Public Authorities (Fraud, Error and Recovery) Bill (Third sitting)
Thursday 27th February 2025
(1 day, 18 hours ago)
Public Bill CommitteesPublic Authorities (Fraud, Error and Recovery) Bill 2024-26 View all Public Authorities (Fraud, Error and Recovery) Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 February 2025 - (27 Feb 2025)
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Chair
Before we begin, I have a few quick preliminary announcements. Members should send their speaking notes by email to hansardnotes@parliament.uk. Please, everyone, switch mobile phones and electronic devices to silent. No matter how much we want tea or coffee, they are not allowed during our sittings.
Today, we will begin line-by-line consideration of the Bill. The selection and grouping list for today’s sitting is available in the room. It shows how the clauses and selected amendments have been grouped together for debate. Amendments grouped together are generally on a similar issue. Please note that decisions on amendments do not take place in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment, and on whether each clause should stand part of the Bill, are taken when we come to the relevant clause.
A Member who has put their name to the lead amendment in a group is called to speak first. Other Members are then free to catch my eye to speak to all or any of the amendments within that group. A Member may speak more than once in a single debate. At the end of a debate on a group of amendments, I shall call the Member who moved the lead amendment again. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or seek a decision. If any Member wishes to press any other amendment in a group to a vote, they should let me know in advance.
Clause 1
Core functions of the Minister for the Cabinet Office
Question proposed, That the clause stand part of the Bill.
The Parliamentary Secretary, Cabinet Office (Georgia Gould)
It is a pleasure to serve under your chairship, Mrs Lewell-Buck. I look forward to constructive dialogue with the Committee throughout the day.
As the Committee is well aware, fraud against the public sector takes money away from vital public services, enriches those who seek to attack the Government, damages the integrity of the state and erodes public trust. The Bill makes provision for the prevention of fraud against public authorities by the recovery of money paid by public authorities as a result of fraud or error, and for connected purposes. Under part 1, the Bill authorises powers that will be used by the Public Sector Fraud Authority, part of the Cabinet Office, and under part 2, by the Department for Work and Pensions, on which the other Minister in Committee, the Parliamentary Under-Secretary of State for Work and Pensions, will lead.
I will now consider clauses 1 and 2 together. Clause 1 gives new core functions to the Minister for the Cabinet Office and sets out what can be recovered by the use of the powers under part 1 of the Bill. It describes what the Government want to achieve with part 1: to investigate more public sector fraud; to get back funds lost to the public purse through that fraud; to take enforcement action against fraudsters, whether through civil or criminal routes; and to support public authorities to prevent and address fraud against them.
The functions of the powers under part 1 will be used to deliver. As such, it is necessary that this clause stands part of the Bill. The functions are given to the Minister for the Cabinet Office, but it is important to stress that that is drafting convention, and the Minister will not use the powers personally; instead, in line with the Carltona principles, later clauses set out that the decisions may be taken and powers utilised by authorised officers and authorised investigators appointed by the Minister. Those officials will sit within the Public Sector Fraud Authority and will be experienced investigative professionals trained to Government counter-fraud profession expectations, sitting in a structure led by senior counter-fraud experts. As we heard from the witnesses, that will sit within a system of oversight, to be discussed later in the Bill.
The clause also sets out what “recoverable amounts” are. First, that means payments made as a result of fraud or error that have been identified during the course of a fraud investigation to be either fraudulent or erroneous, and which the affected public authority is entitled to recover. Later clauses cover how that entitlement is established. Error as well as fraud is included here, because if an investigation discovers that there has not been fraud, but none the less that a person has received money that they should not have, the debt powers in the Bill can, if necessary, be used to recover it. That is in line with the approach taken by others, including His Majesty’s Revenue and Customs and the DWP, but it is important to stress that the core function of the powers is to investigate and recover losses from fraud. Recovery in that way will normally be when alternative voluntary routes have been exhausted, or a person or business can repay but is refusing to do so. All attempts will be made to engage.
Secondly, “recoverable amounts” covers any other amount that a public authority is entitled to recover in respect of that fraud. That covers frauds where no payment has been made, but the fraudster has benefited in some other way—for example, fraudulently not paying what they owe—and the value of that can be determined. Finally, it also includes any interests which would be collectable in those circumstances.
Clause 2 sets out how the Minister for the Cabinet Office can carry out the functions in clause 1. The clause excludes HMRC and the DWP from the list of bodies that the PSFA will be able to take this action for as they both have significant resources and expertise in this area, as well as their own powers. Again, we will discuss that later.
