
The second scenario is where the Home Secretary,
“is satisfied that deprivation is conducive to the public good”,
and that the person would not be left stateless as a result. It is the second of these powers that Clause 60 seeks to amend by returning our position on deprivation action to that which existed as recently as 2003. These powers are provided for and permitted under international law by virtue of the UK’s declaration to the 1961 UN Convention on the Reduction of Statelessness and the domestic legislation that existed at that time. These powers are provided for and permitted under international law.
Baroness Lister of Burtersett
The Minister may be about to come to this point, in which case I apologise. However, I referred to the legal opinion of the Open Society Justice Initiative and Professor Goodwin-Gill. That raised a question over this whole matter and whether, the time having passed, we have in fact retained that power.
Lord Taylor of Holbeach
I would say that the Government’s position is that we have. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, seemed to concur with that opinion. However, I was grateful for the noble Baroness raising that issue and I will take note of what she has said.
We should be clear that we are discussing in this context very serious cases where an individual’s behaviour has been seriously prejudicial to the UK’s vital interests. That is the definition. We expect the person concerned to reacquire the citizenship of another state and in most cases they can. It is not satisfactory that when dealing with such individuals the Home Secretary’s decision is at the whim of the nationality laws of other countries. These cases will be few in number and subject to the most careful scrutiny by the Home Secretary.
I turn to Amendments 74 and 79. It is not in dispute that any individual deprived of their citizenship, either under existing powers or as a result of this clause, would have the full right of appeal regardless of whether they were in the UK or overseas. Grounds for appeal can include both the legality of the action and the merits of the Secretary of State’s decision. Therefore the courts already have an important function in reviewing the Secretary of State’s decision on appeal. I cannot agree that it is appropriate or necessary that the court should have to give permission before the Secretary of State can issue a deprivation decision. Any such procedure would be impractical and out of step with any other immigration and deprivation decisions.
Baroness Lister of Burtersett
I am sorry to interrupt the Minister, but he seems to be moving on from the question of proportionality. I asked if he could give an example of where it could be envisaged that the economic well-being of the country being threatened might be the reason for depriving someone of their citizenship and making them stateless. The Joint Committee on Human Rights was surprised about this being a possible reason. Can the Minister elucidate with an example of where that might be the case?
Lord Taylor of Holbeach
The noble Baroness will have to allow me to write to her on that issue. The Government have responded to the report of the Joint Committee on Human Rights, so she may find that the answer is in there. If not, I will seek to provide her with that answer.
As I said, Clause 60 is consistent with the UK’s obligations under international law. As I have set out here, and as accepted by the JCHR in its recent report, this clause is in accordance with international law by virtue of the UK’s declaration upon ratifying the 1961 convention and the domestic legislation that existed at the time. There is therefore no question of the clause undermining our international obligations. We are adapting and responding to the threat that the UK faces, but acting within our international obligations. Amendment 76 would be an unnecessary addition to the Bill.
The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Pannick, asked if we were contravening international law by making people stateless. I have given the answer to that. As a party both to the UN Convention on the Reduction of Statelessness of 1961 and the UN Convention Relating to the Status of Stateless Persons of 1954, the UK is obliged to comply with the provisions of those conventions, which we would continue to do. If a person was recognised as a stateless person and inside the UK, they would have—as my noble friend Lady Hamwee rightly pointed out—protection against removal and a right to work and study. Depending on circumstances they may be granted access to public funds and be able to apply for a stateless person’s travel document. Those, therefore, are the facts: we would not seek to ride roughshod over those conventions that we have signed up to.
Baroness Smith of Basildon
I did not intend to intervene until the noble Lord had spoken, but there is a lack of clarity in what he has just said. It does not seem to be the same as what the Minister, James Brokenshire, said in the House of Commons. He said that special consideration may be given, and that if leave to remain or some other kind of leave to be in the country was given, conditions would be attached to it. He mentioned new conditions. Is that the noble Lord’s understanding, or is this something different?
Lord Taylor of Holbeach
I must say that nothing I have said implies that there may not be conditions. They are frequently imposed on people who may pose a threat to this country, and this case is no different. However, I have said that the right to protection against removal would be part of our obligation under the existing conventions, and we would not seek to do otherwise than honour those conventions.
On the challenge made by the noble Baroness, Lady Smith, about the question of deprivation action taking place only in the UK, that is the salience of Amendment 76A. The purpose of the new power is not to target naturalised people who are abroad, but to allow the Secretary of State to take timely action against individuals, whatever their location at the time the decision is made.
