(10 years, 8 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
16:47 - Division on Amendment 55A - Ayes: 282 / Noes: 184 - Amendment 55A agreed.
18:53 - Division on Amendment 56 - Ayes: 242 / Noes: 180 - Amendment 56 agreed.
Baroness Butler-Sloss
“Child trafficking guardians for all potential child victims of trafficking in human beings
(1) If a relevant child has arrived in the United Kingdom and is a potential victim of trafficking in human beings, an independent child trafficking guardian shall be appointed to represent the best interests of that child.
(2) The child trafficking guardian shall have the following responsibilities to—
(a) advocate that all decisions relating to the child are made in the child’s best interest;(b) ascertain the child’s wishes and feelings in relation to those decisions;(c) advocate for the child to receive appropriate care, safe accommodation, medical treatment, including psychological assistance, education, translation and interpretation services as required;(d) assist the child to access legal and other representation where necessary, including, where appropriate, to appoint and instruct legal representatives on all matters relevant to the interests of the child;(e) consult with, advise and keep the child informed of legal rights;(f) keep the child informed of all relevant immigration, criminal, compensation, community care, public law or other proceedings;(g) contribute to identification of a plan to safeguard and promote a durable solution for the child based on an individual assessment of that child’s best interests;(h) provide a link between the child and various statutory and other bodies who may provide services to the child, accompanying the child to any relevant meetings; (i) assist in establishing contact with the child’s family, where the child so wishes and it is in the child’s best interests;(j) where appropriate liaise with an immigration officer handling the child’s case in conjunction with the child’s legal representative;(k) accompany the child to all interviews with the police, the immigration authorities and care proceedings;(l) accompany the child to any court proceedings; and(m) accompany the child whenever the child moves to new accommodation.(3) A child trafficking guardian must have completed the training required in subsection (7) and may be—
(a) an employee of a statutory body except for an employee of a local authority;(b) an employee of a recognised charitable organisation; or(c) a volunteer for a recognised charitable organisation.(4) A person discharging duties as a child trafficking guardian shall not discharge any other statutory duties in relation to a child for whom they are providing assistance under this section.
(5) Where a child trafficking guardian is appointed under subsection (1), the authority of the child trafficking guardian in relation to the child shall be recognised by any relevant body.
(6) In subsection (5), a “relevant body” means a person or organisation—
(a) which provides services to the child; or(b) to which a child makes an application for services; or(c) to which the child needs access in relation to being a victim of human trafficking; or(d) any court or tribunal that a child engages with.(7) The Secretary of State shall by order—
(a) set out the arrangements for the appointment of a child trafficking guardian immediately after a child is identified as a potential victim of trafficking in human beings;(b) set out requirements for the training courses to be completed before a person may exercise functions as a child trafficking guardian;(c) set out the arrangements for the supervision of persons discharging duties as a child trafficking guardian;(d) set out the arrangements for the provision of support services for persons discharging duties as a child trafficking guardian; and(e) designate organisations as a “recognised charitable organisation” for the purpose of this section.(8) A person’s appointment as a child trafficking guardian for a particular child under this section shall come to an end if—
(a) the child reaches the age of 21; or(b) the child leaves the United Kingdom.(9) In this section, a child is considered to be a “potential victim of trafficking in human beings” when a referral has been made to a competent authority for a determination under the identification process required by Article 10 of the Trafficking Convention (Identification of Victims) and there has not been a conclusive determination that the individual is not such a victim.
(10) For the purposes of subsection (9), an individual will not be considered to have received a conclusive determination that the individual is not a victim of trafficking in human beings if—
(a) an individual is appealing or seeking judicial review of the conclusive determination; and(b) the appeal or judicial review is not completed.(11) In this section—
“competent authority” means a person who is a competent authority of the United Kingdom for the purposes of the Trafficking Convention;
“relevant child” means a person who is under the age of 18 and who—
(a) requires leave to remain in the United Kingdom whether or not such leave has been granted; or(b) is a national of an EEA state other than the United Kingdom;“the Trafficking Convention” means the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16 May 2005);
“trafficking in human beings” has the same meaning as in the Trafficking Convention.”
Baroness Butler-Sloss (CB)
My Lords, as your Lordships will see, I have formidable names supporting me on this amendment. I should declare that I am a trustee of the Human Trafficking Foundation and the co-chairman of the parliamentary group on slavery and human trafficking.
We all know that slavery and trafficking of victims are wicked crimes. When the victims are children and young people under 18, the horror of those crimes reaches a new dimension. Amendments 55A and 62A are designed to alleviate to some extent, but never entirely eliminate, the consequences of the effect of being trafficked into this country or through the United Kingdom. Children are particularly vulnerable to exploitation. Children of all ages, from babies to teenagers, are brought into this country by traffickers, who use them or pass them on to other traffickers. Kent Police, for instance, prevented several foreign children being exported to France. Girls and boys are exploited in the sex trade—as I say, it is boys as well as girls. There are children working a seven-day week as domestic servants or begging on the streets and the Tube, having been trained, Fagin-style, to thieve. Some of the boys who I saw running up and down the Edgware Road were, I was told by the Metropolitan Police, called mobile surfers. Your Lordships might tell your children and grandchildren, “Don’t leave your mobile on the table because a child will run in and pick it up, come out and throw it to someone else”. They are the ones called mobile surfers. There are Vietnamese boys cultivating cannabis farms, of which there are 7,000 to 8,000 in the United Kingdom, and there are other forms of forced labour.
The United Kingdom has signed up to the Council of Europe convention and the European Union directive against the trafficking of human beings. The previous Government, and the present Government, have put in place strategies for helping victims and the proposed modern slavery Bill will, I hope, make a breakthrough in the conviction of traffickers and the support of victims. It is, however, a sad reflection on successive Governments that the help for foreign children brought to the United Kingdom and identified as victims is less appropriate and less effective than it is for adults. They are treated as unaccompanied children and looked after under the provisions of the children legislation. A few are subject to care orders, which would involve a CAFCASS guardian for the period of the court hearings only. Most are accommodated under Section 20 of the Children Act 1989 and the local authority with which the child is placed does not have parental responsibility for the child. Moreover, a teenager over 16—many of them are brought into this country—is above the age for a care order.
These children and young people under 18 have been removed from their own country, family and home to a foreign country where most of them do not speak English. Some do not even know which country they are in. If they are lucky, they will be picked up by UK Visas and Immigration at the airport or port. However, others who are found later, particularly the Vietnamese boys who look after the cannabis farms, are treated by the police and the CPS as criminals and not as victims. Trafficked children are vulnerable to being retrafficked and a distressing number go missing before the social workers have even identified them as trafficked victims, so most local authorities do not even know which of their missing children are victims. These children have presumably been removed by the traffickers and many do not get found again.
Many children will have been subjected to the worst kinds of abuse imaginable. They may be traumatised, confused, disorientated and facing a bewildering variety of people who do not speak their language. Yet they are expected to cope with immigration officers, the police, social workers and other agencies, including the law. Some of them are groomed by their traffickers to give a false story. There are also cultural as well as linguistic barriers, a suspicion of public authorities and an unawareness of their rights. They need support, sympathy, continuity of care and, almost certainly, counselling or therapy or other medical and psychological care. Most need schooling. They are pushed from pillar to post, telling their story again and again in order to access welfare, medical and legal assistance. No one person—no identifiable friendly face—is there to whom they can turn throughout this period of their ordeal.
The purpose of these amendments is to give these children that one person who can be mentor, friend and support and a stable person in the lives of these unhappy, traumatised and ill treated young people. The first amendment sets out the duties of a child trafficking guardian. There are certain basic requirements. The guardian must be appointed as soon as the child is identified as a potential victim of trafficking and not 24 or 48 hours later, when the child may already have gone missing. The same person must be there until the conclusion of all the inquiries and the child is settled. The guardian must be the link for the child with all the agencies and make the arrangements in the best interests of the child. Perhaps most important of all is the requirement that the guardian has statutory authority in order to have the right to information about the trafficked child from, for instance, the police, social services and the NHS. It is also important to bear in mind that the role defined by Amendment 55A is not that of a social worker. Quite apart from anything else, the international best practice that defines the role of a guardian makes it clear that this role must be discharged by someone who is not involved in providing statutory services to them beyond the child trafficking guardian advocacy services. This makes the role quite different from that of a social worker.
The number of children involved is quite small compared with the 66,000 who go into care. There were 372 such children in 2012, according to the national referral mechanism. It would therefore not need a large number of guardians or a great financial outlay. However, the cost may not now be a major consideration in the light of the current government proposal for child specialist advocates, to which I now turn.
Lord McColl of Dulwich (Con)
My Lords, it was during a health debate seven years ago that I first drew attention to this appalling tragedy of human trafficking and the shocking number of children involved. It pains me to say that nothing has changed. It is still as bad as ever. There are more slaves today than in the time of Wilberforce.
When trafficked children are rescued, not surprisingly they have many needs. They need safe and secure accommodation, education, asylum and immigration support, legal advice and representation, medical care and counselling, assistance with tracing their family, help in engaging with police investigations and so on. These varying needs result in these children having to engage with a wide range of different state agencies. Having to deal with all these different agencies is traumatic for two reasons: first, trafficked children are required to repeat their traumatic story again and again to each of the different people dealing with the various aspects of their care and, secondly, the number of different agencies concerned is bewildering for vulnerable children in a foreign country.
In this context, children who have been rescued from trafficking can feel overwhelmed and they become vulnerable to retrafficking by their traffickers, who are always eager to reclaim them. Knowing this, the number of trafficked children who go missing from local authority care after being identified is of great concern: 301 of the 942 trafficked children rescued between 2005 and 2010 subsequently went missing, according to figures from CEOP. Some charities estimate the figure to be much higher, with more like 60% of trafficked children going missing. What a trafficked child needs is someone who can both stand beside them in all their engagement with the multiple state agencies and advocate for their best interests. These children need a real human face to provide this continuity not just protocols or systems for multi-agency working.
This is a problem not just in the United Kingdom but across the world. It is in this context that the idea of a child trafficking guardian has been developed by UNICEF and others to provide these two missing functions: first, relational continuity and, secondly, advocacy. The truth is that some charities already try to play this role, but because it is not recognised in law some state agencies refuse to recognise and engage with them.
Barnardo’s told the Joint Committee on the Modern Slavery Bill the story of Afina. Afina was a 17 year-old girl who had been trafficked. She was being supported by a Barnardo’s specialist project and accommodated by the local authority while waiting for a decision about her case under the national referral mechanism. Afina had a history of frequently going missing for periods of around a week or two, and it was known that she would travel to the east of the city. The local authority decided to move her to a residential unit in the east of the city in order to keep an eye on her. The Barnardo’s worker who was supporting Afina at the time raised the alarm with the local authority when she heard about this proposed move, as she was concerned that Afina’s traffickers may have been based in the east of the city, thereby explaining why she travelled there. The local authority did not listen. Shortly after the move, Afina went missing and has now been missing for many months. Barnardo’s are worried that she may never return to care. Afina’s MRN decision has recently confirmed her trafficked status but, with no way to contact her, she is unaware of this and is not receiving the care and support that she needs. Had Afina been appointed a child trafficking guardian, under this amendment, from the moment she had come to the attention of those in authority, her story could have been very different. She is just one example; there are many more.
As well as the importance of this statutory authority and legal recognition for child trafficking guardians, the other key defining factor is that they are independent of all the other statutory agencies that provide services to the child. Whether the guardian is a state employee or provided by a charity—the amendment allows for either—this independence is vital to ensure that no other policies or interests get in the way of putting the child’s best interests first. Picking up on the point about volunteers, I must say, as a Conservative and a Scot, that Amendment 55A would provide excellent value for money. It makes provision for the service to be provided by volunteers along the lines of the hugely successful, and very cheap, court-appointed special advocates in the United States. The only cost to the Exchequer would be the provision of appropriate training, which is of course hugely important. As my colleague on the Conservative Benches, the noble Lord, Lord Wei, explained in his important ConservativeHome article on the subject, trafficking guardians would provide an excellent opportunity for highly trained volunteers, like magistrates.
As the noble and learned Baroness, Lady Butler-Sloss, has said, today is the fourth occasion the Government have had to respond, in this House, to a proposal for child trafficking guardians. It was first proposed in November 2011 by my human trafficking Private Member’s Bill. The Government have had lots of time to respond and their response has been very disappointing. Initially, they argued that the Children Act 1989 already provided the necessary child trafficking guardian services through Section 26A advocates, independent visitors and independent reviewing officers. Even if one views these three roles together, they do not constitute a child trafficking guardian function.
Section 26A independent advocates are only appointed at the request of the child, not from the moment a child is recognised as a potential victim of trafficking, which is of pivotal importance if we are to protect children from being retrafficked. The relevant European directive and the amendment both make it plain that the appointment must be made at this first moment. Of equal importance, Section 26A advocates only relate to the services a child accesses from a local authority. The remit of a child trafficking guardian must extend further, including, for example, immigration services and the law courts. Independent visitors are a complete red herring because they do not go with the child anywhere and are not empowered to speak on their behalf. Independent reviewing officers are similarly a red herring because they do not accompany the child to meetings with the multiple state agencies but simply deal with their care plan.
In this context, another government argument is that the role of a child trafficking guardian would add an additional layer of bureaucracy. This is simply not credible. The implication is that a child trafficking guardian places yet another burden on the child; that it is an additional state agency with whom they must engage. The opposite is the truth. The child trafficking guardian provides no new agency that they have to visit. They are simply, and very importantly, someone who accompanies the child in their interactions with all the statutory agencies with which they must engage to help them process this existing burden. They lighten that burden, not only by providing moral support and relational continuity, but because they can speak on the child’s behalf. This role in ensuring that trafficked children have access to all the services that they need and helping to link the different agencies providing them is in fact a similar role to that of the family key workers in the Government’s very successful family intervention projects for troubled families. Trafficked children also need someone to provide that co-ordinating role.
Baroness Royall of Blaisdon (Lab)
My Lords, I am proud and pleased to be a signatory to Amendments 55A and 62A, and I am grateful for the excellent briefing that we received from the many organisations working with children and young people that understand the need for child trafficking guardians. I pay tribute to the noble Lord, Lord McColl, and the noble and learned Baroness, Lady Butler-Sloss, who have powerfully and graphically outlined the case for our amendments. They have done a huge amount of work on this and related issues, especially the noble Lord, Lord McColl, who has been absolutely dogged in his determination to get justice for trafficked children. More than 450 children were identified as possible victims of trafficking in the past year alone. In February 2012, I said that I was,
“certain that the noble Lord, Lord McColl, will pursue these issues doggedly until he is satisfied”.—[Official Report, 15/2/12; col. 849.]
My certainty continues.
As has been said, this is the fourth time that we have made the case in different Bills for child trafficking guardians, and our determination is undimmed. From all that we have read and heard, including in this House, the need for a systematic child trafficking guardian system is real and urgent; it is evidence-based and recommended by national and international experts. Indeed, the report commissioned by the Government when we first raised this issue during the passage of the Protection of Freedoms Bill in February 2012, entitled Still at Risk, identified that the care provided to trafficked children remains inconsistent and does not give adequate support or advocacy assistance. It recommended provision of an independent trusted adult who would ensure that,
“potential victims of trafficking are able to understand their rights, ensure that their voice is heard in decisions that affect them, and are supported effectively through the different legal processes that they are engaged in”.
The current, inadequate level of protection for trafficked children being offered by professionals and agencies, which are meant to be supporting them, leads to untold suffering and to some of them simply disappearing from the system. Some charities estimate that a shocking two-thirds of children who are rescued from traffickers then go missing again because the system to protect them simply is not strong enough. Most of these children come from countries outside the EU; they do not understand the language and they do not know where they are. Even when people try to assist them, the processes and web of contacts with which they are confronted are complex and confusing, and the fear must be intolerable.
Sometimes the decisions that are taken do more harm than good, compounding the situation. The Children’s Society brought to our attention the case of Charlotte. An orphan, Charlotte worked as a house girl in her country of origin before being brought to England, at the age of 13, by a relative of the family. She was made to work for the family and their children nearly 20 hours a day, seven days a week. She was extremely physically abused by the woman for whom she worked, and was eventually thrown out of the house. After sleeping rough, she was spotted by a member of the public who took her to the local social services. The social services took Charlotte to the police station, but she was terrified. The family who had exploited her had told her that, if she told anyone, particularly the police, that she was a child, she would get into trouble. She therefore gave the police the name and age that had been given to her by the traffickers. Her fear was compounded when the Home Office and her solicitor said that they did not believe her age, and she remained frightened that she would be sent back to her country of origin.
Charlotte needed a child trafficking guardian and the system failed her. Frankly, I do not understand why when, armed with the evidence of Still at Risk, the Government did not accept a similar amendment to the Children and Families Bill. The noble Baroness, Lady Northover, the Minister for that Bill, said then:
“We remain concerned that the introduction of guardians for trafficked children, alongside those persons who should already be working in the interests of the child, is not the most effective way to tackle the local problems”.—[Official Report, 9/12/13; col. 655.]