Importantly, the clause does not remove or supersede responsibilities and functions that other public authorities may have in respect of fraud and the recovery of money. The powers in this part allow the Government to fill a gap and complement what already exists. The intention is that, in exercising these functions, the Minister, and the authorised officers and investigators who will use the powers on behalf of the Minister, are not simply moving investigations and recoveries that would happen anyway into the Cabinet Office. Instead, they will primarily use them in a way that is additive, to take on investigations, recover money and take enforcement action that would otherwise not have been done.
Subsection (3) says that the Minister may charge “a fee”. The PSFA does not currently charge for its investigative services, but that gives it authority to do so in the future, consistent with the cost-recovery approach set out in HM Treasury’s “Managing Public Money” guidance. “Public authority” has a broad definition set out in clause 70 and would include, for example, other Government Departments, arm’s length bodies and local authorities.
Clause 2(4) says that the Minister is included in the definition of public authority in clause 70 as far as that concerns fraud or suspected fraud against the Minister, or recovery of money for the Minister. That is to ensure that frauds against the wider Cabinet Office and its agencies and bodies can still be investigated by the PSFA. However, to ensure that there is no conflict of interest, it will be set out in guidance that the PSFA will not investigate alleged frauds within the PSFA or allegations against the Minister personally but will refer those to another agency as deemed appropriate on a case-by-case basis. That will help to ensure the integrity of PSFA investigations by keeping responsibility for investigating fraud in the PSFA, or by the Minister, external to that function, to preserve appropriate independence.
Finally, subsection (5) ensures that, in giving Ministers these functions, this part does not affect a public body’s entitlement to recover an amount or any functions it has in respect of fraud or recovery. That means existing functions and powers are not taken away from public authorities or superseded by the Ministers’ functions.
Mike Wood (Kingswinford and South Staffordshire) (Con)
His Majesty’s Opposition agree with the Bill’s principles and support the Government in what they are seeking to do, but we will be using our best efforts to try to help them do it better where we can. As the Minister said, clause 1 sets out the functions. Those functions seem perfectly sensible and reasonable, as does the way in which the Minister for the Cabinet Office is to interact with other public authorities as set out in clause 2. One of the themes that runs throughout almost all clauses of the Bill is the issue raised by multiple witnesses on Tuesday about how the functions to be allocated to the Minister or their representatives are to be exercised within the various codes of practice provided for in the Bill.
On Tuesday, the Minister seemed to indicate that the Government intend for those codes of practice to be made available for the House of Lords to scrutinise, but not for the House of Commons. That obviously makes it much more difficult for the Committee to consider the appropriateness of those functions and the various powers in the Bill. I urge the Government again to reconsider and look at how the House of Commons can be given those chances before our House completes its consideration. We recognise that that will not be possible in Committee.
In August 2022, the previous Conservative Government established the Public Sector Fraud Authority within the Cabinet Office. We welcome the Bill taking that work forward by establishing the PSFA as a separate body from the Cabinet Office, to which the Cabinet Office is able to transfer functions. We entirely support the Government’s efforts to tackle fraud and error.
The National Audit Office puts the amount lost by fraud and error in the range of £5 billion to £30 billion in 2023-24, so ensuring that the Bill works to tackle both error and fraud is crucial within the functions set out in clause 1, and we will come on to that with some of our amendments to later clauses. Equally, we wish to ensure that the functions assigned to the Minister for the Cabinet Office are proportionate and capable of independent review and oversight. We will return to these important issues with our amendments later on.
I would like to ask the Minister some questions on clauses 1 and 2, the first of which is about the definitions. The Bill does not provide definitions of “fraud against a public authority” or “error”. As we heard in evidence on Tuesday, Dr Kassem from Aston University stated that
“the definition of fraud can be a bit limiting in the current Bill, because, first, it assumes that fraud is happening for financial reasons when that is not necessarily the case. There are non-financial motives. Let us consider insider fraud—fraud committed by insiders, people working for the public authorities—which is one of the most common threats not just in the public sector, but across other sectors. A disgruntled employee can be as dangerous as someone with a financial motive. So I would stick with the Fraud Act 2006 definition of fraud, because it mentions personal gain full stop. It can be financial and it can be non-financial. That has to be clarified.”––[Official Report, Public Authorities (Fraud, Error and Recovery) Public Bill Committee, 25 February 2025; c. 6, Q3.]
Really, it must be clarified within the functions set out for the Minister for the Cabinet Office. Why should that not be the case, and how does the Minister define these things for the Bill, if it is not in line with the Fraud Act 2006? Clause 2(3) also states:
“The Minister may charge another public authority a fee in relation to the exercise of functions under this Part on behalf of, or in relation to, the public authority.”