However, it is a fact that in some cases key information comes to light when a person is outside the UK. Indeed, often travel abroad to terrorist training camps or to countries with internal fighting is the tipping point—the crucial piece of the jigsaw—that instigates the need to act, given the potential danger that those individuals would present on their return to the UK. The Home Secretary therefore needs to be able to determine the most appropriate response and timings to deprive a person of citizenship, regardless of whether they are inside or outside the UK.
Lord Pannick
Can the Minister give the House an assurance that the Home Secretary will not deliberately wait until an individual is abroad before exercising Clause 60 powers?
Lord Taylor of Holbeach
It is up to the Home Secretary to determine when she exercises powers in the country’s best interests. As far as I can see that is a sort of non-question, because she exercises the powers at her discretion and will do so in the best interests of the country.
Nationality can be reacquired, says Amendment 76A. On that amendment, it is a reasonable requirement for those deprived of citizenship to acquire an alternative nationality quickly. However, often those individuals have little incentive to do so, and any arbitrary time limit imposed on the power would only provide an incentive to delay.
The purpose of this power is to ensure that the Home Secretary can protect the security of the UK, whether or not the individual can or has the inclination to avail themselves of another nationality. In considering deprivation cases, assessments will be made of all circumstances, including the right to another nationality, but statelessness of itself should not be an arbitrary bar to action.
Let us be clear: deprivation action is taken only against those individuals who meet the thresholds I have outlined. We do not, and cannot, take deprivation action against family members—husbands, wives or children. I hope that that reassures the noble Lord, Lord Roberts of Llandudno. It cannot be done on the basis of any relationship to the person being deprived. The Home Secretary has a statutory duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to,
“safeguard and promote the welfare of children”,
in respect of immigration, nationality and asylum decisions. That is a duty which we take seriously and there is no necessity to restate it explicitly in the context of Clause 60, as Amendment 77 seeks to do.
The noble Baroness, Lady Smith, asked specifically about the case of Y1. The judgment in that case from the Special Immigration Appeals Commission in November 2013 dismissed Y1’s appeal against deprivation. The Home Secretary is entitled to reach her decision on how to manage cases using available evidence as appropriate.
The noble Baroness asked about numbers and mentioned that 27 people had been deprived under conducive powers since 2006. These powers have been exercised by not just this Government but the previous Government. There have been appeals—15 individuals have appealed against the decision taken by this Government to deprive them of their citizenship. The majority of those appeals are ongoing but, aside from Al-Jedda, to which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, referred, to date there has not been a successful challenge to a deprivation decision.
Some noble Lords are concerned that the proposed new power enables the Secretary of State to take account of behaviour carried out before the clause comes into effect. Surely it would be perverse if that were not the case. Such a position would not allow the Home Secretary to consider the full background to individual cases. We believe that those who naturalise to become British citizens should adhere to the values and laws that they swear an oath to maintain. As such, we believe that there is justification for making this power apply with an element of retrospection.
Noble Lords have challenged whether deprivation makes such people less of a threat. Deprivation is just one of a number of tools that can be used to disrupt the national security threat posed by certain individuals, either on its own or in conjunction with other immigration powers. By removing an individual’s entitlement to a British passport and to enter or remain in the UK, deprivation can help reduce the direct threat an individual poses to the UK—for example, by precluding him or her from involvement in the development of terrorist networks, the provision of terrorist support or training and the preparation of terrorist attacks on the UK.
It is important to remember that a person who could come within the scope of this new power would already be liable to being deprived of citizenship under existing powers. The only thing that prevents that now is that such a decision would leave them stateless—that is the difference that Clause 60 seeks to address—which is a fact that may become apparent only some way into the deprivation process. Therefore, we do not consider that an individual could have had a legitimate expectation that there would be no consequences of their behaviour. Again, I remind noble Lords that we are talking here about individuals who have committed acts that go to the heart of our national security.
In conclusion, this is a limited power that will apply to the most serious cases involving national security and those taking up arms against British or allied forces. The Secretary of State will continue to exercise her power with due consideration and within the existing safeguards for such cases. I have taken note of the points that have been made in this debate, and having time to go through the particular provisions of Clause 60 has been very worthwhile. I have noted the suggestion of the noble Lord, Lord Pannick, that between now and Report we have a meeting to discuss the implications of Clause 60. Indeed, I have noted the positive suggestions made by a number of noble Lords. In the mean time, I hope that the noble Lord will withdraw his amendments.