She said, as the noble Lord has said, that there would be new regulations accompanied by new guidance. Of course these are welcome, but they do not respond to the real, absolute need. That was not enough then and it is still not enough now, despite the fact that the Home Office issued a news release on 28 January which stated that child victims of slavery were to be given personal support by a network of specialist, independent advocates, acting as a single point of contact throughout the care and immigration process. However, as the noble and learned Baroness has said, there is very little detailed meat on the bones of the press release. There are clear anomalies, as she has pointed out.
Barnardo’s has welcomed the announcement of a pilot of specialist child trafficking advocates for trafficked children as a step in the right direction, but it believes that these advocates fall short of a legal guardian who would make decisions in the best interests of the child. Guardians would also have the legal power to hold agencies to account if they failed to support child victims of trafficking.
As an aside, I wonder why these proposed advocates—which are not enough—were not included in the draft modern slavery Bill which is now receiving its pre-legislative scrutiny. Most importantly, following our many debates and the research and evidence we have had, why were guardians not included in that Bill? Why water down the proposals that have been presented to the Government on numerous occasions? The poor substitutes that the Government keep giving us are simply not acceptable. I strongly urge the noble Lord to accept the excellent, well drafted amendment before us today, which meets the concerns of all those involved. Frankly, anything less than legal guardians will not be enough.
I freely admit that I am political, but this subject has nothing to do with politics. It is about humanity; it is about justice for some of our most vulnerable children, who, by foul means, have been trafficked into the country. They are suffering in ways in which no individual, let alone a child, should have to suffer. These defenceless young children have been subjected to horrific abuse, including domestic slavery and sexual exploitation. The current system is failing these children. They need someone to speak up for them to make sure that their best interests are at the heart of the decisions being made about them. We have a duty to act and to act now.
Baroness Howarth of Breckland (CB)
My Lords, I had not intended to speak on this amendment and I find myself in a curious position in so doing. Having worked in this field for many years, I am absolutely clear that you have to approach the needs of these children with your heart. Any noble Lords who have children or grandchildren can imagine what it would feel like to discover that they had disappeared from home—had been whipped away—and been forced into prostitution or other forms of slavery such as working as unpaid cleaners.
However, having reacted to the issue with one’s heart, one has to deal with it using one’s head. I say that because, having listened to the arguments, I am still not clear what a child trafficking guardian would do. I spoke against this concept during the passage of the then Children and Families Bill, and therefore feel that I should at least explain my position and establish where we go from here. At that point, I shared the view expressed by the Minister on behalf of the Government: namely, that we should make absolutely sure that staff in existing services had the necessary training to enable them to help these young people, particularly those who end up in children’s homes and subsequently disappear. Far too many young children go in and out of children’s homes, and I shall speak briefly on that.
As I say, I spoke against this concept at that point in the hope that we would be able to develop satisfactory services. Since then I have had conversations with people involved in social services. As many noble Lords will be aware, the stress on services at local level is at its highest at present. My own local authority has to find several millions of pounds more from its budget in the next few years. That money will come out of children’s services and care services as well as other areas and will reduce the services that we all strongly believe have to be provided. That makes me wonder how social workers, who are so incredibly hard pressed, will be able to develop the skills needed to help these young people.
Some local authorities are doing very well in this regard. I work with Children and Families Across Borders, and have met some of its workers. This organisation works with young people whose immigration, trafficked and care statuses are all in total confusion. Sometimes it takes four social workers and two local authorities working across local authority borders to track down and help these children. I am somewhat distressed in that two of the proposers of the amendment are two of my closest friends, whom I admire enormously, but, does the noble Lord, Lord McColl, really think that volunteers can work with these children?
Recently, I have undertaken work in the areas of safeguarding and witchcraft. Many noble Lords may know that trafficked young people are often told that a spirit will attack their families back home if they break the cycle in which they are trapped with their traffickers. They believe that this will happen and consequently they continually leave safe places to go back to the traffickers, not through perversity but because they believe that in so doing they are protecting their families. That is a complex concept for a social worker or, indeed, anyone to understand.
At this moment, I must say to my two colleagues that I am undecided about how I should vote. This is partly because I do not understand where the guardian would stand in the structure. Here I look to the Minister and to those proposing the amendment. Having worked for eight years in the children and family court service, as chair and vice-chair, I know all about guardians in that service. Where would these guardians stand? All workers need some sort of management. How would they relate to the local authority? What would the local authority’s role be? How do they differ from advocates? I have heard some examples, but still do not clearly understand the difference.
What I do know is that these young people desperately need someone who will understand them emotionally and who is hard-headed enough to understand the dangers. As we hear from many organisations working with these young people, the traffickers are dangerous not only to the children but to the workers, who must understand the danger of their work. The other issue is that without some sort of supervision for advocates or guardians, they cannot do the work. Everyone working with this sort of emotional stress needs a supervisor—I would never do it without a mentor. I leave these questions in the air before I shall decide where I stand on this issue this time around.
Baroness Hamwee (LD)
My Lords, I too applaud the determination of those who have brought this matter before the House again. Having seen that the Government were trialling an advocacy support arrangement across a number of different—and, in some cases, clearly obvious—authorities, I tried to find details on the Home Office website. I could not. Nor could I find anything on any of the local authority websites that I tried. However, if I am right in thinking that the trial follows on from the recently concluded draft regulations on care for unaccompanied and trafficked children, and that the provisions to be trialled reflect what is said in that consultation, I must say that I was disappointed in the lack of robustness in what I read there.
There is comparatively greater robustness in the amendment. The consultation said that the local authority should facilitate access to independent advocacy support where required. I note that the amendment requires the appointment of a guardian with defined responsibilities. The noble and learned Baroness has talked about the powers that go with those responsibilities. I am not sure that they are as explicit in the amendment as I would like, but they are implied. She clearly distinguishes between the social worker support and guardianship. I am aware that the pre-legislative scrutiny committee took evidence on this.
I ask the Minister to describe what is to be trialled—starting, I believe, in July—and also whether he can point noble Lords to where we can read more about this. I am concerned about the timing and how this will fit in with the proposed modern slavery Bill. I understand that the trials will run for a period of six months from July. There will then, quite rightly, be an evaluation. Perhaps the Minister can tell us who will do the evaluation. This is not intended to be an attack on the Minister in any way, but I do not think that the Home Office is necessarily the best department to evaluate this; it is really a cross-departmental matter. The evaluation must be considered and discussed with local authorities and a wide range of agencies. How long will that take? If the evaluation comes to the conclusion that there should be guardianship, will the modern slavery Bill include enabling provisions that will allow this to be fleshed out in regulations? How will this provision actually be achieved, given that the exercises that I have talked about must take us very close to May of next year and the end of the next Session?
The Minister has been extremely generous of his time in discussing the Bill. If this amendment is not accepted—it seems a little impertinent of me to seek to usurp the position of those whose names are attached to it, and I am not doing that—it would be very helpful if, following today, we could unpack the detail of it so that the Government can give a clear indication of where they have concerns, rather than just awaiting the result, as they will evaluate it, of the proposed trial starting in July.
Lord Quirk (CB)
My Lords, although I share some of the misgivings already expressed, including that of the noble Baroness, Lady Howarth, particularly in relation to the role of volunteers in this important matter, I find myself at present very much in support of the amendment. However, I wonder whether I could be given clarification in respect of proposed new subsection (8)(b). Clearly—or at least it seems clear to me—the intention is that the child trafficking guardian ceases to occupy that role if the child ceases to be domiciled in the United Kingdom. The subsection says something much fuzzier and possibly open to mischievous interpretation with its wording,
“if … the child leaves the United Kingdom”.
Perhaps in responding to others who will be asking questions for clarification, the proposers could take that small point on board.
Lord Northbourne (CB)
My Lords, I am not an expert in this field but I have encountered this situation in the context of the enormous number of unaccompanied children who arrive at the port of Dover. As a citizen of Dover and Kent, I declare an interest as a taxpayer there.
The noble Baroness, Lady Howarth, raised the very important issue of the enormous overload of work and pressures under which social workers operate in most, if not all, areas. I want to ask a question of someone, although I do not know whether it should be the Government. Who is going to pay for all this? My question is not so much, “Who is going to pay the guardians?”, because they might do it as volunteers, but if a child is moved from one local authority to another, the cost of caring for that child will move from one local authority to another, and, not unnaturally, local authorities whose services are already under huge pressure are not going to encourage that. How is it all going to work?
Lord Dubs (Lab)
My Lords, I support the amendment with great enthusiasm and want to comment briefly on an interesting point made by the noble Lord, Lord McColl, and possibly by others as well. I serve on a committee of the British-Irish Parliamentary Assembly and towards the end of last autumn we produced a report on people trafficking. We covered all the jurisdictions—that is, England, Wales, Scotland, Northern Ireland, and indeed the Republic of Ireland—and one thing that came through very clearly was that children who are taken into care because they appear to have been trafficked too often disappear from their local authority care home. Nothing seems to be done about that. It may be that the numbers are small, and I very much hope that they are, but surely it is extremely serious if a child in such a vulnerable position is taken into what seems to be a safe environment and then disappears, presumably—we can only suspect this—because the traffickers have discovered where the child is and have persuaded, induced or compelled him or her to abscond. There appears to be no system—I may be wrong but my committee could not discover one—whereby local authorities are diligent enough to try to find out what is happening to these children. They may have done so from time to time but there seems to be a gap in what is going on. Therefore I look to the amendment in the realistic hope that a child trafficking guardian would use influence to lessen the likelihood of children disappearing from local authority care homes.
On the noble Lord’s point about the cost implication if a child is moved from one local authority to another, I do not understand why a child in the care of a local authority, with no obvious parents to care for him or her, would be moved from one local authority care home to another, although it might happen. Nor can I see a good reason why a child should leave the country, as has also been suggested. If a child is vulnerable and in care, surely everything must be done to ensure that the child’s well-being is looked after totally and that the child would be enabled to leave the country only if there were a proper basis for him or her to be looked after elsewhere; otherwise we are simply saying, “We are washing our hands of this child and never mind what happens to it”. Surely we would never dream of doing that.
I look at the amendment to see to what extent it will meet the need that I have just described. I think that, by and large, it would. It does not quite spell it out as clearly as I would like, but if we had a child trafficking guardian and the child was in a local authority care home, the guardian would know that the child was there and keep an eye on him. If the child were to disappear, the guardian would surely be among the first to ask, “What has happened? All steps must be taken to find the child”. Above all, it would help the local authority care home and the social workers to develop a better system so that children could not easily be induced or compelled away, or whatever happens to them. Even if the numbers are small, we are dealing with a serious problem. We always thought that once a child was in a care home the child was safe. I hope that this amendment, if passed, will make such children a little safer.
Baroness Neville-Rolfe (Con)
I had not intended to speak but I was concerned to hear about some of the disturbing individual cases of bad practice described by noble Lords.
Surely the prime public policy need is better enforcement by the police, supported by social services, of anti-child-trafficking laws and penalties to prevent these awful things happening. Does an adequate framework for such enforcement exist? This issue is highly relevant to Amendment 55A.
The issues would be better discussed and tackled separately in legislation that can look at both issues—perhaps in the draft modern slavery Bill. We should also take time to properly review the proposed provisions. I noted the well informed comments of the noble Baroness, Lady Howarth, about the role of volunteers and the point made by the noble Lord, Lord Northbourne, about costs. For these reasons we should not burden the Immigration Bill with this complex new issue but seek to find a way forward to consider it.
Lord Cormack (Con)
My Lords, we have clearly got to find a way forward. As my noble friend Lady Neville-Rolfe has just briefly and succinctly said, the question is whether it fits better into this Bill or into the anti-slavery Bill.
There is no more despicable thing than to exploit a child. One’s mind goes back to when I had the great good fortune in 1982 to be commissioned to write a short life of William Wilberforce to commemorate the 150th anniversary of his death and the 150th anniversary of the abolition of slavery throughout the British dominions in 1983. In researching that book I became totally convinced that William Wilberforce was indeed the greatest Back-Bencher in our history. He was a man who never held office of any sort and yet campaigned brilliantly and persistently over decades, first, to achieve the abolition of the slave trade in 1807 and then, over a quarter of a century later, the abolition of slavery itself. He heard the news of the passing of that Bill as he lay dying in his home.
That of course did not end the sort of social evils against which he had campaigned, and we all remember Fagin, the fictional character of Dickens, and how Mr Brownlow came to the rescue of Oliver Twist. We also remember the writings of Henry Mayhew in the articles under the heading, “London Labour and the London Poor”. I often think that we could do with a Mayhew and a Dickens today to point the moral and adorn the tale, as it were, by graphically describing the sort of evils to which my noble friend Lord McColl, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Royall of Blaisdon, have referred during the debate.
Baroness Howe of Idlicote (CB)
My Lords, I support the amendment. Those who have listened to my noble and learned friend Lady Butler-Sloss and particularly to the noble Lord, Lord McColl, who has such a history on the background to this issue, will have been strongly persuaded that now is the time to act. We have just heard from the noble Lord, Lord Cormack, that plenty of able people could be recruited into this area. What is particularly important is that these guardians should be the sort of people who can gain the confidence of a young trafficked person soon enough to be able to intervene and see that whatever devils have been identified are in fact dispelled. The reality of the child’s situation should be appreciated and a way found for them to lead a normal life in the future, however horrendous their treatment has been. All of us will have been utterly appalled by what we have heard of that treatment. I shall not take more time because I hope there will be a vote, the sooner the better, to put this to the test. I merely emphasise how strongly I support the amendment.
The Earl of Sandwich (CB)
My Lords, on a final historical note, the noble Lord, Lord Cormack, probably remembers the late Lord Wilberforce sitting on these Benches. How horrified he would be to hear the statistic of the noble Lord, Lord McColl, that there is a greater number of slaves here today than in William Wilberforce’s time. I have followed this issue as a council member of Anti-Slavery International for nine years. I pay tribute to its staff for what they have done behind the scenes to educate the public and the Government.
I am impressed by the distance that the Government have travelled on this road already, not only on the conventions but in the detail that we are looking at today. It is as a result of non-governmental pressure. But there is more to be done today, so I strongly support the amendment although I anticipate that it will not be easy for the Government to accept. The Minister should accept it because of the feeling across the House this afternoon which was inspired by the moving descriptions of my noble friend and others. He should accept it because it is humane, and because it is a belt-and-braces protection for the trafficked child who will not have adequate protection from the social services or from CAFCASS despite what my noble friend has said: they are not in the position yet to cope with this. He may not want to accept it because of the constraints of his ministerial responsibility and the departmental budget, which has many calls upon it.
We are grateful for the offer of a trial for personal advocates. However, it does not go far enough because, as he has already heard, the Children’s Consortium and many others argue that there is no proper protection under the Children Act for trafficked children without a legal guardian. That argument must be correct. Perhaps the Minister will take up the invitation of the noble Lord, Lord Cormack, to make a small promise and bring something out of a hat, maybe in the draft Modern Slavery Bill or a promise for Third Reading. I look forward to that event.
Baroness Hussein-Ece (LD)
My Lords, I shall add a few words to this important debate. There cannot be many of us in your Lordships’ Chamber who have not been moved by the plight of these very vulnerable young people and children who have been treated so badly. We know the numbers are not huge; nevertheless they are significant. I welcome what the Government said earlier about introducing a pilot system of advocates. However, I do have a problem with how far this would go, having been a local authority councillor and a cabinet member with responsibility for child protection and for unaccompanied children who have often been trafficked. We know that this problem has been going on for many years—the status quo is simply not acceptable. We must act to protect these vulnerable young people.
As I understand it, an advocate is somebody who speaks on behalf of someone else, in this case the child. However, my worry is whether the advocate would have any legal responsibility in the way that a parent would, or, under the amendment, a guardian. The amendment gives the guardian some parental responsibility to act and take decisions in the best interests of the trafficked child, and to work across agencies. We know, as has already been said, how local authorities are stretched. Often a child will have three, four or five social workers in a year. That is not unusual. Very often, they simply get lost trying to navigate a very complex system.
The attraction of a guardian, which is so compelling in the amendment, is that this person would be required by the Secretary of State to take a far more official and statutory responsibility for individual young people and to act in their best interests. I hope that my noble friend will perhaps address this when he comes to respond. Would he be satisfied? Does he think that we should be satisfied that this six-month pilot scheme with advocates will go far enough to protect these very vulnerable children and young people? Otherwise, we would have to consider this very carefully in evaluation, and it may well be too late. What worries me is that we will have a six-month pilot period, followed by the evaluation, but all the time young people are falling between the cracks, going missing, not being picked up and not being protected. At the end of the day, that is what we want—for these children and young people to be protected as long as they are here in our care in this country.
Lord Avebury (LD)
My Lords, I will just pick up a point that my noble friend made about the difference in powers between the advocate on one side and the guardian on the other. The point was raised in the memorandum sent to us by the Refugee Children’s Consortium whether or not, without “legal powers”, there will be anyone,
“to instruct solicitors on a child’s behalf and ensure that decisions are made in their best interests”.
Would the advocate have those powers to instruct a solicitor on the child’s behalf? I take it that a guardian certainly would have those powers, which is an important difference between the two proposals that we now have before us.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, this has been interesting. This is not the first time that the House has discussed the issue, but I am pleased that it has been raised again for noble Lords to consider. I am also pleased that the noble Earl, Lord Sandwich, feels that we have travelled a long way. It certainly seems as if we have done so. I accept the feeling that lies behind the amendments and, if I urge the noble and learned Baroness, Lady Butler-Sloss, to withdraw her amendment, it will be on the grounds of things that I will tell her that the Government are doing, not because I think that her feeling on the issue is wrong.