Can the Minister clarify what we would expect that fee to be? Is it arbitrary or a set amount? Does the Minister decide or is there a particular process?
I would also like to ask the Minister about the amounts that the Government expect to recover under the Bill. According to its impact assessment, the powers in part 1 are estimated to lead to around £54 million—the best estimate for net present benefits—being recovered from public sector fraud over 10 years. Can the Minister reassure the Committee how robust that estimate is, what it is based on and how confident the Government are that the full amount of money will be recovered?
The reason I ask that is because, for the Government across the 10 years, the best estimate for fraud recovered minus costs is £23 million. Different numbers of cases could mean a loss or a slightly higher return, which could be between minus £1.5 million and £24 million. How will the Government ensure that the Bill recovers more money than is paid out in costs in administering its functions? As clauses 1 and 2 are the foundation for establishing the PSFA, the Opposition are content for them to stand part of the Bill.
Steve Darling (Torbay) (LD)
It is a pleasure to serve under your chairmanship, Mrs Lewell-Buck. I am pleased that you already see that we will become the official Opposition by the next general election, as long as the right hon. Member for North West Essex (Mrs Badenoch) continues.
The Liberal Democrats would like to state clearly that fraud is wrong and, as the Minister rightly stated, it robs the state of the ability to support people and drive the change in our communities that we all thirst for. Our concern is that this legislation is being rushed through Parliament at breakneck speed, and rushed legislation can result in dangerous consequences for those who get caught up in it eventually. I share this concern with the Minister: we legislate at haste and repent at leisure when things go wrong.
Georgia Gould
I thank both hon. Members for their constructive comments. This dialogue will be really important in scrutinising the Bill. I also welcome the support for action on fraud, and the acknowledgment that it is a significant issue.
On timing, I reassure the hon. Member for Torbay that the powers in the Bill that the PSFA is asking for are all powers that exist elsewhere in government. They have been used and tested; they are just being brought into a new context. At the moment, there are few powers to investigate or recover fraud that happens to the wider public sector, but this part of the Bill seeks to rectify that. There has been a great deal of consultation led by me, the Under-Secretary of State for Work and Pensions and our teams to get us to this point, but we will engage constructively with scrutiny as we move forward.
On the cost-benefit analysis, the overwhelming message from witnesses was that these new powers are necessary because there is a gap in investigating and recovering fraud against the wider public sector, and that the Bill will make a difference.
On the question of the £54 million and whether that is robust, that is a modest amount given we know that at least £3 billion of fraud happens against the wider public sector. It has come about through a great deal of work from the PSFA in modelling forward the current size of the enforcement team and how the powers are used elsewhere. We can therefore be confident in that figure, but if the powers work well we could grow the capacity and potentially recover more fraud.
At the moment, we know that there is fraud going on that the Government cannot investigate. A big part of this will be the deterrent and making it clear that if there is fraud in procurement or grants, there will be real powers to investigate and recover that money. That is really important both for the concrete recovery of money and for trust in how public funds are spent.
On the wider points about the importance of oversight, including of the Bill, that has been incredibly important to the Government. We thought deeply about the measures in the Bill and we will discuss that as we go through it. As for the development of the codes of practice, as I hope the Committee will see today, I will refer to the measures that are to be put in the code of practice as we go through the clauses, so that we can have some discussion about that.
I reassure the Committee that the definition of fraud in clause 70 is as it is defined in the Fraud Act 2006. That includes the main fraud offences, which are false representation, fraud by failure to disclose information when there is a legal duty to do so, and fraud by abuse of position. Hopefully that provides reassurance on that question, and I look forward to answering any other questions.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2 ordered to stand part of the Bill.
Clause 3
Information notices
The Chair
With this it will be convenient to discuss the following:
Amendment 10, in clause 3, page 2, line 36, at end insert—
“(1A) The Minister has reasonable grounds to suspect a person has committed fraud against a public authority if—
(a) there is an objective basis for the Minister’s suspicion based on facts, verifiable information or intelligence, and
(b) a reasonable person would be entitled to reach same conclusion based on the same facts, information or intelligence.
(1B) The Minister does not have reasonable grounds to suspect a person has committed fraud against a public authority if the Minister’s suspicion—
(a) is based in any way on—
(i) the person’s physical appearance,
(ii) any protected characteristic under the Equality Act 2010 that a person may have or appear to the Minister to have, or
(b) is based solely on any generalisation or stereotype giving rise to a belief that certain groups or categories of people are more likely to be involved in criminal activity.”