Lord Pannick
Before the Minister sits down, perhaps I could ask a question. He gave a very comprehensive reply—a very helpful one, if I may say so—but, unless I missed it, I do not think that he responded to the concern that, far from promoting the security of this country, Clause 60 will damage security. This is because the clause will make it more difficult to remove dangerous people, and make it more likely that dangerous people who are temporarily abroad will be sent back to this country because they no longer have a British passport. I wonder whether the Minister wants to say anything about those concerns.
Lord Taylor of Holbeach
That was of course a consideration in the discussions that led to the tabling of this clause. I think that I did address this point, in the sense that an individual who poses a threat to this country can have restrictions placed on them other than the deprivation of citizenship. I am sure the noble Lord will understand this point. I wish to make the point that this is a balanced judgment. The Home Secretary, who after all has to exercise powers within the law on this matter, believes that the law is deficient in this respect. She seeks to change it, and is doing so through this Bill. Knowing her, I do not think that she would make that decision if she felt that it would in any way weaken the security of this country.
Baroness Lister of Burtersett
I am sorry to ask the Minister yet another question. However, I asked a very specific question which was raised by the Joint Committee on Human Rights, and I do not believe that the Government have responded to our second legislative scrutiny report. If they have, the response has certainly not yet arrived on my desk. The question was: how many of those who have been deprived of citizenship in recent years have been abroad, and why will the Government not provide that information to Parliament? As the JCHR said, surely Parliament has the right to have that information in considering Clause 60.
Lord Taylor of Holbeach
The noble Baroness is right. I was getting muddled between the two responses. The second report has not yet been responded to; it will be. I hope that it can address some of the issues raised by the noble Baroness.
The noble Baroness, Lady Smith, referred to the question of whether there was some difference between what James Brokenshire said and what I said in my speech. Perhaps I can explain that by saying that where a person cannot be removed to another country, we would consider whether a discretionary granting of leave was appropriate. An option would be for the person to be placed on limited leave, with conditions such as regular reporting restrictions or the need to notify the Home Office before taking up work or study in a particular field. I hope that explains that there is no difference, and I think it backs up my supplementary answer to the noble Baroness when we debated the issue.
Baroness Smith of Basildon
I am grateful to the noble Lord for coming back to me on that point, but there are numerous other questions that he has failed to answer. He has not answered any questions about whether there are any other areas of law in this country that allow for two categories of citizenship. He has not told us whether there have been discussions or consultations with other countries to which British passport holders may travel—
Lord Taylor of Holbeach
On that first question, perhaps I could ask what the noble Baroness means by “two categories” of citizenship.
Baroness Smith of Basildon
In most countries, if someone is a citizen then they are a citizen. If someone is a natural born citizen of this country, their citizenship cannot be removed and they cannot be made stateless. Yet in this Bill the Government propose that if someone is a naturalised citizen of this country—as are Members of your Lordships’ House—they could have their citizenship taken away, even if they would be made stateless. I thought that that was clear, and that it was the point of what the Government sought to achieve.
Lord Taylor of Holbeach
Surely the categorisation is about naturalised British citizens and not about whether they are stateless. Therefore, this is in existence because it already exists in UK law.
Baroness Smith of Basildon
I think that the noble Lord is missing the point. My understanding was that if someone was a naturalised British citizen, he or she had all the rights and responsibilities of any other citizen. That is changed by this legislation. I was asking whether any other area of law is responsible. The noble Lord can come back to me on that. The position would be changed by this legislation because a naturalised citizen can be stripped of their citizenship and be left stateless. If I am correct in my understanding, a British-born citizen could not be left stateless. Only naturalised citizens could be made stateless by this legislation. Perhaps the noble Lord wants to respond to that.
Lord Taylor of Holbeach
I am afraid that there is a disconnect in our train of thoughts on this. I will write to the noble Baroness to explain exactly how this operates. The only change made by Clause 60 is that statelessness is no longer a reason why naturalised citizens should not be deprived of their citizenship. It is not a question of two categories of citizenship based on whether a person is naturalised or not.
Baroness Smith of Basildon
I think that it does and I will look to the lawyers on this issue. I also look forward to receiving the letter. Only naturalised citizens of this country could be made stateless. Natural-born citizens could not be made stateless by this legislation. However, I have other questions. I asked about consultation and discussions with other countries on the impact of people travelling overseas on a British passport and having their citizenship withdrawn. The noble Lord has not come back to me on that point. He has no more information on the 27 people. He has not come back on the issue of someone not being able to get citizenship in another country. We have the short-term answer but not the long-term answer. A number of questions remain unanswered.