The Government remain absolutely committed to stamping out all forms of modern slavery, and the work on this issue continues apace. I think my noble friend Lord McColl probably knows this already, but there are no half-measures in what we are going to propose. Last December, the Home Secretary published a draft Bill on modern slavery—the first of its kind in Europe—which will ensure the harshest penalties are available for offenders. It consolidates and simplifies existing offences, making the law easier to apply. At the heart of everything we do is the desire to support and protect the victims and to ensure that they receive the help they need to recover from their traumatic ordeal. I met with Frank Field last week, who noble Lords will know is working closely with the Home Office on this very issue, as indeed are a number of noble Lords.
We have listened to the concerns raised in this House and we agree that these children must be afforded the best support and protection from the state. Since this House took a view on this matter during the passage of the Children and Families Bill in December, the Government have announced a trial of specialist independent advocates for trafficked children. The trial will test the specialist independent advocates against the existing system, which will be supported by new, strengthened statutory guidance and regulation in this area. The noble Baroness, Lady Howarth, showed how important it was that this new system should be able to work reconciled with our existing system, so that we get the best from it. I say to the noble and learned Baroness, Lady Butler-Sloss, that these specialist, dedicated advocates will be experts in trafficking, and completely independent of the local authority and social services department. Their role will be to steer the child through the complexity of the multiple government agencies—not just local-authority care, immigration and criminal justice but all government departments. This is to ensure that the child’s voice is heard.
Lord Taylor of Holbeach
I am sorry if that was the case. I was hoping that all noble Lords here would have seen it. A copy of the letter was placed in the Library.
I can say that these roles are almost all entirely aligned. The specialist advocates that we are trialling from July will be a consistent point of contact for the child. They will accompany the child to meetings and support the local authority to assess the child’s needs, and promote the child’s safety and well-being. They will support the child in relation to children’s social care, immigration and criminal justice systems and, importantly, they will play a role in key decisions relating to the child trafficking victim.
There are, however, two important suggestions. First, our proposals go further. Child trafficking is child abuse. It is vital that we ensure that all victims, who deserve to be helped to recover from the trauma of this hateful crime, receive the support that they need. The Rochdale and Oxford cases have shown that the trafficking of children extends its vile reach much further than purely those being trafficked across borders. I hope that noble Lords will appreciate that. I assure my noble friend Lady Neville-Rolfe on this. That is why the trial of specialist independent advocates goes wider than the proposed amendment. The support in the amendment will be given only to those trafficked across borders; under our proposals, the support will be not only for those children but for those trafficked internally in the UK as well. Secondly, our advocates will support children, as I have said. Under the amendments before us, these guardians will support adults up to the age of 21 and would not therefore be focused on the needs of the child as our advocates will be.
I assure noble Lords that progress on setting up the trial has been swift. We will be in a position later this week—it is a pity it is not today; I am having to argue with the knowledge that the situation will be made clearer during the course of this week—to announce which organisation, which I am sure will be well known to noble Lords, will be delivering the child trafficking advocacy service, which will commence on 1 July 2014 across 23 different local authorities.
There are differing views on and evidence about the best way to support these incredibly vulnerable children, and we have heard some of those discussed this afternoon. To ensure that we take the right action to deliver the best outcomes for these children, we consider it essential that we are given the opportunity to assess whether the introduction of the specialist child trafficking advocates will make the difference we hope and believe it will, but we need evidence in order to discuss how to roll the project out. That is why we are commissioning an independent evaluation of the trial. An evaluator will be in place by June and will report six months after the trial commences, and again when the trial concludes.
As my noble friend Lord Attlee made clear on 19 March, this will enable us to consider the impact of the specialist independent child trafficking advocates, as well as how the scheme worked, during the passage of the modern slavery Bill, which should be before one or other of our two Houses of Parliament. The modern slavery Bill is a much better place to make these changes. I think most noble Lords understand that that is a Bill that is specifically about this issue. The trafficking of children is not just a migration issue. By making amendments to this Bill, we risk conflating the whole business of immigration with the issue of trafficking and creating a gap for children who are trafficked within the UK.
Lord McColl of Dulwich
Will the noble Lord make clear why the advocates that he is proposing do not have a legal status?
Lord Taylor of Holbeach
That is a question that the modern slavery Bill will indeed be able to consider. The whole point of having the trial is that we need to know the degree to which a legal status for the advocates is essential for their success. I say to my noble friend: let us give the trial a chance. This area has not been dealt with by successive Governments over time, and it is a problem that has grown worse over time. Surely the sensible way to do it is by having a trial; we will know before we legislate in the modern slavery Bill. I reassure the noble Earl, Lord Sandwich, that we will be considering this matter within the context of that Bill. I am sure he will understand that.
Lord Cormack
Can my noble friend give the House a guarantee that there will be something on that on the face of the anti-slavery Bill?
Lord Taylor of Holbeach
The Bill that is presented to Parliament is hardly likely to contain details of this measure because, as I understand it, the intention is to introduce sections on the trafficking advocates during the passage of the Bill, when we will have the information available.
Baroness Royall of Blaisdon
My Lords, pilots are often very good places to start. But the noble Lord, Lord McColl, the noble and learned Baroness, Lady Butler-Sloss, and others first raised this in 2011. We have what I believe to be a very good Bill, the modern slavery Bill, going through pre-legislative scrutiny at the moment, but I do not understand why this is not an integral part of that Bill. The Government have known for a long time that that Bill was coming forward. The pilots could have taken place an awfully long time ago. I am intrigued as to why all the bits of the puzzle were not put together, as would be logical.
Lord Taylor of Holbeach
The noble Baroness is perhaps right to chide me, but we are seeking to get this matter right. It is in the interests of the children to make sure that the public authorities that have to deal with this problem have a proper ground on which to do so. This is not an easy area. We are dealing with children whose situation is very different from that which we ourselves experienced as children or, indeed, our own children have experienced. These are very different terms and to get that right is important.
Baroness Howarth of Breckland
I apologise for interrupting the Minister, but I happen to agree with him that the most important thing is to get this right. Having heard the arguments so far, I do not think any of these options have been properly thought through to their conclusion to ensure that we get this right. Looking at what is happening on the ground at the moment, we could actually have another difficult, disastrous situation. Therefore, I ask the Minister: did I mishear, or did he say that the advocates would be set up under some sort of statutory regulation? I think the thing that concerns the House is the authority by which the advocates would be able to operate.
Lord Taylor of Holbeach
They would advocate in exactly the same way as they do currently in Scotland. There is no statutory scheme in Scotland but they are respected by the authorities there. What I am saying to the noble Baroness and, indeed, the House, is that setting them up under a statutory scheme is one of the matters that we will find out as a result of having these trials in place. This, to my mind, makes sense. Given what the noble Baroness is advocating, I sense that she is on my side because she can see the complexity of the issue.
I think that the noble Baroness, Lady Royall, is on my side. She is perhaps right to chide me for not acting more promptly, but none the less there are limitations to these amendments, which do not provide, for example, for the involvement of UK-trafficked children. We want the trial to deal with children whose trafficking origin may be from crossing borders but may well be within the UK—they are equally vulnerable and can equally benefit from having an advocate operating on their behalf.
Let me perhaps deal with some questions, as I have talked a lot about how I feel and noble Lords will know that I feel quite strongly about this particular issue. I was asked by my noble friend Lord McColl whether the independent advocate would operate in the same way as the guardian. Our advocates will be allocated to children in the trial as soon as they can be identified, with no delay. Any provided for the purpose of this trial will provide 24-hour access to their service to ensure this. As I have said, the role of the advocate is almost entirely identical to the role that the noble Lord outlined. Under existing arrangements, the victim must be informed of their right to an independent advocate. The advocate will be available to all potential child trafficking victims participating in the trial whether or not they are in receipt of support from the local authority—that is, in the care system. Therefore, one does not have to be in the care system to be entitled to receive this support. Children will be allocated to the advocate automatically as soon as they are identified as potential victims.
Lord Higgins (Con)
I am extremely grateful to my noble friend. Coming to this rather from scratch, can I ask him to spell out precisely what the difference is between the amendment and what the Government are proposing?
Lord Taylor of Holbeach
First of all, the amendment is to an Immigration Bill and is therefore confined to immigration, and it only deals with such children who have been trafficked—I am sorry, I have received advice on this—so it is limited in that respect. We believe that it is wrong to legislate by the terms of this amendment when a trial is in place that seeks to make sure that the legislative framework adopted for this development is sound and in place on a proper footing. We have a modern slavery Bill which, as I hope my noble friend will understand, is much more aligned to addressing this issue than the particular type of trafficking which depends upon immigration for its origin.
Lord Lester of Herne Hill (LD)
I am very sorry to be adding to the questions, but can the Minister explain how the trial is going to help the Government to decide whether the scheme should be statutory? What is the problem about deciding that question now and telling the House that it will be made statutory in the other Bill?
Lord Taylor of Holbeach
I think I gave an answer to that, did I not? It may not be necessary. It is not in Scotland, where it works well enough, so why should the Bill make it statutory in England if it does not need to be? These are the sorts of considerations that Parliament is there to decide. Now, if the noble Lord feels that we should decide it today and include a statutory provision within the Bill, so be it. I am just asking: why do that when you cannot be certain of the terms of the statutory obligations that you want to have in place? I am explaining to noble Lords that the whole purpose of the trial is to examine those. I was asked by the noble Earl, Lord Sandwich, about that. If the evaluation of the trial gives the evidence that we are looking for, we will indeed bring forward an amendment to the modern slavery Bill to deal with it.
The noble Lord, Lord Northbourne, quite rightly asked who is going to pay for this. For the purposes of the trial, the Home Office is funding the provision of advocates and, were this to be rolled out nationally, the Government would need to consider where the budget would be drawn from. That is why we need the opportunity to evaluate the role. If we want this to be worth while, where is the money, how are we going to pay for it and what elements do we have to consider as a priority? As part of this Government’s work to eradicate modern-day slavery, the Home Office has funded this trial of independent specialist advocates. The amendments before us do not make clear on whom the duty to appoint and therefore fund the child trafficking obligations will fall. Is it children’s social care or the Secretary of State? That is not clear within these amendments.
My noble friend Lady Hamwee asked about the statutory guidance. She is quite right that statutory guidance will be important. She asked whether the independent child trafficking advocate is the same as the independent advocate referred to in the draft DfE statutory guidance. No, the advocates that we are trialling will be specialist, dedicated advocates working only with victims of child trafficking. They will have a broader role to support them in relation to children’s social care, immigration and the criminal courts. They will be a constant point of contact, so it is a broader remit than would be provided for under this Immigration Bill.
It is critical to ensure that we have the best arrangements in place to protect and support these vulnerable children. Before we make any changes to our existing safeguarding arrangements, for there are safeguarding arrangements already in place, Parliament must be confident of the outcome of these changes. That is why I am at this point asking my noble friends to be patient and await the robust, independent evaluation of this important trial. It will be independent.
I say to my noble friend Lady Hamwee that I will write later this week to noble Lords to explain the updates which are consistent with this week’s announcement. I will include the noble and learned Baroness, Lady Butler-Sloss, in my correspondence—I promise her that. I will then keep noble Lords posted throughout the passage of the modern slavery Bill, and indeed the process of the trial, so that when that Bill comes before Parliament they are in a position to consider the amendments that this Government will make. I urge the noble and learned Baroness, Lady Butler-Sloss, to withdraw her amendment on the grounds that I have assured her in this way.
Lord Wright of Richmond (CB)
My Lords, before the Minister sits down, may I raise an entirely separate administrative problem? The Minister referred to a letter which was clearly highly relevant to many Peers, but which they had not seen. It had been placed in the Library. The Minister himself very kindly wrote to me about a month ago on an entirely different subject, and I went to the Library to see where the copy lay. It is on the web. Nobody had been told that the Minister had written to me; it might have been up to me to do so. Perhaps I may suggest that somebody—clearly, not the Minister—ought to look into this problem, because when a letter is placed in the Library the writer probably assumes that many of us have seen it. There clearly needs to be some sort of action to draw it to the attention of relevant Peers.
Lord Taylor of Holbeach
I assure noble Lords who have spoken in this debate that I will write to them personally about developments this week. I am very grateful for the noble Lord’s notion. We met, and I did indeed say that the letter was in the Library, and I am sorry if it was only on the web. I will try to ascertain how that is. I think that noble Lords will agree that on this Bill I have been pretty assiduous in trying to keep noble Lords abreast of what is going on, and I will continue to do so on this particular topic.
Lord Cormack
Before my noble friend sits down, he said that we will have details in a few days. Does this not make a powerful argument for his coming back on Third Reading?
Lord Taylor of Holbeach
No, we will not have information on the trials within a few days. We will have information about how the trials are being set up and the evaluation of the trials. That is what we will have available within the next few days. It is important that we wait until then before we make a decision on this matter, but I assure noble Lords that they will be informed when an announcement is made. It cannot be made at the moment because of the ways in which the Government actually organise these affairs, but it will be made very shortly. It will be this week, and within the next few days.
Baroness Butler-Sloss
My Lords, I do not doubt the good intentions of the Government. I should like to have seen that letter before I prepared what I was going to say to your Lordships’ House. I did not know that the letter existed, so I did not go to the Library to ask about it. I suspect that there are others in the same situation. That really does put us in grave difficulties when we are putting forward amendments.
However, perhaps much more importantly, I am a member of the Joint Committee on the Draft Modern Slavery Bill, and three different government Ministers came to speak to us, together with endless government officials at different times, but nobody told us about this. The first I knew of it was the press release. The Joint Committee was sitting until the end of last week and yet, oddly enough, we were not even told about it last week. We knew through the press release. You might have thought that it was relevant for the Joint Committee on the Draft Modern Slavery Bill to be told about it, but we were not told. I read the press release that dealt with care proceedings in immigration. It did not deal with any of the other matters that the Minister told us about. I do not doubt his good intentions, but it is interesting that we have it on Monday this week, rather than last week.
If I may respectfully say so, it looks as though the Government are scrabbling a bit to meet this amendment. If this really matters to the Government, it is odd that there is nothing in the modern slavery Bill, not even enabling powers, to allow for the production of statutory guidance, if that was the appropriate thing. The statement that there will be a statutory guardian does not have to be in the Bill, but the words that the Secretary of State could provide for such a guardian could be included. That did not come to us last week. I ask noble Lords to reflect on what is going on here when today is the first day I have heard about it, the Select Committee has never heard about it and even the press release had only part of what we are told today, although it was quite a long press release.
What is the real difference between what the Government are offering and what the amendment is saying? The difference is the statutory power. We were told again and again in our Select Committee about the absence of a statutory power for an advocate or a guardian. The word is unimportant and the title does not matter; it is the job that matters. The job is being offered by the Minister, but the Select Committee was told that if you have no statutory power, there is no obligation on any agency—social services, the police, the CPS for the Vietnamese boys who are being prosecuted or the NHS—to deliver to that advocate the information the advocate needs. The advocate will not have any powers in going to advise in immigration procedures or to talk to the UK Human Trafficking Centre, and so on and so forth.
Lord Taylor of Holbeach
I do not wish to interrupt the noble and learned Baroness, but I made it quite clear that advocates would have those powers. For these trials, they do not require a statute. They will have the right to represent that child at any meeting—immigration, criminal or of any description. I have tried to make that quite clear.
Baroness Butler-Sloss
My Lords, I hesitate to disagree with the Minister, but where do the powers come from if there is no statutory basis? He referred to Scotland. The Select Committee heard very interesting evidence from a number of people from Scotland. They told us that in Scotland all the trafficked children are in Glasgow. There is one police force which works very closely with the local authorities. They can make it work in Glasgow. They told us very clearly, particularly one of the MSPs, that they did not think it would work in England because England is not one place. England is a lot of rural communities, urban communities and big cities where the police may not have heard of this, so when the advocate who has no statutory power goes to the police somewhere in the north-east of England they will say, “Get lost”. I can very well see it. In the absence of statutory powers, I do not see what good intentions will do. If the Government would accept in principle what we are asking for, there is no reason why the other place cannot improve it on such matters as the Secretary of State, who is not in the amendment, but we need to have the House with us to get the very basics.
I remind noble Lords that children are worse off than adults at the moment. We are not talking about English children from Rotherham, Rochdale, Luton and Oxford. We are talking about foreign children who are trafficked into this country without the language and not even knowing which country they are in. Many, if not most, of the children do not go through the care system. If they are only accommodated, the degree of social work help is limited. A CAFCASS guardian is not appointed. They do not go through the court system. Consequently, these children are outside the system. These children need the help that those who go through the care system get.
I recognise the points that the noble Baroness, Lady Howarth, whom I treat as one of my closest friends, is making. I would prefer to see one of the major charities take this on, rather than independent volunteers, because that would have a basis of efficiency that would make me feel a lot happier. She is right about a mentoring or supervisory system for guardians: I should like to see that. Those things are important but they are details that one could put together once it is on the statute book.