Amendment 14, in clause 3, page 3, line 10, delete “10” and insert “28”.
Amendment 9, in clause 3, page 3, line 30, at end insert—
“‘reasonable’ means the Minister must have formed a genuine suspicion in their own mind, and the suspicion that fraudulent activity has taken place must be reasonable. This means that there must be an objective basis for that suspicion based on facts, verifiable information and or intelligence which indicate that fraudulent activity will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts and information, and or intelligence.”
Mike Wood
Clause 3 would give the PSFA the power to issue information notices to a third party, compelling them to provide information within a deadline. The amendments set out the circumstances in which that would be done and set what we think is a perfectly reasonable test of reasonableness, as well as exploring the time provided for the recipients of notices to respond. Our amendments are designed to probe some areas of this process. The powers given to the Minister for the Cabinet Office in clause 3 are wide-ranging, so we wish to ensure that these are used reasonably and proportionately, and solely in connection with the explicit purpose of the Bill. We have tabled amendments 11, 10, 14, and 9 to that end.
We have to remember that the powers can be used against individuals and small businesses. While we might expect most of the notices to be issued against multinational companies, particularly financial institutions, we also need to consider those who do not have the capacity of larger organisations. The powers must be used reasonably and effectively in all circumstances.
Amendment 11 sets a reasonableness test relating to whether the information being requested is likely to relate to the fraud in question—for example, in private text messages—and therefore whether it is reasonable to ask for that information, and whether the cost involved in recovering the required information is likely to be reasonable and proportionate. The Minister referred to equivalent powers that are available in other forms of investigation that the Government and their agencies and bodies carry out. We see the reasonableness test as equivalent to that which HMRC must meet in its notices.
We also wish to ensure that the powers are not misused, and amendments 9 and 10 are directed towards that purpose. Although clause 3 states that the Minister can use the powers only against someone
“whom the Minister has reasonable grounds to suspect has committed fraud against a public authority”
the Bill provides no definition of “reasonable”, so amendments 9 and 10 are designed to fill some of that gap.
Amendment 10 specifies that the Minister for the Cabinet Office
“has reasonable grounds to suspect a person has committed fraud against a public authority if…there is an objective basis for the Minister’s suspicion based on facts, verifiable information or intelligence, and…a reasonable person would be entitled to reach same conclusion based on the same facts, information or intelligence.”
We want to be clear about what we do not think are reasonable grounds. These would include, for example, if the Minister’s suspicions were based in any way on a person’s physical appearance—protected characteristics under the Equality Act 2010 that the person may have, or appear to the Minister to have—or were based solely on any generalisation or stereotype giving rise to a belief that certain groups or categories of people are more likely to be involved in criminal activity. We want to ensure that the powers are exercised responsibly and appropriately.
Amendment 9 gives the definition of “reasonable” as meaning that
“the Minister must have formed a genuine suspicion in their own mind, and the suspicion that fraudulent activity has taken place must be reasonable. This means that there must be an objective basis for that suspicion based on facts, verifiable information and or intelligence which indicate that fraudulent activity will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts and information, and or intelligence.”
Amendments 9 and 10 are based on the reasonable grounds for suspicion that are contained in the PACE—the Police and Criminal Evidence Act 1984—code A.
Bearing in mind that these powers will be exercised against individuals, some of whom might struggle to provide information, we want to probe the choice of 10 days as the timeframe in which to provide information. Amendment 14 increases the minimum notice period from 10 working days to 28, which is similar to the standard minimum time that people would expect to be given to respond to written requests for information from HMRC. Given the scope of the information that might be requested, appropriate time must be given to organisations and individuals to comply. External circumstances should also be taken into account when considering the time periods. If an individual is on annual leave or off sick for a few days, they may have less than a week to provide the information or they will face significant fines. That does not seem reasonable.
We are not necessarily saying that 28 days is a better time period than seven, but I would be grateful if the Minister explained why the Government set the minimum time that they did. That is particularly pertinent, as failure to provide the information required would carry a civil penalty of £300 a day, which, for an individual, can amount to a considerable sum of money very quickly.
In its current form, without being more specific about what it means to be “reasonable” or expanding the timeframes, we are a little concerned that the powers that clause 3 gives the Minister may not include the necessary checks and balances, so I would appreciate her reassurances on that point.