The noble Lord is always very gracious and helpful in writing to noble Lords when he has not been able to answer questions. However, this clause has had very little scrutiny in Parliament. To have tabled it at the last minute, literally about 24 hours before Report in the other place, was disgraceful. It would have been helpful if all those answers had been addressed today to allow a full and proper debate. I am grateful to the noble Lord for writing to us but that is not a good principle when issues have not been debated in the other place. After the noble Lord has written, the only discussion that we will have will be at Report stage. I find that unsatisfactory.
Lord Taylor of Holbeach
If the noble Baroness had advised me in advance of the things she was uncertain of, I would have done my best to provide her with those answers. I have limited resources available to me at the Dispatch Box and a limited amount of time. I have suggested to the noble Lord, Lord Pannick, that it would be very useful if we could discuss this matter before Report stage. In the mean time, if noble Lords have any questions other than those that they have raised today, which I will address in writing, please advise me. It is important to get this legislation right. I believe in being able to scrutinise legislation in this House, in Committee and at all stages of a Bill.
I apologise for not answering all the questions but I have done my best. The noble Lord, Lord Pannick, advised me that he considered that my reply had been helpful. I seek to be helpful to the House.
Baroness Smith of Basildon
The noble Lord always seeks to be helpful. My point is a broader one of scrutiny and the lack of time available for discussion, but I would welcome any meeting. I also say that my resources are somewhat more limited than his. I sometimes felt that in his response we were having a slightly different debate. He was responding to a debate about deprivation of citizenship. Most noble Lords who spoke in today’s debate were talking about statelessness and its implications for the security of the UK. There was little argument that there might be a need at times for people to have their citizenship taken from them or revoked. That was understood. It is the changes being made by this legislation that would create a position of statelessness that cause the most concern.
The reason I say that great scrutiny is required is to establish evidence as to whether the measure is necessary. I thought that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, was extremely helpful in his take on the measure before us. I also ask whether this measure achieves the objectives that the Government are seeking. The noble Lord and his party do not have a monopoly on wanting the citizens of this country to be safe and secure. I am sure that is the objective of every Member of your Lordships’ House. However, we do have to consider the wider impact and unintended consequences of any legislation that is brought before your Lordships’ House. There is much concern about the measure. Noble Lords have asked many questions and the opinions of respected and eminent lawyers have been quoted. That is because of concern that it does not achieve the objectives that the Government are seeking. Most importantly, it does not make the citizens of this country, or more widely, safer or more secure if people are deprived of citizenship in a way that makes them stateless.
I take on board entirely the comments made by the noble Lord. He was talking about individuals who have committed acts that are a danger to this country and that may involve terrorism. Why, if there is evidence of that, could it not be presented as evidence against those people? Instead, the Government want to make them stateless. There are consequences around statelessness that give rise to concern for public, national and international safety. I look forward to receiving further information from the Minister. The jury is still out on this. I have not been convinced that the measure proposed by the Government does what it seeks to do or is an appropriate way forward. I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, my comments are equally brief. I have added my name to one of the amendments, and I think that the idea of an independent reviewer and a sunset clause are reasonable and worth further consideration by the Government. Like our amendment, they would provide greater oversight, which I would have thought all parties would welcome. Perhaps I may add one point. It may be possible that an existing independent reviewer could fulfil the role, and I think that we would all be willing to discuss how that could best be achieved.
Lord Taylor of Holbeach
My Lords, after the passion of the previous group of amendments, I find this a little easier to respond to. The noble Baroness, Lady Smith, has made the point that there is a pre-existing independent monitor, and indeed my noble friend Lady Hamwee referred to the role occupied by John Vine. His role was set up under the UK Borders Act 2007, and he is able to monitor and report on the efficacy and effectiveness of functions relating to immigration, asylum and nationality. That includes the effectiveness of decision-making on deprivation of British citizenship, so it exists already.
This is not an annual review process, and I think that that is probably one of the things we disagree on. With all his independent inspections, the chief inspector is permitted to examine only individual cases for the purpose or in the context of considering a general issue. But it illustrates that in addition to the judicial scrutiny of individual cases—I have explained that the power of appeal still exists—Parliament has already agreed an independent inspection regime which covers nationality and hence the deprivation of nationality.