The noble Lord, Lord Quirk, pointed out the interesting issue of domicile, which I had almost forgotten about. It arises in divorce, where it hardly ever matters, but to my recollection—and that of the noble Lord, Lord Elystan-Morgan—it does not arise in the Children Act 1989 or any other child legislation where there is an issue of residence. Consequently, the answer is that if a child leaves the country they are no longer resident.
I see no difficulty in a legal guardian or advocate—I do not mind about the word—working with social workers. CAFCASS, which is an independent, nationwide organisation run by the state, works perfectly well with social workers. Why can an independent child trafficking guardian system not do the same, so long as it has the statutory basis that the social workers have to treat it seriously?
I could make a great many other points but we are, as the noble Lord, Lord McColl, will remember, being asked for the fourth time not to pursue this. Why is this? It is because of half measures. I would prefer it in the modern slavery Bill but the Government are not offering it there. Let us, consequently, get it into some legislation. If the Government accept it, they can put it into the modern slavery Bill and we do not have to have it in the Immigration Bill. We need the view of the House that this is what should happen. I beg leave to test the opinion of the House.
Lord Pannick
“(1) A committee of members of both Houses of Parliament shall be established to consider and report on whether section 40 of the British Nationality Act 1981 (deprivation of citizenship) should be amended to enable the Secretary of State to deprive a person of their citizenship status if—
(a) the citizenship status results from the person’s naturalisation, and(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, even if to do so would have the effect of making a person stateless. (2) The committee shall consist of six members of the House of Lords nominated by the Chairman of Committees, and six members of the House of Commons nominated by the Speaker of the House of Commons, to be appointed on the passing of this Act to serve for the duration of the present Parliament.
(3) Any casual vacancy occurring by reason of the death, resignation or incapacity of a member of the committee shall be filled by the nomination of a member by the Chairman of Committees or the Speaker of the House of Commons, as the case may be.
(4) The quorum of the committee shall be two members of each House and the committee shall be entitled to sit and to transact business whether Parliament be sitting or not, and notwithstanding a vacancy in the membership of the committee.
(5) Subject to the above provisions, the committee may regulate its own procedure.”
Lord Pannick (CB)
My Lords, this amendment stands in my name and in the names of the noble Baroness, Lady Smith of Basildon, the noble Lord, Lord Macdonald of River Glaven, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood. The noble Lord, Lord Macdonald, has asked me to express his apologies to the House for his absence abroad today.
Clause 64 would give the Home Secretary power to decide that British citizenship obtained by naturalisation should be removed for reasons of the public good, even if the result would be to render the person stateless. Amendment 56 would establish a Joint Committee of both Houses of Parliament to consider all aspects of the Government’s proposal and report back. Parliament could then take an informed view on whether the benefits, if any, of the Government’s proposal outweighed any detriments. A Joint Committee is required because Clause 64 was added to the Bill very late in the passage of the Bill through the other place—that is, 24 hours before Report and Third Reading on 30 January, so there was no pre-legislative scrutiny of this proposal, no consultation and no opportunity for consideration by the Public Bill Committee of the other place. The absence of pre-legislative scrutiny and proper consultation is especially unfortunate in a context such as this. The Home Secretary said, in introducing this clause in the Commons on 30 January:
“Depriving people of their citizenship is a serious matter. It is one of the most serious sanctions a state can take against a person and it is therefore not an issue that I take lightly”.—[Official Report, Commons, 30/1/14; col. 1038.]
The need for proper scrutiny by a Joint Committee is not an abstract matter. The implications of Clause 64 raise matters of real concern on which there is very limited information, as the debates in Committee in your Lordships’ House demonstrated. Many questions were posed in Committee as to how this proposed power would work and what its consequences would be. A Joint Committee will need to consider the practical implications and the international implications of implementing this power. As discussed in Committee, there are real concerns that the proposed measure would do little to protect the national interest and may be counterproductive. It is difficult to understand what would be achieved by taking away the citizenship of a person resident here. It may be more difficult to remove them from this country as other countries would be less willing to accept them without a passport.
In his letter dated 4 April—which I and other Peers received and for which I thank the noble Lord—the Minister, the noble Lord, Lord Taylor of Holbeach, emphasised, rightly, that we are concerned in this clause with dangerous individuals, individuals who pose, as he said, a serious national security risk to the United Kingdom. There is no dispute about that. The question is how the exercise of a right to remove British citizenship would assist in protecting us against such individuals. The noble Lord said in his letter that the Home Secretary is concerned to prevent such people from travelling abroad using a British passport to participate in terrorist training activities. However, the Secretary of State already has power to withdraw a British passport from dangerous individuals for precisely such a reason without stripping them of their nationality and making them stateless. The noble Lord, Lord Taylor, made a Written Ministerial Statement on this very subject to the House on 25 April of last year.
In practice, it seems likely that a deprivation of citizenship would normally occur while the individual is out of this country. However, that raises a concern that other countries may well say that the individual was allowed in only by reason of the fact that they were travelling on a British passport, and now that that status has been removed and the person has no other nationality, we, the United Kingdom, can have them back. Your Lordships may have seen the advice of Professor Guy Goodwin-Gill, professor of international refugee law at Oxford University, that in those circumstances this country would have an international law obligation to the other state to readmit that individual, however objectionable their conduct.
The Joint Committee will also want to consider whether the benefits, if any, of the proposed new power justify the adverse international implications. This country played a leading international role in the drafting of the 1961 UN Convention on the Reduction of Statelessness. We have done much since then to encourage other nations to refrain from inflicting on their citizens what Lord Wilson, in the Al-Jedda case in the Supreme Court last year, described as “the evil of statelessness”. There are, regrettably, all too many dictators around the world who are willing to use the creation of statelessness as a weapon against opponents and we should do nothing to suggest that such conduct is acceptable.
The Government have now, very late in the passage of the Bill, brought forward their own amendment to provide for post-legislative scrutiny, and the Minister will speak to that. However, the noble Lord’s Amendment 56A does not say who will conduct this post-legislative scrutiny or indeed require that they are even independent of the Home Office. The noble Lord’s amendment allows for information in the scrutiny report not to be published. In any event—this is the crucial point—the Government’s Amendment 56A does not meet my concern because proper consideration of the implications of this proposed power to render people stateless is required before legislation is enacted and not afterwards.
Given the absence of pre-legislative scrutiny, the late stage at which Clause 64 was added to the Bill and the lack of clarity as to how this power will operate and with what consequences, we should refer it to a Joint Committee so that Parliament can be properly informed on these difficult and important issues. I beg to move.
The Deputy Speaker (Baroness Pitkeathley)
I must tell your Lordships that if Amendment 56 is agreed to, I cannot call Amendments 56ZA to 56ZD inclusive for reasons of pre-emption.
Lord Taylor of Holbeach
My Lords, it may be helpful if I explain the terms of our amendment at this stage and then come back to address the debate. I would not do so unless I thought that it would be helpful to the House.
I begin by reminding the House of the background to and context of the proposals in Clause 64. It is a fundamental duty of any Government to protect the British public and to maintain the security of the UK against a range of threats, as I think noble Lords will understand. This provision is intended to strengthen our position in a very important, targeted and limited way.
Sadly, a minority of individuals choose to become British citizens and then, later, seek to threaten our security, subvert our values and laws, and fight against our Armed Forces. It would be perverse if such people, while attacking our forces or terrorising civilians, could invoke our protection. People who have chosen to become British have taken an oath in which they pledge to respect the UK’s rights and freedoms, uphold the UK’s democratic values and fulfil their duties and obligations as British citizens. Despite this oath, some act in a way that is seriously prejudicial to the vital interests of the United Kingdom.
I know that noble Lords are concerned about the potential impact of leaving a person stateless and I accept that this is not something to be contemplated lightly. The Home Secretary acknowledged this when she introduced the clause and made clear how seriously she regards her personal responsibilities in this regard. However, again, I must remind the House that not only would every individual have the opportunity to challenge the decision on appeal but some who are deprived would be able to fall back on another nationality with no difficulty.
I listened to the arguments raised by noble Lords in Committee about the need for an independent reviewer and I am pleased to say that we have agreed to this. We have not yet decided who should conduct reviews. It may be appropriate to appoint the independent reviewer of terrorism legislation, currently David Anderson, to take on this additional task. We are mindful of the fact that if the review of deprivation power is added to the demands on him, it must not be to the detriment of his capacity to meet his existing important statutory duties. That is why the name of the independent reviewer is not in the amendment. None the less, it may be him.
Lord Lester of Herne Hill (LD)
Does that mean the Minister will accept that the word “independent” should be in his own amendment? It is in the amendment of my noble friend Lady Hamwee, but it is not in his.
Lord Taylor of Holbeach
I have just referred to the “independent reviewer of terrorism legislation”. We see the person undertaking this role to be independent. His role, I was going on to say, is to present a report of the reviews to the Home Secretary, who would lay them before Parliament. That could not be done unless the person was independent of the decisions being taken by the Home Secretary. I accept that point. We would then debate them in this House.
We propose a different reporting cycle to the one proposed in Amendment 57A. We recognise the importance of scrutinising the operation of the power at the earliest opportunity, hence the commitment to review after the first year. However, given the low number of orders—I have never made it other than plain that the number of cases is never going to be large in this area—that we expect to be made under the new power, we do not consider that subsequent annual reviews would be necessary or proportionate, particularly as every individual case can be subject to independent judicial scrutiny on appeal. So every individual case can be appealed before a judge. The Government will have an opportunity to address any concerns about the operation of the power arising from the initial report after 12 months, which is important, and the subsequent 36-month review period will then provide a much fuller evidence base from a large number of cases.
Amendment 56, tabled by the noble Lord, Lord Pannick, proposes that a parliamentary committee should be established in place of the introduction of the new power in Clause 64. I do not agree that a small committee of six persons from each House is the right place to consider this matter, not least because it would mean that we would have to unpick some decisions already made by this House after careful consideration of a report from the Liaison Committee about which Select Committees should be established in the new Session which makes it clear where the decision for this kind of nomination should lie. The appropriate place for scrutiny of these proposals is in the whole House considering a Bill, as we are doing now, and we should not shy away from making difficult decisions.
This is a matter of national security and we should be wary of unnecessary delay, which would leave a loophole to be exploited and create a barrier to effective action for what is likely to be at least a considerable number of months while the committee deliberated on this action.
That is my intervention at this stage. I hope it helps the House to consider the context of why the Government are not likely to accept the noble Lord’s amendment and prefer their own.
Baroness Lister of Burtersett (Lab)
My Lords, I wish to speak to Amendments 56ZA to—
Lord Brown of Eaton-under-Heywood (CB)
My Lords, my name is on the amendment so I wish to speak to it.
Baroness Lister of Burtersett
I also have an amendment in the group. I shall speak to Amendments 56ZA to 56ZD in this group. They have been tabled with colleagues from the Joint Committee on Human Rights, which recommended them. They also reflect concerns raised in a joint briefing from the Equality and Human Rights Commission, the Northern Ireland Human Rights Commission and the Scottish Human Rights Commission. But I should make it clear first that I would prefer Amendment 56 to be successful so that these amendments would become redundant. Indeed, these amendments reinforce the case for Amendment 56 because they underline how a number of key human rights issues remain unresolved. As the commissions observed, the consequences of having and using the power proposed in Clause 64 have not been carefully and thoroughly considered in respect of the UK’s compliance with its international and domestic human rights law obligations. I fear that this remains the case despite the welcome government Amendment 56A. It should not be the responsibility of an independent reviewer to put right defective legislation once it is in operation.
Amendment 56ZA seeks to ensure that any deprivation of citizenship is consistent with the UK’s obligations under international law. There has been some confusion in our debates so far as to what is meant by this. The JCHR accepts that Clause 64 is compatible with our obligations under UN conventions on statelessness, and not surprisingly the Government have prayed this in aid. But, in doing so, they have conveniently overlooked the JCHR’s concern that exercising the power in relation to a naturalised British citizen while they are abroad carries with it a very great risk of breaching the UK’s international obligations to the state which admitted that British citizen to its territory. These two points were at times conflated during our debates in Committee.
The Government’s legal position is that subject to one very limited exception, there is no general entitlement in international law for a state to deport a non-British citizen to the UK. On the other hand, Professor Goodwin-Gill, an acknowledged authority on the subject and already cited by the noble Lord, Lord Pannick, has said that the Government’s position on general international law is “manifestly incorrect”. This is not the place to go into disputes of legal interpretation, and as a non-lawyer I am certainly not the person to do so, but the point is that if fine legal minds are in dispute about whether it is compatible with international law to denationalise a citizen while they are abroad, surely it makes sense to allow a Joint Committee of both Houses to consider the matter before the proposal goes any further.
At this point I want also to put on the record the JCHR’s disappointment that the Government continue to refuse to inform Parliament about the number of cases in which the power to deprive a person of their citizenship has been exercised while that person is abroad. How can statistics affect national security? When the JCHR put this question to the independent reviewer in a recent public session, he responded by saying:
“My sympathies are very much with your request. If they will not tell them to you, I can only assume that they would tell them at least to a security cleared reviewer, who might in turn be able to make a recommendation that they may be released more widely”.
Will the Minister give a commitment now to make those statistics available to the independent reviewer, who he has said may indeed be given the power of review proposed in Amendment 56A?
Amendment 56ZB requires that the deprivation of citizenship is a necessary and proportionate response to an individual’s conduct. I would have thought that that was a rather basic safeguard for such a draconian power. The committee welcomed the Government’s indication that they would adopt a proportionality approach to deciding whether to exercise the power to deprive someone of their citizenship regardless of whether that would risk statelessness, but we believe that the importance of the concepts of necessity and proportionality as safeguards against arbitrariness are such that they should be in the Bill as conditions which have to be satisfied before the Secretary of State makes a deprivation order. We believe that this could make a real and practical difference in particular cases.
We also noted that it was hard to imagine the circumstances in which such a serious measure could ever be a necessary and proportionate response to a threat to the country’s economic well-being, as has been indicated by the Government. In Committee, the Minister promised to write to me with an example of when this might happen. I do not believe that I have received that example, so I should be grateful if he could provide it today on the record.
Amendment 56ZC would remove the retrospective power contained in the clause. The Government response to the Committee’s objection to this exceptional constitutional step was that a person does not have a legitimate claim of being unaware of the potential consequence of their actions because the person who would 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. Is not that “only thing” rather an important thing? The Government response makes light of the fact that it is the law that currently prevents a person being deprived of citizenship if it made that person stateless. Surely a citizen should be entitled to rely on what the law said at the time of their action? Again, this is an issue that a Joint Committee could usefully address.
Finally, Amendment 56ZD requires that this decision,
“must take into account the best interests of any child affected”.
No doubt the Minister will point to the very welcome Amendment 58 that explicitly writes the Section 55 children’s duty into the Bill. However, Section 55 applies only to children who are in the UK. Thus the duty would not apply if the child affected—who may be a British citizen—happens to be abroad at the time, as is quite possible. A child is a child, wherever that child happens to be. I cannot believe that a Government who have repeatedly reiterated their belief in the best interest principle are really saying that that principle does not apply if the child happens to be out of the country.
I made it clear at the outset that the best way to resolve the issues raised by the JCHR is through the appointment of a Joint Committee as provided for by Amendment 56. Indeed the JCHR itself complained about the lack of public consultation and its detrimental impact on the parliamentary scrutiny of this clause. As the noble Lord, Lord Deben, said in Committee,
“statelessness is one of the most terrible things that can befall anyone”.—[Official Report, 19/3/14; col. 212.]
The Minister has himself spoken of the evil of statelessness. In the words of Dr Matthew Gibney of the Refugee Studies Centre at Oxford University, to be stateless,
“may be a recipe for exclusion, precariousness and general dispossession”.
This will be the first measure adopted by the UK in recent years that would give rise directly to an increase in the number of stateless people in the world condemned to be dispossessed,
“without the right to have rights”,
as Hannah Arendt so memorably put it. This House has a duty to prevent this clause going any further without the full and detailed scrutiny it warrants by a committee of both Houses.
Lord Brown of Eaton-under-Heywood
My Lords, that Clause 64 is highly contentious and far from obviously a good idea is perfectly plain. It is plain, indeed, from the Minister’s own recognition in Amendment 56A that a review of its operation will be required even if the provision is enacted. The critical difference between the Government’s amendment and our own is that we say that there should be no such drastic provision enacted as this without its first being subjected to full and proper consideration, and that of course would happen under our amendment. This really is a matter of fundamental principle.
It is true to say, as the Minister noted in Committee, that someone can already be made stateless if deprived of their citizenship having originally obtained naturalisation by fraud. That is perhaps understandable. The person would never have obtained British citizenship in the first place but for having committed fraud. To render stateless someone who has already properly gained citizenship by naturalisation is, I would suggest, quite another matter. Of course one must recognise that the power would arise only in respect of those who had betrayed the trust which we as a nation put in them when we granted them naturalisation and who now themselves create a risk to national security. For my part, I can readily see the temptation to say, “Well, they, too, therefore can properly be made stateless”. This is a temptation which I truly believe that, as a nation proud—and rightly proud—of our human rights record, we should resist.
Baroness O'Loan (CB)
My Lords, I spoke on the first day in Committee but was unable to attend on the day this clause was discussed, as I was recovering from surgery. Nevertheless, as a member of the Joint Committee on Human Rights, I have put my name to these amendments because it is profoundly important that the Bill which comes to be enacted following your Lordships’ deliberations takes into account the issues which arise. As the noble Baroness, Lady Lister, has said, this would most effectively be done through the amendment of the noble Lord, Lord Pannick.
The outstanding issues have been graphically illustrated by the noble Baroness, Lady Lister, but I will refer very briefly to them. The Government have so far declined to provide any indication of the number of people whose citizenship was taken away from them while they were abroad, on the basis that they are all cases in which the information on which the Secretary of State relied was information which should not be made public. The Government say that they are “unable” to put the numbers into the public domain,
“for reasons of national security and operational effectiveness”.
However, I do not believe that the release of this number, or of many other numbers, will in any way impact on national security.
The Government also indicated in their response that it is anticipated that the new power will usually, and possibly always, be exercised on the basis of closed material. As noble Lords will recall, this is not a procedure which has commended itself to many and is one which carries with it the risk of unfairness. The Joint Committee remains concerned that exercising the power,
“in relation to naturalised British citizens while they are abroad … carries a very great risk of breaching the UK’s international obligations to the State who admitted the British citizen to its territory”.
The first two amendments to which I put my name, Amendments 56ZA and 56ZB, therefore seek to ensure United Kingdom compliance with our international obligations and to ensure the adequacy of the safeguards against arbitrariness in decision-making by requiring that, if it is to be done,
“the deprivation of citizenship is a necessary and proportionate response to such conduct”.
The Joint Committee on Human Rights does not accept the Government’s argument that the clause is compatible with its international obligations to countries that have admitted British citizens whose citizenship is subsequently removed.
The Government assert that out-of-country deprivations of citizenship do not engage the European Convention on Human Rights because it does not apply extraterritorially other than in exceptional circumstances. However, the case which they propose as an authority for this view is by no means an authority for the broad proposition that the ECHR is not engaged by an out-of-country deprivation of citizenship that leaves an individual stateless, as the case itself did not concern a deprivation which left the individuals concerned stateless. Moreover, there have been cases involving extraterritorial jurisdiction. I point your Lordships to the East African Asians case, in which the UK was found to have breached the right not to be subjected to “inhuman or degrading treatment” in Article 3 of the ECHR when it removed the right of abode in the UK from British citizens. Were Parliament to enact Clause 60 as drafted, it would be the first measure adopted by the UK in recent years that gave rise directly to an increase in the number of stateless people in the world.
Amendment 56ZC is about retrospectivity. The noble Baroness, Lady Lister, has already made the point that, under current law, a naturalised British citizen who does not also have another nationality is not liable to being deprived of their citizenship. Yet that is what the Government assert. The law says that they cannot be made stateless by deprivation of UK citizenship which has been conferred. The amendment seeks only to ensure that a person could not lose their citizenship as a consequence of actions which they were unaware could result in such loss, particularly since the information and intelligence which will lead to the decision-making will, in most cases, be withheld from them through the closed procedure.
The final amendment is about children. The Government do not consider an amendment such as this necessary to ensure that the best interests of any children affected are treated as a primary consideration. The Government cite the “children duty” in Section 55 of the Borders, Citizenship and Immigration Act 2009 as applying already to the Secretary of State’s decision-making in respect of deprivation decisions. However, as the noble Baroness has already said, the Section 55 duty applies only to children who are in the United Kingdom. It does not apply if the children affected, who may be British citizens, are abroad at the time, as they very well might be when the power is being exercised in relation to an individual who is abroad at the time of deprivation. Amendment 56ZD is very simple. It seeks to extend the duty in Section 55 of the Borders, Citizenship and Immigration Act to children who are outside the UK at the time when the Secretary of State makes the decision affecting them. Can the Minister explain how else such children could be protected?
Baroness Hamwee
My Lords, I have Amendments 57A and 57B in this group and share the concerns that have been expressed about the substance and transparency of the new clause and what the point of it is. In Committee, I asked that question rhetorically. I now ask—I hope it is not a rhetorical question—why we should not use a TPIM, as we have that legislation on the statute book. The conduct of the individuals concerned seems to fall into the same area, and this indeed raises the same issue—that the individual has not been prosecuted. If TPIMs are not to be used, it is bound to raise the suspicion that the power will mainly be exercised when an individual is out of the country.
The charitably funded Bureau of Investigative Journalism has identified 17 cases, mainly through FoI and court records, in 15 of which the individual was overseas at the time of the deprivation under the provisions as we now have them. If these individuals are regarded as such a high risk, I think we can assume that, having lost their status, they would be subject to close surveillance, certainly if they are in this country. If they are overseas, that might raise even wider matters.
I understand from officials—I thank them as well as the Minister—that if an individual, having been made stateless through this procedure, is in the UK, he will have limited leave to remain. I was referred to the relevant Immigration Rules. Under paragraphs 404 and 406, a person who is,
“a danger to the security or public order of the United Kingdom”,
will be refused leave to remain. Can the Minister tell noble Lords whether that person is then disqualified from leave to remain and what happens to him?
I understand from the old UKBA casework instruction on restricted leave that that will apply, and that restrictions and conditions can be imposed, including a residence restriction. Noble Lords will recall concerns about residence restrictions under the old control order regime. One of the concerns about those restrictions was the impact on the family of the individual subject of an order. Can the Minister explain what will happen to the family of an individual if, on the one hand, he is in this country and if, on the other, he is abroad? Does the family qualify for leave to remain in the circumstances of the individual being a danger to security or public order, as I have quoted? I mention all this because the impact on families was a concern about control orders, TPIMs and terrorist asset-freezing. Reporting on that has been a component in reviews, which we have seen, by successive independent reviewers.
The Bureau of Investigative Journalism mentioned to me two examples of the impact on families. One was of a Sudanese-born man who lost his citizenship. The bureau told me that a Home Office official said in evidence in court that the Government waited until he was overseas before removing it. He had taken his wife and four children to Sudan for the summer. That left the children effectively exiled as well. The other example was of a British-born man whose youngest son was born here and who remains a British citizen. He has developmental disorders and is dependent on both his parents. His mother wishes to return to the UK for treatment for the son but she cannot do so without her husband. One does not want to be too hearts and flowers about this. The issue that we are being asked to consider is a tough one, but I think that the issue goes wider than just the individuals involved. I asked the Minister whether individuals and a family might be left without resources and so left destitute. Can he share with the House the Government’s position on that, particularly if the deprivation has been made while the individual is abroad?
Baroness Kennedy of The Shaws (Lab)
My Lords, I have made a number of speeches on this subject at different stages of the Bill and I do not want to take too much of the House’s time. I welcome the idea of an independent reviewer being involved, but I say to the Minister that it is not enough. As he will see, my name is on a number of the amendments that were referred to by my noble friend Lady Lister. I, too, am a member of the Joint Committee on Human Rights. The amendment tabled by the noble Lord, Lord Pannick, is really the course that I would urge this House to take.
The whole idea of making people stateless is unsupportable as a measure, but that fact does not place barriers in the way of the Government in their efforts to deal with terrorism. Terrorism is a serious threat nationally and internationally, and the Government must act in the interests of our safety. Opponents of this move, of whom I am one, are not objecting to removing citizenship from people who have two passports. If someone already has dual nationality—and not just the possibility of being able to get it from somewhere else because they have a father or grandfather who is of a different nationality—then on the right evidence and with due process there is no reason why citizenship cannot be removed from someone whose conduct has been shown to be a threat to our national security. The Supreme Court recently did precisely that in relation to a Pakistani-British family living mainly in Pakistan.
However, I want to remind this House why the idea of rendering someone stateless is so repugnant. After the horrors of the Second World War, the international community had the opportunity of reflecting on the whole notion of the Wandering Jew—as though “wandering” was a voluntary condition—and the idea of what it meant to have no secure home and of living with the mental torture of insecurity. The international community was conscious of the many other people forced to live lives of uncertainty—because it is a weapon used by tyrants and dictators—knowing that they could be ousted at any moment because of the instability of their status. We were all alert to how such persons lacked full rights if they were rendered stateless, and that was why the convention to end statelessness came into being. Britain was one of the countries at the forefront of such moves, which is why we have been a beacon in relation to this issue.
It is interesting that Germany, reviewing its own conduct in relation to statelessness after the Second World War, has made it part of its constitutional obligations that it will never remove citizenship once it is granted. The United States, too—which, of course, became a haven for those seeking sanctuary—never removes citizenship once it is granted and believes strongly that people should not be rendered stateless.
Of course, if you are not a citizen of anywhere, you cannot have the rights that citizenships confers on you—the very right to have rights, as has been mentioned already. The presumption should always be that if you commit crime you should be tried and jailed, and that there are steps that can be taken to deal with criminality and behaviour that is a threat to states. But there is also a presumption that if something happens to you abroad you can insist on contact being made with your embassy or consulate so that your rights can be asserted. It is not just about providing protection, it is about seeking to make everyone subject to the rule of law—the thing that Britain is renowned for. The presumption should always be that law is involved in these processes.
I have repeatedly told the story of Mahdi Hashi, who had his citizenship removed while in Somalia. Two other persons from whom Britain had removed citizenship were droned—killed by the use of drones—in Somalia. We should reflect on that; it was evidence given to the Joint Committee on Human Rights by the UN rapporteur on counterterrorism only a week or so ago. Mahdi Hashi was advised through his parents of having lost his citizenship and that he had a month to appeal. Somalia has no British embassy. He travelled to Djibouti, where he was picked up by the secret police. On saying that he was British, he was told that inquiries had been made and that Britain was denying any obligations towards him. We washed our hands of him—Pontius Pilate lives on.
Mahdi Hashi was interrogated at length—no lawyers, no court processes. He was then handed over to the CIA and further interrogated—no lawyers, no court processes. He had a hood put on his head and was transported to the United States of America—no extradition processes. This was essentially another rendition. But Britain can now claim that we were not complicit because he was not our citizen. Is that the purpose of this change of law, that we might be able to do things that make people vulnerable and deny them their rights, creating yet more black holes where no law obtains but where we cannot be accused of complicity?
We in Britain have always claimed our commitment to the rule of law; indeed, we like to think of ourselves as having parented its existence. You might ask: is this man, who is now sitting in a jail in New York, a bad guy? I cannot tell you. No evidence is in the public domain. But it matters not whether he is a bad guy—that is the important thing to have in mind. We are supposed to believe in due process, the rule of law and international human rights. By making him stateless, we stripped him of the safeguards that any human being should expect. That is not how we normally behave. That is not an acceptable way for a civilised nation to behave.
This is an issue of profound principle and much more care needs to be taken than we currently see in considering the implications of this in terms of what message we are sending to the world, what the position is with regard to international law, what it means to make someone stateless, and what other states, where such persons end up, might feel about our having made such persons stateless. All those matters should persuade us that there should be a committee set up and that this needs much further reflection, because there are principles involved that should be seriously considered by us all because it matters about the nation that we live in.
Lord Lester of Herne Hill
My Lords, I was not able to speak in Committee but, briefly, I will make a point that I think has not yet been made.
My noble friend the Minister reminded us, rightly, of the fundamental importance of national security and of combating the evil of terrorism by all effective means. I do not think that I needed to be reminded of that but he was right to remind us all the same. Equally, the noble and learned Lord, Lord Brown, reminded us of another fundamental matter, which is the parliamentary scrutiny of draconian powers before they enter the statute book.
If I were persuaded, as the Minister has suggested, that this debate and previous debates are adequate as a substitute for effective pre-legislative scrutiny, I would not support the noble Lord, Lord Pannick, but I am not persuaded of that. The issues are extremely complicated and even though I think that I am some kind of international lawyer, I am certainly not going to analyse what Professor Guy Goodwin-Gill has said, even though I agree with him, or bore the House, as lawyers frequently could do, by going into a lot of technical detail.
What I want to do, and which gives rise to a question, is to deal with a point that the Joint Committee on Human Rights, of which I am a member, raised in our report and the way that the Government responded to it. In our report, we drew attention to the relevance of the European Convention on Human Rights and its various provisions, and we disagreed with the Government, whose position was that the European Convention on Human Rights had nothing to do with the issue. We went into the matter in paragraphs 45 and 46 of our report. In footnote 25 we referred to a case in which I was counsel for the applicants in the great case of the east African Asians against the United Kingdom.
That was a case which involved not national security but racism. It was a case where, to their shame, the then Labour Government persuaded both Houses of Parliament in emergency debates over three days and nights to take away from 200,000 British Asians, who were citizens of the United Kingdom and colonies, their right to enter and live in their only country of citizenship. By doing that, Parliament made 200,000 British citizens de facto stateless, even though a promise had been given to them by the previous Conservative Government that if they did not become local African citizens, they would be given the right to settle in this country. That promise was broken because of an extremely effective racist campaign mounted by Enoch Powell and Duncan Sandys, which led the Labour Government, with the support of both Houses, to pass that obnoxious legislation.
When we challenged that successfully before the European Commission of Human Rights, we relied upon two American cases. One was called Trop v Dulles. That was a case where under United States law somebody had been deprived of his American citizenship by Mr Dulles. The US Supreme Court said that under the American constitution, that was impermissible. The European Commission of Human Rights was impressed by that and it held that our Parliament had subjected British citizens to treatment that was racist and degrading.
Lord Paddick (LD)
My Lords, I wish to speak mainly to Amendment 56. I apologise to the House that I have not spoken in previous stages of the Bill although I have been present for the overwhelming majority of the debates in this House. I rise somewhat reluctantly in support of the Government as I fully understand some of the concerns many noble Lords, including many of those on my own Benches, have on this issue. I have been struggling to balance both sides of the argument in this complex area. However, I have listened carefully to the noble Lord, Lord Pannick, and I have some issues with what he has said this afternoon.
My understanding is that the Secretary of State already has the power to revoke British citizenship where the person concerned has acquired such citizenship through fraudulent means, whether it makes them stateless or not. If it is subsequently discovered that it is simply not true that the individual is entitled, and never has been entitled, to British citizenship, can it be right that they should be allowed to keep it, just because that would otherwise make them stateless? The noble and learned Lord, Lord Brown of Eaton-under-Heywood, said this afternoon that that is understandable. The Secretary of State already has the power to revoke British citizenship from a naturalised British subject if their conduct is seriously prejudicial to the vital interests of the UK, provided that that does not make them stateless. Therefore, if it is discovered that a naturalised British subject has been engaged with the Taliban in blowing up British soldiers in Afghanistan, for example, can it be right that they should be allowed to keep their acquired British citizenship?
The new power the Secretary of State seeks through Clause 64 is the power to revoke British citizenship from a naturalised British subject if their conduct is seriously prejudicial to the vital interests of the UK even if it does make them stateless. If it is right that a naturalised British subject should have their British citizenship revoked because they have been engaged with the Taliban in blowing up British soldiers in Afghanistan, can it be right that they should be allowed to keep that British citizenship just because it would otherwise make them stateless?
Some groups have said—indeed, the noble Baroness, Lady Kennedy of The Shaws, for whom I have the utmost respect said it this afternoon—that it is disproportionate in any circumstances to make somebody stateless, and that it is rogue states and autocratic Governments which have used powers to make their own citizens stateless. That argument has been used to support not giving the Home Secretary these new powers. There is no power, and the Government are not seeking a power, to make stateless those born in this country or those entitled to British citizenship from birth. Here we are talking about citizenship that has been given to those individuals by the Secretary of State, which the Secretary of State is seeking the power to take away from them if—and only if—their conduct justifies such revocation.
Some groups have argued that there is a wealth of terrorism-related offences that a person can be prosecuted for as an alternative to revocation of citizenship. My noble friend Lady Hamwee has suggested that TPIMs might be another way of dealing with this issue. Clearly, where there is evidence that can be placed before a court, and the individual is in the UK and can be prosecuted, every effort should be made to prosecute them. However, there will be a small number of cases where intelligence of involvement in terrorism cannot be made public.
I have no inside knowledge of the policing of terrorism but, as an example, it is in the public domain that in the past the security services have infiltrated terrorist organisations, and others within such organisations have provided intelligence to the security services about other individuals’ involvement in terrorism. In such cases, the lives of those who provide such intelligence from within would be put at risk if that intelligence were made public. That is, of course, not to say there should be no judicial oversight of such decisions. Anyone deprived of British citizenship, as my noble friend the Minister said, has a full right of appeal and those cases involving closed material would be heard by the Special Immigration Appeals Commission. I understand that, as these appeals will be heard by SIAC, legal aid will be available to those involved. I hope that the Minister will be able to confirm this.
I also think it is important that there is further oversight of the way in which these powers, if granted, would be used. While I largely accept the case for the Secretary of State having these powers, we have seen in the past the possibility of mission creep and testing the boundaries of powers given to Ministers. That is why I am very pleased to see the Government’s amendment, at the suggestion of my noble friend Lady Hamwee, to ensure that, for example, the independent reviewer of terrorism legislation conducts regular reviews into the use of these powers.