Throughout the passage of the Bill, the Government have stressed the serious nature of the cases that will be considered under this new power. Clause 60 itself carefully limits the uses of the power to circumstances where an individual’s behaviour meets a new, higher threshold of being,
“seriously prejudicial to the vital interests of the United Kingdom”.
This will ensure that the courts subject the strength of the Government’s rationale for deprivation to close and anxious scrutiny in each and every case. In this case, I do not believe a new independent reviewer is necessary.
There has been a lot of discussion regarding the requirement to publish guidance and how individual cases will be considered, evidenced and decided. As I have said, deprivation is nothing new—it has gone on under this Government and previous Governments. Established practice exists, and guidance is published for fraud and deception cases, for example. Every case is different and will have its own case-specific facts. The core requirement on officials is to assess evidence and circumstances, consult colleagues across government and carefully weigh the evidence before making a recommendation to the Home Secretary. This is central to all cases. The Home Secretary herself reviews and personally signs off all deprivation decisions. Beyond this, there is little additional detail that would necessarily be appropriate, given that matters in cases that will fall under Clause 60 will be to do with national security. More importantly, in every case, the individual will be told the reasons for the decision and there will be a statutory right of appeal to the courts in each case.
I will address the bid for a sunset clause in this matter. The Government have a responsibility to protect the public and to respond to threats, and this clause is aimed at dangerous individuals who abuse their British citizenship and threaten the security of the UK. As I have emphasised, the power will be used only against those who pose such a threat. However, it is impossible to predict as and when these threats will emerge and I do not believe it would be appropriate therefore to time-limit the clause.
As I have said, I hope we have an opportunity to meet between now and Report, and this will no doubt be one of those matters which could be discussed at that stage. In the light of these points, I hope that the noble Baroness will agree to withdraw the amendment and that other noble Lords will not press theirs.
Baroness Hamwee
My Lords, I did not have in mind the Independent Chief Inspector of Borders and Immigration but the independent reviewer of terrorism legislation—I plagiarised the provisions in current legislation on terrorism for this clause—who I think would be the appropriate reviewer to undertake the work. I am not suggesting a new reviewer. This would fit very well with, and ought to be reviewed by, the same person who considers the application of terrorism legislation. However, I do think that there should be a review and statutory provision for it. I am a little puzzled as to why the Government might resist what, in the circumstances of Clause 60, is an extremely mild proposition, but perhaps that is something that we can discuss following this stage of the Bill. I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, I have just a couple of queries relating to Schedule 8 on “Embarkation checks”. This obviously requires co-operation and action from the airlines.
I was a bit concerned to receive an e-mail and a briefing note from the British Air Transport Association expressing its concerns about the schedule—not about the principle or what it seeks to do but the way it could be achieved. It says that it has worked very closely with the Government to ensure that e-Borders is in place—it has invested in that—but it is concerned that it will not be able to use passenger data for e-Borders as a new system is being brought in. It is seeking assurances from the Minister about the action that is being taken to work with the UK airlines, which of course have responsibility. It is concerned about longer boarding times and, most importantly, the risk at borders, because it feels that introducing the checks at border gates will require unqualified customer service staff to take on the role of an immigration officer without having the training to do so. It also feels that in some airports there are physical constraints because there is not sufficient or adequate infrastructure to support the efficient and timely carrying out of the checks. It also mentions issues around cost.
My understanding is that the British Air Transport Association has put a proposal to the Home Office on how to address this and how it can meet the requirements of the legislation without incurring additional costs, delays, constraints or compromises in security, which is another concern. I would be grateful if the noble Lord could address those points, and tell us what discussions are ongoing at the moment and when the Home Office expects to reach agreement on this. My fear is that if the association says that it physically cannot undertake measures in the Bill, a very serious situation then emerges.
Lord Taylor of Holbeach
My Lords, this is an opportunity to discuss this development, which forms part of the strategy and is widely supported.
I am very pleased to have the support of my noble friend Lord Avebury on this issue. He asked whether he was correct in his assumptions. I can tell him that he is: for the vast majority of individuals, the embarkation checks will be quite simple and straightforward and the existing officials employed by ports and airlines will be trained to do this task using very limited examination. The checks will allow those who currently have a role in outbound passenger processes to be designated and trained to perform the basic checks to establish a person’s identity, to collect the data necessary to identify threats or persons of interest and to confirm departure, so it is only those who are of interest who would be dealt with. It is not intended that designated persons should exercise any other powers of an immigration officer, such as powers of search or detention.