Even if it is necessary and proportionate to deprive somebody of citizenship so that it makes them stateless—and I accept that some noble Lords will argue that making someone stateless is disproportionate in any circumstances—some have asked what benefits this would bring. It has been argued that if citizenship is revoked while the individual is abroad, that would allow terror suspects to be loose and undocumented in whatever country they happen to be when their citizenship is revoked. Is it not the case that if they retained a valid British passport, these dangerous people are more likely to be able to travel at will to whatever country they like in pursuit of their terrorist ends? It has also been argued that it will make it more likely that dangerous people who are temporarily abroad will be sent back to the UK because they no longer have a British passport.
Contrary to the briefing provided by the Government, I accept that if someone entered a country with a British passport that is then revoked when they try to leave that country they are most likely to be sent back to the UK, if they do not or cannot regain their original nationality. This seems to be the area about which most noble Lords are concerned this afternoon: that were the UK to refuse admission, it would be a breach of the UK’s international obligations. I would very much like some reassurance from my noble friend the Minister as to what would happen in such circumstances. However, if they were to return to the UK they can be given limited leave to remain, which means that they can be subject to restrictions such as reporting any changes to their employment or address, or being required to report regularly to a police station. On the other hand, if they still hold British citizenship it would be easier for them to be involved in the development of terrorist networks, for example, or in providing support for terrorism or training or assistance in planning terrorist attacks without restriction.
Making someone stateless is a very serious matter that should be contemplated only in the most extreme of circumstances. I believe that such extreme circumstances can and do arise and that the Secretary of State should be allowed to exercise such powers without further delay, subject to the safeguards that already exist and those proposed by the government amendment.
Lord Sherbourne of Didsbury (Con)
My Lords, I intervene briefly to support government Amendment 56A and Clause 64 itself. I have followed closely the important and impressive debates on this clause in Committee and today. By the way, anyone who doubts the value of the House of Lords should read those speeches, because they demonstrate clearly this House’s concern for the rights of the individual.
The issue with which this House is grappling, not for the first time, is how to strike the balance between national security and the rights of the individual, in particular the situation that can arise when the Home Secretary of the day has reason to believe that an individual poses a grave threat to the UK’s national security but when, for various reasons, that person cannot be charged and brought to court. This is a dilemma with which Parliament has had to wrestle in recent years. Where a person poses such a threat but cannot be brought to court, it is right that Parliament should concern itself with the treatment and rights of that individual and the practicalities, as this House did on 17 March and is doing again today. I have had to ask myself: are there any instances of a Home Secretary, whether Labour or Conservative, depriving a person of citizenship on scant evidence and without good reason?
Baroness Berridge (Con)
My Lords, I declare an interest as a trustee of the think tank British Future and as a member of the Joint Committee on Human Rights. In the time that has been allowed to the Joint Committee to scrutinise this legislation and whatever mechanism your Lordships’ House chooses, whether it is post-legislative scrutiny or the Joint Committee option, there are three brief matters on which I would still like to hear the comments of my noble friend the Minister. I thank him for outlining the important duties, privileges and obligations that naturalised British citizens have. As an 18 year-old on a gap year, I took what was perhaps an unwise journey to northern areas of Ghana, which were known at that time for their instability, but I had most wisely packed my British passport. When civil disturbance arose, I literally clung to my British passport, knowing that of course the embassy would help to rescue me if I needed it. At that young age, I realised what a privilege it indeed was to have British citizenship and a passport.
I will outline those three brief matters. First, much mention has been made of the potential to undermine the position of the United Kingdom in relation to human rights laws on the international stage. It is important to give two current examples. In November 2012, 31 Bahraini citizens were deprived of their citizenship for “undermining state security”. When given the opportunity to sit in front of some Bahraini politicians, I outlined the position in relation to those cases, which arose in the context of civil protest. I was met with the retort, “Well, you do this too”. “Yes”, I said, “but we don’t do it to leave someone stateless”. The second example would be that there has been much mention in your Lordships’ House of the plight of the Rohingya Muslims in Burma, who do not enjoy citizenship. I therefore struggle to see how representations could be so forcefully made about them being entitled to citizenship if the Burmese Government are able to use similar language to that being outlined in the legislation.
Secondly, although it may well be that this clause does not place us in breach of our treaty obligations in international law, as I understand it neither would reintroducing the death penalty, yet moving to re-enact that is not a trajectory that many of your Lordships would wish to see. One of the circumstances that were not commented on in Committee in your Lordships’ House is this situation. If it seems that we can deprive people of their nationality while they are, for instance, in Syria and do not then have to readmit them to the UK, what would happen in the unfortunate situation of having people within our borders who have managed to get some kind of visa to be in this country and are perhaps unsavoury if their country of origin deprives them of their citizenship, so that we are left with a little oasis of stateless citizens in the UK? I am slightly too young to remember properly the tit-for-tat diplomatic spats of the Cold War, but is it really too much to imagine that there could be a tit-for-tat deprivation of the citizenship of people in different jurisdictions around the world?
Thirdly, I would like to outline the impact on the next generation, which has perhaps not been fully explored in relation to this new power. There are, of course, implications for the nationality and citizenship of the children of those who have been deprived of their citizenship. I am grateful to my noble friend the Minister for clarifying that the power will not apply, as I understand it, to people who acquire their citizenship by way of registration, who are often the children of someone who is naturalised—such people who are under 18 acquire their citizenship by registration. I would be grateful if my noble friend the Minister could outline the views of the Government about the effect on the next generation of children, who potentially have parents who are stripped of their nationality. This would make contact with that parent perhaps not impossible but significantly more difficult. Perhaps we might be at risk of sending a message to those children and perhaps having the same unfortunate effect as did certain of the powers that we used in Northern Ireland when we had a similar security situation.
Baroness Smith of Basildon (Lab)
My Lords, this has been a powerful debate. I am speaking to the amendment that I have been pleased to sign, along with the noble Lords, Lord Pannick and Lord Macdonald, and the noble and learned Lord, Lord Brown. There is a sharp contrast with the time which was allowed to debate this issue in the other place.
I am grateful to the Minister for his comments at the beginning of the debate. I do not want to repeat the points which have been made, particularly those made more eloquently than I could do by those with legal expertise. I want to emphasise a number of points, particularly around the issue of scrutiny, which was referred to by the noble Lord, Lord Lester. This new government clause was introduced—with other amendments—in the other place just 24 hours prior to Report, all to be considered in a five-hour debate. It therefore did not receive the scrutiny that such a substantial and far-reaching clause needs and deserves. In the other place the Home Secretary admitted that,
“Members have not had as long to consider it as they would perhaps have wished”.
The Home Secretary claimed to have been “incredibly generous” in repeatedly giving way to respond to MPs’ concerns and questions, although I do not think that that was a particularly wise turn of phrase. As was made clear by my colleague in the other place, David Hanson, we were seeking to ensure that the consequences of such a significant clause had been properly thought through. The response from the Home Secretary was that the Government,
“recognise that there are consequences, and they have been considered”.—[Official Report, Commons, 30 Jan 2014; col. 1047-48.]
However, when we debated this in Committee, the responses from the Minister did not provide your Lordships’ House with the assurance that all the consequences had been considered. The noble Lord, Lord Sherbourne of Didsbury, partly quoted my comments in Committee, and I will reiterate the same point that everyone in your Lordships’ House wants to do everything possible to protect UK citizens from potential terrorist activity, both at home and abroad.
We also have to recognise that we have international obligations in this regard, as terrorism is a global threat. We all know that Clause 64 is a response to the Al-Jedda judgment by the Supreme Court, as was referred to by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. It was clarified that the Secretary of State could not withdraw citizenship from an individual if it would leave them stateless. Clause 64 seeks to remove that barrier, and would allow the state to make an individual stateless if they are naturalised British citizens and the Government consider that they are involved with actions prejudicial to the interests of the UK. That would mean that either the former citizen remains locked in the UK, unable to leave, work or receive any support, but the Government still have obligations to that individual, or that they would be left stateless in another country and obviously not able to return.
When bringing forward such an exceptional power as this, the Government have a duty to consider the wider implications and the impact it will have. We understand that actions to tackle a threat to national or international security do at times curtail the freedom of an individual, but when such a measure is proposed it must be fully and properly considered. The process, the impact and the implications must all be fully thought through and understood.
The noble Lord, Lord Taylor, recognised the seriousness of this issue when we debated it in Committee. He said that it was right that we should have a thorough debate on the issue, after it was introduced at such a late stage and almost slipped in at the last minute in the Commons. However, the noble Lord has rejected the proposal in our amendment before the House today for scrutiny by a Joint Committee of both Houses, a dedicated committee to examine this in detail. He said that it should be debated during the passage of a Bill in your Lordships’ House.
For a debate to be effective, there must be answers to the questions raised. We are not a debating society. As the Minister has in effect acknowledged, our role in Parliament is to scrutinise and, if necessary, revise legislation. The noble Lord, Lord Lester, said in his comments that it was a complex issue. In Committee I and other noble Lords asked a number of questions in an attempt to understand how this clause would operate in practice and the impact on the individual, on public safety and on national and international security. To be effective in that scrutiny—the very scrutiny to which the noble Lord referred when introducing his amendment and rejecting our amendment—the Government must address the points we made, and answer the questions. On this very far-reaching clause, they have failed to do so.
In Committee we sought to understand the process and the full implications. What would the process be for making an order under the clause, and what would “seriously prejudicial” mean? What criteria would be considered by the Secretary of State, and what would be the process by which she would make her decision? I raised the specific case of Y1 with the Minister. In that case it appeared that the Home Secretary did not agree with the professional advice of the security services, following discussions with Cabinet members. I was not suggesting that that was necessarily wrong, but I wanted to understand if decisions could be made on political grounds. I did not receive much clarity on these points, but the Minister replied that this would affect only a small number of individuals. I have never considered that a few people being affected by a power makes it less important to consider the implications.
The Bureau of Investigative Journalism has identified 15 cases, to which the noble Baroness, Lady Hamwee, also referred, in which the person was overseas at the time. It has also shown that the use of that power gradually increased under this Government, from roughly one case each year in 2010 to eight in 2013. However, when asked for more precise information—for example, on how many of the individuals whose citizenship was removed were in the UK and how many were outside the UK at the time the decision was made—the Minister refused to give us more detail on the grounds of national security. I am not sure that I fully understand why giving the numbers involved, rather than specific information, is a danger to national security.
The Government have clarified that this new power could be used against people whether or not they are in the country, and whether or not they can acquire another nationality. They have stated that they would expect those who can acquire another nationality to seek to do so, but have no answers on what happens if that fails. There remains a lack of clarity on what happens to people who have their citizenship removed while they are in the country. This is an important point, as this clause is designed to deal with those whose activities are of concern, and indeed those who may be a danger.
Mr James Brokenshire, the new Immigration Minister, said that in the event of a person remaining in the UK they could be granted limited leave, “possibly” with conditions, and the UK would have certain legal international obligations under the UN convention. He expanded on that in a letter to the Constitution Committee, in which he wrote:
“For those living in the UK, we may grant another form of immigration leave, depending on the person’s circumstances … Crucially this will not attract all the privileges associated with being a British citizen; they would not be entitled to hold a British passport, to vote or to have full access to public services”.
The Minister confirmed this in writing to us after the debate. He also added that, in certain circumstances when the person cannot return to their country of origin, “it may be necessary” to provide them with exceptional leave to remain of some kind or another. Does this mean therefore that people would be trapped here, and we would not be able to deport them but would still have obligations towards them? How does that help to ensure that national security is protected?
What happens if someone is in another state when the decision is taken? What happens if they cannot be contacted? The Minister said that they would have the full right of appeal, but they cannot have this if they cannot be contacted. How can someone be notified in such circumstances, or avail themselves of any review of the decision? What about children who may be left behind? What will be the obligations of the state these children are in when their parent is made stateless? What will be the obligations of the state in which the person is made stateless?
Lord Taylor of Holbeach
My Lords, I am sorry that the noble Baroness feels that my responses have been inadequate. It is a matter of pride that I have sought to answer noble Lords’ queries during the passage of this Bill. The noble Baroness has never implied that anything I have supplied her with has been inadequate, and I am sorry if she has taken that view.
Baroness Smith of Basildon
At all times the Minister has sought to be courteous and to give as much information as possible. However, he will recall that in Committee I asked questions and he apologised for not having available some of the information needed to answer them. It is no slight on him personally; he has made a great effort to try to answer. It is just that there have not been answers to some of the questions I have asked.
Lord Taylor of Holbeach
I have written a report on every day of this Bill, and I will be writing about today’s debate to tell all noble Lords of those things that have arisen where I am not in a position to give an answer. The noble Baroness is very generous. Indeed I do my best but there is a limited amount of time and I do not want to take up too much time on an issue that noble Lords have debated with great skill for the elucidation of the House.
As I made clear in my earlier intervention, this is an important and sensitive issue that goes to the heart of ensuring that the Home Secretary has available to her the necessary powers to respond to changes and threats to our national security. Amendments 56ZA and 56ZB were discussed in Committee, and I can assure the House that this power was drafted taking full account of the need to ensure consistency with our international obligations. The Home Secretary will personally review every case and in doing so will of course consider, in line with our obligations under the ECHR, whether deprivation is a necessary and proportionate action in response to the conduct of the individual and the threat that they pose to the UK. I hope noble Lords will be reassured by our proposal for a statutory independent review that will be able to look at these matters as part of its scrutiny of the operation of this power.
The noble Baroness, Lady Lister, asked a number of questions. She asked whether the independent reviewer would have access to information on whether the deprivation action was taken while the person was in the UK or abroad. The independent reviewer will be provided with information on all aspects of the operation of the power, including the circumstances—
Lord Taylor of Holbeach
Perhaps I may just finish my answer. I think that it will be helpful to the noble Baroness if I do so. I will then give way.
The independent reviewer will be able to look at and will be provided with information on all aspects of the operation of the power, including the circumstances of individual deprivation decisions.
Baroness Lister of Burtersett
I am sorry to interrupt the Minister but I was not asking whether the independent reviewer would be allowed to do that once this law has come into force. I was asking the question that we have asked again and again about those who have already been deprived of citizenship. We have been told that we cannot have that information for security reasons, so the independent reviewer has suggested that perhaps he could have the information about those who have been deprived of citizenship under the existing legislation when they were abroad.
Lord Taylor of Holbeach
I see the point that the noble Baroness is making. I see no reason why not. If it has security connotations then perhaps it cannot be made public. However, our idea is that the independent reviewer should not be denied information that it considers important to perform its statutory duties as required by our amendment.
The noble Baroness asked about an example of where an individual would be deprived of citizenship on grounds of economic well-being. I replied to the noble Baroness, Lady Smith, on 26 March and a copy would have been sent to the noble Baroness, Lady Lister. In my letter I agreed that any situation which threatens vital economic assets is likely to be covered by terrorism considerations, but for that very reason we cannot rule out the possibility that it may be properly considered under this power.
The noble Baroness asked whether this goes against the UK’s international obligations to those countries that allow entry to British citizens who are subsequently deprived of that nationality. In the vast majority of cases, it does not. However, the Government note that the 1930 special protocol concerning statelessness created limited obligations in this respect. These obligations are limited to the 11 states that have ratified the protocol and apply only if certain conditions are met.
A number of noble Lords mentioned Professor Goodwin-Gill’s paper and his illustration that it was contrary to international law. Professor Goodwin-Gill has some expertise on this topic since he was part of the legal team representing Al-Jedda, but on this topic we believe that he is wrong. He based his analysis in large part on the opinion of Judge Read in the 1955 International Court of Justice case of Nottebohm, but Judge Read’s judgment was a dissenting judgment. We cannot accept the conclusions which Professor Goodwin-Gill derived from it. There is a very limited basis for an obligation to readmit people deprived of citizenship in very limited circumstances, as set out in Article 1 of the 1930 special protocol concerning statelessness. The limited number of state parties that have ratified this convention, together with the lack of state practice conforming to its provisions by states that are not party to the convention, shows that it does not constitute customary international law.
Lord Avebury
I am most grateful to my noble friend. As he has gone into some detail on Professor Guy Goodwin-Gill’s paper, would it be possible for him to lodge a paper in the Library, commenting on all the points raised in it? The Minister also quoted the views of the UK representative when the special protocol was agreed, who was very much in support of the idea that depriving people of their citizenship while they were abroad is illegal.
Lord Taylor of Holbeach
I will be happy to do that. However, I am conscious that noble Lords have been asking for answers today and to give what my noble friend has asked for would probably take the rest of the evening. I do not intend to do that, but I will do it in writing and lodge a copy in the Library.
Lord Lester of Herne Hill
I am sorry, but a few minutes ago the Minister said something about obligations under the European Convention on Human Rights. Am I right that the Government still take the view that the convention has no application extra-territorially if the Minister takes away someone’s citizenship when they are outside the country?
Lord Taylor of Holbeach
I was coming to this. I have been asked a lot of questions and I intend to answer them. The noble and learned Lord, Lord Brown, asked whether this would affect the UK’s contribution. It may be useful to point out that the UK is not alone in proposing this approach. Belgium and Ireland, among others, provide for the prospect of making a person stateless in circumstances analogous to what we are proposing. The noble Baroness, Lady O’Loan, and the noble Lord, Lord Lester, asked about the JCHR. Last year, in S1 and others v the Secretary of State, SIAC rejected the idea that Articles 2 or 3 would be engaged extraterritorially. Even if Article 8 were engaged extraterritorially, the interference would be lawful if it was necessary and proportionate. The high threshold set out in Clause 64 means that interference would be proportionate so I regard this as a rather academic point. I hope my noble friend, who does not lack academic credentials, is prepared to accept this. This was decided in 1973. This was like the case of the people in east Africa, to which my noble friend referred.
The noble Baroness, Lady Kennedy, made a passionate speech on the evils of statelessness after the Second World War. The UN Convention on the Reduction of Statelessness was agreed in 1961. The view of the United Nations was that, in extreme circumstances, people could be left stateless, as the JCHR accepted. This proposal is compatible with that UN convention. My noble friend Lady Hamwee asked what would happen to people in the UK who were made destitute. The UK would continue to have human rights obligations towards those in the UK and could not allow them to become destitute as a result of its actions. She asked whether these individuals were exempt from leave under the immigration laws and what would happen to family members. Family members would still be able to apply for leave within the rules, including the statelessness provisions, and would not be subject to restrictions unless their conduct justified it. My noble friend Lord Paddick, in a brave and thoughtful speech, said that legal aid is allowed for the appeal process. My noble friend Lady Berridge asked whether other countries will render people stateless in the UK on a tit-for-tat basis. Other countries can already do this and those affected would be subject to our immigration rules for stateless people. This clause will not provoke extra cases because, as we have stated, it will be used only for a few extreme cases. In any event, we believe that many will go on to acquire another nationality.
Lord Pannick
I thank all noble Lords who have spoken in this debate, particularly the Minister, whose door has been open throughout the passage of the Bill to all noble Lords concerned about particular clauses. He has given a characteristically full and helpful response to the amendments.
In his first intervention in this debate, the noble Lord, Lord Taylor, said that he recognises the importance of scrutiny at the earliest opportunity and that Amendment 56A therefore allows for a report one year after the passage of the Bill. The earliest opportunity for scrutiny is before we confer this power on the Secretary of State, not after we confer this power on the Secretary of State. The Minister then said that the place for proper scrutiny was in this House, not in a Joint Committee. But for this House to do its job properly depends on adequate pre-legislative scrutiny so that we have the information adequately to assess the implications of Clause 64. I am particularly grateful to the noble Baroness, Lady Hamwee, and to other noble Lords, for identifying a large number of questions that the Joint Committee no doubt will wish to consider.
The Minister also suggested that delay while we wait for a Joint Committee report might somehow be damaging. I find that very difficult to understand. Clause 64 would remove a restriction on creating statelessness, which has been part of our law since 2003. The Minister has not told us how many, if any, cases there are where the Secretary of State would wish to remove nationality on public good grounds but is currently prevented from doing so because it would cause statelessness. In any event, I do not understand—and it is plain from the debates that I am not the only the noble Lord who does not understand—how removing nationality to make a person stateless is going to assist national security by making it easier to control undesirable people or remove them from this country. That is one of the crucial questions that a Joint Committee will need to address.
In any event, a Joint Committee could report by, say, October, and if the Government see fit in the light of such a report, they can bring forward a short Bill in the next Session. The Minister cannot seriously suggest that the Queen’s Speech in June will be so full of material that the Home Secretary will be told in the autumn, in the light of a Joint Committee report, “We’re very sorry, but there’s simply no room to come back to this matter”. Let us be realistic about this issue.
Finally, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, Amendment 56 is a modest amendment. It does not ask this House to take a final view on whether the proposed new power should be conferred on the Home Secretary. What it does is to invite this House rather to ensure that Parliament is fully informed of the benefits, if any, and the detriments, before the law is changed. Given the importance of the subject matter and the difficult questions that continue to exist as to the practical and legal consequences of the conferral and exercise of this new power, I think that that is a step that we should take to require proper pre-legislative scrutiny.
This is a matter of fundamental principle and I wish to test the opinion of the House.
Lord Taylor of Holbeach
“( ) After section 40A of the British Nationality Act 1981 insert—
“40B Review of power under section 40(4A)
(1) The Secretary of State must arrange for a review of the operation of the relevant deprivation power to be carried out in relation to each of the following periods—
(a) the initial one year period;(b) each subsequent three year period.(2) The “relevant deprivation power” is the power to make orders under section 40(2) to deprive persons of a citizenship status in the circumstances set out in section 40(4A).
(3) A review must be completed as soon as practicable after the end of the period to which the review relates.
(4) As soon as practicable after a person has carried out a review in relation to a particular period, the person must—
(a) produce a report of the outcome of the review, and(b) send a copy of the report to the Secretary of State.(5) The Secretary of State must lay before each House of Parliament a copy of each report sent under subsection (4)(b).
(6) The Secretary of State may, after consultation with the person who produced the report, exclude a part of the report from the copy laid before Parliament if the Secretary of State is of the opinion that it would be contrary to the public interest or prejudicial to national security for that part of the report to be made public.
(7) The Secretary of State may—
(a) make such payments as the Secretary of State thinks appropriate in connection with the carrying out of a review, and(b) make such other arrangements as the Secretary of State thinks appropriate in connection with the carrying out of a review (including arrangements for the provision of staff, other resources and facilities).(8) In this section—
“initial one year period” means the period of one year beginning with the day when section 40(4A) comes into force;
“subsequent three year period” means a period of three years beginning with the first day after the most recent of—
(a) the initial one year period, or(b) the most recent subsequent three year period.””
Lord Taylor of Holbeach
My Lords, if the Opposition were prepared to accept Amendment 56A, I should be prepared to move it.
Baroness Smith of Basildon
My Lords, I am not sure whether the noble Lord has moved his amendment formally but, as the matter has been referred to a committee, should this not also be referred to a committee? It would seem more sensible to us that, if a committee were discussing something, it would then decide the nature of any review that would take place after implementation.
Lord Taylor of Holbeach
The point that I was trying to make was that, if this were to form part of the substantive Bill, it would be possible for it to be considered as part of the Government’s proposals in this respect. I do not want the House to have another vote on the issue, but I feel that this is not in conflict with the amendment successfully moved by the noble Lord, Lord Pannick. However, I am told from the Box that there is no need for Amendment 56A, so I will not move it.
Lord Marlesford
“Provision of information relating to citizenship
(1) A condition of the issue of a new passport to, or the renewal of a passport of, a British citizen by Her Majesty’s Passport Office is that the citizen supplies details of their citizenship of other countries and of passports held relating to any such status at the time of application.
(2) The bearer of a passport issued by Her Majesty’s Passport Office must supply that Office with information regarding any acquisition or loss of citizenship of another country within one month of such a change.
(3) Information gathered by Her Majesty’s Passport Office for the purposes of subsections (1) and (2) shall be made available—
(a) to the Home Secretary for consideration as part of a decision made under section 40(4A) of the British Nationality Act 1981;(b) to immigration officers for consideration when undertaking their duties.”
Lord Marlesford (Con)
My Lords, this amendment is a simple one. Its purpose is to ensure that Her Majesty’s Passport Office is fully aware of other passports that are held by an individual to whom a British passport has been or is to be issued.
There is nothing new about this amendment: I have raised this matter in this House several times. I had convinced the previous Government to support it but, on that occasion, policy officials in the Home Office intervened to oppose it. I have had long, helpful discussions with my noble friend Lord Taylor, for whom I have the greatest affection and respect, and I believed that I had convinced him of the merit of this amendment. I had expected that it would be in the Bill, though there was obviously no commitment to it. However, once again, Home Office officials intervened to prevent it. The gentleman in Whitehall does not necessarily know best, especially when he lives in the Home Office. It is where, rather as in the European Commission, the monopoly of initiating legislation is seen as a prerogative to be carefully guarded, regardless of the merits of outside views. In the Home Office, new thinking is successfully repelled by the three initials—NIH. I remind the House of Margaret Thatcher’s adage: “Officials advise, Ministers decide”. However, sometimes Ministers need parliamentary help in so doing, especially from your Lordships’ House.
I have had a couple of earlier battles. Eventually, I won them both. The first one took 10 years. It was to set up a national electronic register of firearms. Parliament passed my amendment on that in 1997. The Home Office decided to stonewall it for 10 years. Minister after Minister in successive Governments backed me. Eventually, the Home Office capitulated and the electronic firearms register is today in full and effective use. The second battle, during which I introduced a Private Member’s Bill in 2011, was to secure the removal of those protestors in Parliament Square who hogged the space by camping, preventing access for others. The Government eventually agreed the amendment and put it in their own legislation. That area is now again attractive and protestors can still protest.
My amendment on passports is extremely simple. It intrudes on no one’s rights and the cost would be negligible. I emphasise that I am well aware, as are your Lordships, that, as passports come under the royal prerogative, Her Majesty’s Government already have extensive rights in setting rules and practices in relation to them. However, there is a serious gap in their practice, of which the security forces warned me more than five years ago. Successive Governments have for years and years tried to introduce an electronic border system so as to be able to scrutinise and record every passenger who enters or leaves the UK. It is obvious that without such a system it is impossible to keep track of those who have been given leave to enter for a limited period, let alone get a handle on those who wish our country ill or whose presence is not conducive to our national security. Although entry scrutiny has greatly improved, it is still not complete, and exit scrutiny is hardly under starter’s orders. It still depends largely on the airlines, shipping lines and railway ticket offices. Only a few countries, such as the USA, have put in place full checks on those departing the UK, if they intend to enter the USA.
Those who wish our country ill, by which at present I obviously mean primarily those Islamist jihadists who have demonstrated their ruthless determination to use all the methods open to terrorists, may hold other passports in addition to their British passports. They can travel in and out of the country with their British passports and it is very hard for the security services to track them when they use their other passports once they are abroad. That has been shown to be the case and has been referred to, and people are amazed that what I am trying to achieve by this amendment does not already exist. I have discussed it with senior serving police officers, who told me that they believed that it was already in force and were amazed that it was not. However, it is not.
To make the administration simpler, my amendment would apply initially only to new passports and the renewal of passports, which has to happen every 10 years. In due course, it would apply to all British passport holders. I emphasise that my amendment does not in any way prevent, threaten or reduce the right of British passport holders to hold as many other passports as they can acquire. Therefore, in a sense, it is very different from the amendments that we have just discussed. It is absolutely the opposite. It is a fully libertarian amendment. I believe that it would be a major contribution to ensuring that our borders are fully protected. It would mean that when a person presents a British passport at immigration control, the details of other passports held would show up on the scan. Indeed, once the British passport holder had recorded the fact that they had other passports, if those other passports were used, again, the scan would show the corresponding information about a British passport, so the measure is logical and straightforward.
The fact that this measure does not exist was emphasised in January 2009 in a reply given by the noble Lord, Lord West, the then Home Office Minister. The noble Lord told me last week that he was very sorry that he could not be here tonight to support my amendment. When asked how many British passport holders also held passports of other countries, the noble Lord had to reply that the “information is not available”. That was an astonishing situation. However, it is still the situation. It is high time that we encouraged the Home Office to close this gap in our defences. I beg to move.
Baroness Smith of Basildon
My Lords, I have very little to say on this, as it is not something on which I have a great deal of knowledge. The issue would have benefited from debate in Committee. I understand why the noble Lord did not bring the amendment forward in Committee, although I think he probably wishes that he had done so. We would have welcomed a debate on it. I know of the noble Lord’s persistence on issues. He and I have discussed issues such as litter previously and I look forward to him coming back to that matter as well.
However, I would be interested to hear the Minister’s views on this. From what the noble Lord, Lord Marlesford, has said, he expected this issue to be in the Bill. I think he thought it was agreed that it would be included in the Bill but it is not. I hope that the Minister can enlighten us on that, on whether the issue is being considered by the Government and on their reasoning in relation to it. That would be extremely helpful for this debate.
Lord Taylor of Holbeach
My Lords, I thank the noble Baroness and, of course, I thank my noble friend Lord Marlesford. He is patient, but I think he is also a realist. I think he understands that he may have been too optimistic in expecting this measure to be included in the Bill. However, some of the points that he mentioned in his speech, and which are referred to in the amendment, are very much sentiments that we share. I share his aim of bringing offenders to justice and fully support closing down any avenue that could impact on our ability to prevent and detect crime. However, I hope that I can explain to the noble Baroness and to my noble friend why legislation in this area is not necessary and would not be beneficial to the Home Office.
Her Majesty’s Passport Office directly contributes to the Home Secretary’s key aims of securing borders, tackling terrorism and reducing crime. It does this through its public protection strategy and by sharing data and intelligence with other parts of the Home Office and other agencies. Access to personal data for the purposes set out in subsection (3) of the proposed new clause is already permissible.
My noble friend has suggested that this passport information could be made available for deprivation decisions under the proposed power in Clause 64, on which we have just had a Division. This would not significantly improve the evidence base for these sorts of deprivation decisions. The Home Office retains information regarding an individual’s previous recorded nationality or passport from their immigration records and will undertake research to determine these facts. Within the new power, the Home Office will also consider the ability to acquire a former, or another nationality, although this will not be a bar to action, as I said in moving a previous amendment. We would not necessarily rely on information provided by the individual, who may seek to benefit from renouncing or not declaring other passports or nationalities.
My noble friend has also suggested that information collected could be made available to immigration officers for consideration when undertaking their duties. Immigration officers already have powers to require a person to furnish any information that is relevant to an examination, which may include details of dual nationality where necessary and appropriate.
Her Majesty’s Passport Office does not collect data on the number of passport holders who have a second nationality. My noble friend Lord Marlesford is aware of that. The passport application, however, requires all customers to submit any sort of passport, British or otherwise, at the point of application. That information is collected to help to confirm identity and is recorded on the person’s UK passport record. HM Passport Office receives about 6 million passport applications a year from domestic applicants. It receives a further 380,000 applications from overseas. Because of the smaller quantity involved, HMPO has been able to estimate that about 50% of overseas applications may involve applicants who hold dual nationality.
HM Passport Office is required to gather information that is relevant solely to the passport application. The issue of dual nationality is not directly relevant to the UK passport application process, because a person is not prevented from having another nationality under UK law. Collecting data for purposes other than the issue of the passport would require HM Passport Office to change its published data-sharing principles and to consider the possible impact on the exercise of the royal prerogative. Furthermore, HM Passport Office is not permitted to use the passport fee to subsidise the collecting of data for a purpose that is not relevant to the issue of the passport. The agency is required to charge applicants a fee that covers only the cost of the issuing of passports.
In any event, I am not convinced that establishing and maintaining such a database would provide any significant benefit. We already require existing and previous passports to be submitted at the point of application. Information is also held on the nationality of persons who have registered or naturalised as British citizens. Gathering information on dual nationals simply because they are dual nationals would therefore be of very limited value. It would be disproportionate, as there would be no specific benefit either to support an application process or to assist in preventing and detecting crime.
However, possession of another passport is of interest to HM Passport Office for the identity reasons that I have given above. In considering the amendment, I have asked that we look at the benefits and consequences of placing a requirement on British passport holders to submit to HM Passport Office, during the lifetime of their British passport, any new, renewed or replacement passport issued to them by the country from which they hold dual nationality. I will write separately to my noble friend when we have considered this further.
I have taken the opportunity of providing your Lordships with a detailed response to this amendment because the noble Baroness said that she would like to hear the reasoning behind the Government’s position. I hope that my noble friend will appreciate that I have been fuller than I might have been. This very much reflects the seriousness of the issues that he has raised today and previously in the House—he does the House great service by doing so. However, I am satisfied with the existing processes to record dual nationality and passports when required and that, importantly, mechanisms are in place to share those data with law enforcement agencies, including border staff. So, to some degree, we have met the objectives of his amendment. I hope that, with that clarification, my noble friend will withdraw his amendment.
Lord Marlesford
My Lords, I am most grateful to the Minister for what he has said. It does not answer my amendment, although I suppose that there is an indication that the Home Office is tiptoeing towards doing the sensible thing. I shall certainly continue to press this. The next time that there is relevant legislation, I shall attach this amendment to it. I hope that we will have a strong and full debate in Committee on this because I am certain that my proposal is simple, feasible, fully in accordance with freedom and would make a very useful additional weapon to ensure that our borders are properly policed. The information that led me to bring this forward originally was good information, from those who are responsible for the practical methods of protecting our national security. I believe that this can be done.
My noble friend mentioned the possibility of non-compliance and concealment. There is a simple remedy for this. If someone, in applying for a British passport or a renewal, with the requirement that they disclose other passports that they hold, fails to do so, it is obvious that they have not complied with their obligation in getting the British passport and it could immediately be cancelled. That would be an easy and satisfactory penalty for non-compliance.
I believe that my proposal is both needed and practical and I shall return to it. However, in the mean while, I withdraw the amendment.
Lord Avebury
“Descent through the female line
(1) Section 4C of the British Nationality Act 1981 (acquisition by registration: certain persons born between 1961 and 1983) is amended as follows.
(2) In subsection (3A)(a), after “father,” omit “and”.
(3) In subsection (3A)(b), at beginning insert “where material,”.