The exit checks will allow us more easily to identify those who have overstayed their visas and will help us improve measurements of migration so that we have a sounder basis for policy-making. The Government are confident that Clause 61 and Schedule 8 as drafted will provide the full range of powers necessary to conduct embarkation checks at the border and to collect all the information necessary to deliver in full an exit check capability.
The noble Baroness referred to a briefing that she had had. I have not seen that briefing but we are working closely with airlines to ensure that those checks can be conducted with minimum if any delay. We want to control departures in the same way as we control people coming into this country. We have introduced a new system for general aviation, the collaborative business portal, which allows operators to enter their data online. We do not plan to use the embarkation check powers in the Bill for general aviation and general maritime operators. We are working with them on a co-operative basis to enable them to come up with solutions that deliver our objectives, and those discussions are going very well.
I was asked by my noble friend whether we would achieve 100% coverage of exit checks. As I say, our target date is April 2015 and we are still sticking to that. We will have the arrangements in place to enable checks on those who leave the UK on scheduled commercial air, sea and rail services.
The noble Baroness, Lady Smith, asked whether this would lead to long delays at ports. We see the checks as being important, but our aim is to integrate them within the grain of existing processes in order to minimise the impact on passengers at ports. We are introducing the powers in the Bill so that we do not need to use immigration officers to do this work but, rather, can use existing staff, properly trained to deal with this particular process.
Baroness Smith of Basildon
I think that that is the point I was making. One of the issues raised by air transport operators was that it would not be qualified immigration staff undertaking checks but rather customer service staff.
Also, I think the Minister said that there would be two dates. He said that all the exit checks would be in place by April 2015 but then said that the system would not be rolled out in every place. I am trying to understand whether this really makes our borders more secure, or whether the fact that unqualified customer service staff instead of immigration staff are undertaking checks will cause a problem.
Lord Taylor of Holbeach
Not at all. These are not customer service staff but designated persons who will have the authority to do the task of exit checks. They will be designated and trained to perform the basic checks required that will deliver the policy.
I do not think that I said that this would be rolled out. I said that we intended to have the checks in place by April 2015. That is the plan, and it is going according to plan. I hope that the Committee will accept that.
Baroness Neville-Rolfe (Con)
My Lords, will my noble friend comment as to whether this power will allow checks which might be appropriate in certain circumstances or whether the plan is to check the passport of every person leaving the UK? If I go to Düsseldorf, is British Airways in future going to be checking my immigration status? I think it would be helpful to have clarity as to the intention.
Lord Taylor of Holbeach
All I can is that if my noble friend is flying to Düsseldorf, she can expect to have her passport checked at that time. She will know that that is what is happening. There is no difference.
Baroness Smith of Basildon
I am sorry, but I seek clarification on this. Does that mean that those airlines already compliant with providing passenger data through e-Borders will still have to have these additional checks undertaken at the point of leaving the country?
Lord Taylor of Holbeach
We are working with the airlines to find ways in which the existing advance passenger information can be incorporated into these checks. The advance passenger information provides only so much information. It is very useful and gives names, but it does not necessarily give the details of the individual’s passport or any visa requirements on that passport. That is a matter for examination, and the designated staff will be in a position to check that material at the time the person leaves the country.
Baroness Neville-Rolfe
My Lords, I am sure it would be helpful to understand this in a bit more detail because now you put the detail of your passport online when you order your ticket. The passport is not checked, except very summarily, when you get on to the flight. It really is an understanding of how this is going to happen. It may be that you are going to put more advance information online when you buy your ticket. I am very supportive in principle of the measures, but I think the logistics are very important.
Lord Taylor of Holbeach
The logistics are a matter for detailed planning with the airlines. What the Bill does—what this schedule provides for—is give those people who are responsible for dealing with this work the powers which at present they do not have. Advance passenger information already supports electronic texts on a large number of outward-bound journeys. API will be part of the exit checks solution along with other options, including checks conducted and data collected at the port of departure. These matters are being discussed so that this can be done efficiently, but API is a contributory element of this provision. As to the detail of how it is going to operate in every form of transport—every airport, railway station and port—I cannot possibly say at this stage. The powers of this Bill give those who will be challenged to perform this task the right to conduct those checks. Otherwise the checks would have to be done by immigration officers and we do not consider that this is an appropriate role for the Border Force.
Baroness Hamwee
My Lords, this debate has gone well beyond my amendment. I am not entirely sure that I had an answer to my amendment, but perhaps my concentration lapsed. I beg leave to withdraw the amendment.