(4) In subsection (3A)(b), at end insert—
“(c) where material—(i) the applicant’s mother or father (“the parent in question”) would have acquired citizenship by descent from a mother on the assumption that, as applied to the parent in question, section 5 or 12(2) of, or paragraph 3 of Schedule 3 to, the 1948 Act (as the case may be) provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father, and references in that provision to a father were references to the parent in question’s mother, or(ii) the parent in question would have acquired a nationality status by descent from a mother on the assumption that, as applied to the parent in question, a provision of the law at some time before 1st January 1949 which provided for a nationality status to be acquired by descent from a father provided in the same terms for its acquisition by descent from a mother, and references in that provision to a father were references to the parent in question’s mother”.(5) In subsection (3B)(a), after “mother,” omit “and”.
(6) In subsection (3B)(b), at beginning insert “where material”.
(7) In subsection (3B)(b), at end insert—
“(c) where material, the parent in question would have acquired a nationality status by descent from a mother on the assumption that, as applied to the parent in question, a provision of the law at some time before 1st January 1949 which provided for a nationality status to be acquired by descent from a father provided in the same terms for its acquisition by descent from a mother, and references in that provision to a father were references to the parent in question’s mother”.”
Lord Avebury
My Lords, this amendment deals with persons born abroad prior to 1983 who would have been British today if they had had a paternal grandfather born in the UK, or who would have been entitled to become British citizens by registration today if they had had a maternal grandfather born in the UK, instead of a paternal grandmother or maternal grandmother so born.
Before 1983, a person born abroad to a British father automatically became a British citizen by descent. In certain cases, the children of a citizen by descent also became citizens by descent, automatically or conditionally. So, for example, a person born outside the UK and colonies or, before 1949, outside Her Majesty’s dominions, and whose father was also so born, was a citizen by descent if his paternal grandfather was born in the UK. However, a person born abroad to a British mother and a foreign father had no right to UK citizenship, until this anomaly was dealt with for the first generation in the Nationality, Immigration and Asylum Act 2002 by the insertion of Section 4C in the British Nationality Act 1981.
However, there remains discrimination in the next generation. A person born abroad before 1983, whose maternal grandfather was born in the UK, so that her mother born abroad was also British, has access to British citizenship through registration under Section 4C. Yet the person whose maternal grandmother was born in the UK, and whose father or mother born abroad did not acquire British citizenship, has no right to UK citizenship. To put it simply, there is discrimination in our law according to whether your grandfather or grandmother was British by birth, all other circumstances being the same.
For this reason, the UK has had to enter a reservation to our ratification of the Convention for the Elimination of All Forms of Discrimination Against Women, Article 9(2) of which provides that:
“States Parties shall grant women equal rights with men with respect to the nationality of their children”.
Our reservation says that the UK’s acceptance of Article 9 shall not,
“be taken to invalidate the continuation of certain temporary or transitional provisions which will continue”,
beyond 1 January 1983. My noble friend would probably agree that a reservation which has lasted for 31 years cannot rightly be described as temporary or transitional, and that our commitment to gender equality is incompatible with the existence in our nationality law of a provision, the removal of which is unlikely to affect more than a few people. I beg to move.
Lord Taylor of Holbeach
My Lords, I am aware that my noble friend has long campaigned about the citizenship rights of children of British mothers, and indeed he was involved in getting us to where we are today in having a route for those born before 1983 to acquire the status that they would have had had women been able to pass on citizenship in the same way as men. However, as my noble friend will recognise, nationality law is complex and it is not straightforward to legislate to cater for all the anomalies that exist.
Before I discuss the amendment, noble Lords will remember that my noble friend introduced an amendment in Committee concerning the citizenship position of illegitimate children of British fathers. I committed to consider the matter further. I have not forgotten. It is in hand and I am continuing to look at this in conjunction with my noble friend. He will have seen our first two attempts to deal with this matter and he can be assured that yet another, more straightforward version will be with him shortly. The intention is that an amendment on the issue will be brought forward at Third Reading.
The amendment proposed by my noble friend today seeks, as he said, to amend Section 4C of the British Nationality Act 1981 to allow a person to acquire British citizenship through their grandmother if they would have been able to do so had women been able to pass on citizenship in the same way as men. I understand that citizenship could normally be passed on for one generation born overseas but that there are a limited number of cases where a person could acquire citizenship on the basis of their grandfather’s citizenship. An example of this might be where the grandfather was born in the UK and either his child or grandchild was born in a country, such as a UK protectorate, where the Crown exercised extraterritorial jurisdiction.
Although I recognise what my noble friend is trying to achieve here, I reiterate the point that was made when this issue was debated in the past: we can only go so far to right the wrongs of history. The original intention of Section 4C was to cater for the children of UK-born women, but the current legislation affects all children of British women. However, we think that there would be difficulties in extending this further to cover the grandchildren of British women as that could result in even more complexities. I think that my noble friend will recognise the complexity of the law in this area.
We recognise that there are some people who acquired citizenship through a grandfather and others who could not do so through a grandmother. However, where families have maintained a close and ongoing connection with the UK, those grandchildren could have acquired British citizenship through another route, such as registration or naturalisation based on a period of residence here. Those whose parents have never lived in the UK and have not established their own connections here are likely to have the citizenship of the country of their birth or residence.
I know that this will be disappointing to my noble friend but I cannot accept his amendment. However, I thank him for bringing it forward and for giving me an opportunity to explain the Government’s position.
Lord Avebury
My Lords, I recognise the Minister’s phrase about not being able to rectify all the wrongs of history but I do not agree with that expression. I think that we ought to remedy the wrongs of history and this would have been an excellent opportunity to do so in the case of what I think my noble friend acknowledges would be a very small number of people. However, I also recognise the realities of the situation—that, unlike the two previous amendments on which there were Divisions, I would not be so successful if I were to seek the opinion of the House.
Therefore, I will withdraw the amendment but, first, I should like to say how grateful I am to my noble friend the Minister for what he said about the amendment to enable illegitimate children born before 1983 to acquire British citizenship in circumstances where they would already have been able to do so if they had been legitimate. I hope that in our final draft, following the previous two, which the Minister mentioned, we will give the Secretary of State discretion to waive requirements that may be imposed on a parent in the event of the parent being unco-operative or no longer able to fulfil the requirement by reason of incapacity or death. I am also concerned that in the final draft we should avoid any ambiguity between registration and consular registration and avoid imposing any consular registration requirements which the parents of an illegitimate child might not have met, bearing in mind the stigma attached to illegitimacy in those days.
When my noble friend comes to produce the third draft at Third Reading, I should be most grateful if those points could be borne in mind. Meanwhile, I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
“Duty regarding the welfare of children
For the avoidance of doubt, this Act does not limit any duty imposed on the Secretary of State or any other person by section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children).”
Lord Taylor of Holbeach
“(ca) the first regulations under section 49(1);(cb) the first regulations under section 49(5);(cc) the first regulations under section 50(3);(cd) the first regulations under section 50(4);”
Lord Taylor of Holbeach
My Lords, the amendments in this group are government amendments, responding to the parts of the Bill dealing with sham marriages. They respond directly to the recommendations made by the Delegated Powers and Regulatory Reform Committee in relation to Part 4 of the Bill. I thank the committee for its careful consideration of the issues raised by these powers.
Part 4 of the Bill will establish in England and Wales a new referral and investigation scheme aimed at tackling sham marriages and civil partnerships entered into for the purpose of circumventing the UK’s immigration controls. Under the scheme, all notices of marriages and civil partnerships referred to the Home Office will be considered for investigation.
Clause 49 provides the basis for the conduct of an investigation into a referred marriage or civil partnership where the Secretary of State has reasonable grounds to suspect that it is a sham and decides to investigate. Clause 50 makes further provision for the basis on which such an investigation will be conducted.
Clauses 49 and 50 provide for regulations to be made by the Secretary of State relating to the investigation of a proposed marriage or civil partnership under the scheme. These regulations will set out the requirements with which the couple must comply as part of the investigation. It will be necessary for the couple to comply with these requirements in order to complete the marriage or civil partnership notice process.
The committee is right to point in particular to the significance of the implications arising from non-compliance with an investigation. A couple failing to comply with an investigation will not be able to marry or form a civil partnership on the basis of that notice, and will have to give notice again if they still wish to marry or form a civil partnership. The committee recommended that the affirmative procedure would be appropriate for regulations made under Clauses 49 and 50.
We accept that it would be appropriate for the first set of regulations made under each of these powers to be subject to the affirmative procedure, and this is provided for by Amendment 59. This will enable both Houses to give full consideration to the substance of the regulations when the referral and investigation scheme is established. However, we do not consider that the affirmative procedure is appropriate for subsequent changes to the regulations which may be necessary after the scheme has been implemented. To require a debate in both Houses would be unnecessarily burdensome, as any such changes are likely to be minor.
Paragraph 2 of Schedule 6 provides for the disclosure of information by registration officials to the Secretary of State and other registration officials for immigration purposes, such as preventing immigration offences. The Secretary of State may by order specify further immigration purposes to enable the disclosure power to keep pace with developments in the law and in operational requirements.
Clause 53(6) makes equivalent provision where the referral and investigation scheme and these information-sharing provisions have been extended to Scotland and Northern Ireland by an order under Clause 52. The committee’s view was that these powers are similar to the power to extend information-sharing contained in Section 20 of the Immigration and Asylum Act 1999, which is subject to the affirmative procedure. The committee has therefore recommended that they should be subject to the affirmative procedure. We have accepted the committee’s recommendation. Amendments 60 and 61 provide for the order-making powers under paragraph 2 of Schedule 6 and Clause 53(6) to be subject to the affirmative procedure. I beg to move.
Lord Taylor of Holbeach
“(g) an order under paragraph 2(3)(e) of Schedule 6.”
Lord Roberts of Llandudno
“( ) Section 1 and Part II of this Act shall come into force on a day to be appointed, that day being no earlier than the day on which an order made by the Lord Chancellor under section 9(2)(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in respect of civil legal services in connection with removal under section 1 and appeals under Part II comes into effect.
( ) The order must make provision for persons under 25 who entered the United Kingdom as a child.
( ) For the purposes of this Part, “child” means a person under 18.”
Lord Roberts of Llandudno (LD)
My Lords, in speaking to the amendment I will remind noble Lords how it concerns the removals and appeals provisions of the Bill and how they impact on people, including children and young people, who have no access to legal assistance.
Amendment 62 seeks to insert a sunrise provision in Clause 72. It provides that Clause 1 on removals and Part 2 on appeals cannot come into force until an order has been made dealing with legal aid for affected cases. This means that we will have to make sure that legal aid is extended and not reduced, and that it will make particular provision for people under 25 who entered the UK as minors. It is essential to see the removal provisions in Clause 1 and the appeals provisions in Part 2 in the context of diminishing access to legal assistance for those whom the Bill will affect.
The Government have stressed in relation to Clause 1, including in their fact sheet on the clause, that people subject to removal will be advised to seek legal advice as early as possible. This, however, will not be much use if people cannot obtain that advice because, first, they cannot afford to pay a lawyer; secondly, because immigration cases are not in the scope of legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012; and, thirdly, because they do not meet the Government’s proposed residence test for civil legal aid, if that test is introduced as planned in August of this year.
We are talking about people being forced to leave the UK and the division of family members, one from the other, without their having the benefit of a lawyer to advise them on their and their family’s rights, including the rights of any affected children. This is about young people who have grown up in the UK, including young care leavers, being deported to a country they do not know without an appeal right and without even having the chance to speak to a solicitor about their case.
The Coram Children’s Legal Centre has done a great deal of work on this and has demonstrated why legal aid should be available. It told me that it had worked on cases where a child has been brought into the UK as an infant and has later been taken into care. The child has indefinite leave to remain until it reaches the age of 18 when, at that age, the Home Office tells them that it intends to revoke their leave and to deport them to a country of which they have no memory.
What of children such as these? A child’s immigration case based, for example, on the child having lived for most of their life in the UK, will attract no legal aid even if the case goes all the way to the Supreme Court. A child with no lawful leave will be excluded from legal aid by the residence test, even if that child is only seven years of age. Proposals to restore legal aid for children’s welfare under Sections 17 and 20 of the Children Act made in the Government’s response to the Joint Committee on Human Rights are welcome but they fail to address a core problem. A young person can be deported before there has been any opportunity for judicial oversight of the Home Office’s decision. They do not get legal aid for their immigration case, nor will they get legal aid for any judicial review. The issues at stake in removal and deportation cases are of the utmost importance in the lives of children, young people and families. Legal aid should be available for such cases.
The Government have said that there is the option of applying for exceptional funding but, after speaking to the Minister for Justice, the right honourable Simon Hughes, I understand that very few of such applications are successful. I was shown the paperwork, the application form that a young person has to fill in for exceptional purpose funding. It consists of 14 pages. I have looked at the 14 pages and I have looked at the Bill. I am not a lawyer by any means, but if the application form is so confusing and difficult for us to understand, how can you expect a young person of 18 years of age, who has no legal training, to stand up and speak for themselves because there is no legal aid available and a lawyer cannot be provided. The Government must look after all young people who are in need of legal assistance. If they do not get it, then British justice affecting young people is breaking down.
There is to be a review of the Bill after between three and five years. I would like that to be sooner. I would like to see how it is proceeding and for it to be kept under constant review.
I would also like to see more generous exceptional case funding. The Government expected about 7,000 cases and instead they got about seven. There has been wrong judgment right from the start. How many cases were expected and how many arose? We need a review far sooner than three or five years.
The Bill and its amendments are so complicated that this 14-page application form should be looked at immediately and simplified so that a person facing extradition will be able to understand exactly what it means. If my three requests are granted—a review before three years, more generous exceptional case funds and a simplified form—it would be a tremendous step forward. I beg to move.
Lord Taylor of Holbeach
My Lords, Amendment 62 seeks to amend Clause 72, which provides for the commencement provisions in the Bill. It requires the Government to make an affirmative order under Section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—or LASPO, as we refer to it in the House—so that removals and all appeals are eligible for legal aid where someone is under 25 and entered the UK as a child. We debated this amendment in Committee when my noble friend Lord Attlee explained that this amendment would stall and potentially block changes to removals and appeals in the Bill.
The scope of the legal aid scheme was approved by Parliament and settled by LASPO. The Government have recently consulted on introducing a residence test for civil legal aid. Parliament will have the opportunity to consider these proposals shortly. However, we have no plans to extend the scope beyond the high-priority matters on which Parliament has agreed.
In Committee, the noble Baroness, Lady Lister, who is not in her place at the moment, referred to the JCHR report on the residence test. She noted that the committee concluded that the Government’s response to that report had not gone far enough. With respect, we do not agree with that comment. The Government considered the JCHR report carefully and in response modified the exceptions to the residence test, including for children. These changes ensure that the test is fair and that legal aid is targeted where it is justified while achieving the essential policy aim of targeting legal aid at those with a strong connection to the UK. We do not accept that the residence test would result in any contravention of our domestic and international legal obligations, including our obligations under the UN Convention on the Rights of the Child.
While this amendment is well intentioned, it is unnecessary. The vast majority of unaccompanied children are asylum seekers and will receive legal aid. Victims of trafficking also receive legal aid, and indeed we discussed their status earlier today. Children or young adults who are not unaccompanied will have the support of their family in the UK.
In Committee, my noble friend Lord Roberts raised concerns about the number of successful applications for exceptional funding. The fact that a lower-than- forecast number of successful applications has been made does not indicate that the system is defective. It is important to note that estimates made about volumes are precisely that—estimates. The fact that the volume of applications has been lower than forecast is clearly also relevant to the number of applications granted. Legal aid is and will remain available for the highest- priority cases such as asylum seekers and advice and damages claims for victims of trafficking. Children and those who entered the UK as children who fall into one of these groups are eligible for legal aid. It is right that these limited funds should be targeted towards them. Therefore, it is only those children and young adults who do not fall into one of the high-priority groups who will not be eligible for legal aid.
My noble friend asked why the exceptional funding mechanism is so bureaucratic. We do not accept that the system is overly bureaucratic. There is a bespoke application form to fill in which is designed to help providers present the relevant information. In addition, clients can ask for a provisional determination concerning their case directly from the Legal Aid Agency if they wish to do so. I appreciate the enthusiasm with which my noble friend has addressed these issues, but in the light of my points, I hope that he will feel able to withdraw his amendment.
Lord Roberts of Llandudno
I thank the Minister for his response. He is always cheery and helpful, but he has not given me the answer I was looking for. I just hope that the Minister, possibly with the Ministry of Justice, will look at this again. We have heard stories of young people reaching the age of 18 and then facing possible deportation. There may be a dawn raid, but I hope that the age of the dawn raid is over. There are stories of youngsters aged 18 bedwetting, which is very embarrassing. I heard of one lad who would push the wardrobe up against the bedroom door so that if anyone came in the early hours of the morning to arrest him, it would be that bit more difficult for them to do so. The worst story I heard was that of one lad who had fashioned a noose and hung it over his bed, so that if anyone came, he could take that way out.
Please can we keep this situation under constant review and possibly look at the more extreme cases—I admit that these are the more extreme ones—so that every child feels that he or she is not alone? They need to know that people are there who are ready to work with them. I hope very much that by talking to the Ministry of Justice and the Home Office, we can come up with some sort of solution. Sadly, once again I beg leave to withdraw the amendment.
Baroness Butler-Sloss