Steve Darling
Perhaps the word that the shadow Minister used most was “reasonableness”. In our strange political world in recent months, the question of what is reasonable in our society has changed significantly following the change of President in the United States. What normal society would expect is “reasonable” of an elected official, both here and in America, gives me, as a Liberal Democrat, cause for concern in relation to how we can make sure that a Bill like this, which gives very significant powers to the state, sets safeguards in stone to protect our communities. We will come to that later, but I would welcome reassurance from the Minister. Although I am sure that we are all reasonable people in this room, others who are unreasonable might take power at a later stage of our lives. With this legislation, how can we put safeguards in place? I hope that we will cover that later, but the Minister’s early thoughts would be welcome.
Georgia Gould
I welcome those probing amendments, because they give me an opportunity to provide some clarity and reassurance on those important points. I will respond to them in a second, but on the question of safeguards, as I said in my introduction, we have thought very deeply about them and we are really mindful of the responsibility of these powers, so a broad range of safeguards has been built into both sides of the Bill.
On the PSFA measures, all the use of powers will be overseen by a separate team that will be accountable to an independent chair who will transparently report their findings annually to Parliament. The use of the wider powers will be overseen and reviewed by His Majesty’s inspectorate of constabulary and fire and rescue services, which has a lot of experience in this. There are various routes of appeal and review built into the powers, as well as times when applications to court are needed, and we will deal with those in some depth as we go through the clauses. Oversight is absolutely critical, and that is why we have put such a robust oversight system in place.
On clause 3, currently any information needed from first parties or connected third parties can be asked for only if they refuse to provide it, and there is no way for the PSFA to compel the information to be produced without having to go through the civil court. The clause enables authorised officers in the PSFA to compel information to be produced that is not excluded, where it is necessary, proportionate and in line with the data protection legislation, from individuals and businesses as part of a civil fraud investigation. As we discussed on Tuesday, those authorised officers will all be highly trained and subject to professional standards and a code of conduct.
In particular, clause 3 extends the Minister’s powers to include taking copies of information and requiring the individuals to provide information in a specified form. The power includes imposing duties on an individual to retain information that they already hold for longer than they would normally be required to. For example, that might apply where the PSFA requests contractual notes as part of an investigation that a person may retain for only three years. Where the request is made just before the end of that period, the information notice would also explain that any failure to supply the specified information might result in a civil penalty being imposed.
The clause details the requirements of the information notice, including the format, the timeline for compliance and the location for submission. A similar approach is used by HMRC. In practice, authorised officers would engage, where possible, on a voluntary basis before issuing an information notice. The clause also ensures that there are restrictions on the information notice from demanding “excluded material” or “special procedure material”, as defined under the Police and Criminal Evidence Act.
I will turn to the amendments, and as I said, I am very grateful for the opportunity to explain how this clause works, which I hope will provide some reassurance. Clause 3(1)(a) and (b) set out a test for issuing an information notice. An authorised officer will have the power to compel information only when it is necessary and proportionate to do so, and only when the information being requested relates to a person whom the authorised officer has reasonable grounds to suspect has committed fraud. On that basis, PSFA authorised officers will request the information only when there are reasonable grounds to do so.
The question that amendment 10 raises is, “What is meant by ‘reasonable grounds’?” It must be objectively reasonable for them to suspect fraud, given the information available to them. An authorised officer must genuinely suspect that the fraud has been carried out by the individual, and that belief will be based on facts, information and/or intelligence. Reasonable grounds cannot be supported on the basis of personal factors such as those listed in the amendment, or a hunch. It is critical to set out that authorised officers will be using those facts and will be bound by the public sector equality duty and the Equality Act.
The reasonable grounds test is a standard, widely accepted test used by various organisations, including the DWP, the Serious Fraud Office and the police. Further to that, to ensure that the reasonableness test is applied properly in practice, the PSFA will have built in place safeguards. For example, authorised officers must consider all the facts of a case known to them at that time when they decide what is reasonable. Authorised officers must ensure that each decision made relating to the use of the powers is documented and available for checking. Management checks will ensure that those procedures are followed correctly. Information holders can also request a review of a decision to issue an information notice if they feel that there were no reasonable grounds.
As I said, there will also be independent oversight of the use of powers by an independent body such as HMICFRS or the new independent chair. I am setting out this detail on the record now, but we will also be transparent about this for those who do not leaf through Hansard. The code of practice envisioned by this legislation for the PSFA elements of the Bill relates to civil penalties. As civil penalties are the mechanism for ensuring compliance with the information gathering powers, we will also set out in the code of practice, and in further published guidance if necessary, how the information gathering powers will be used in practice, as I am doing today. We will also fulfil the commitment that we made on Tuesday to talk about what will be in the codes of practice as we reach the relevant parts of the Bill.
Let me turn to the period of compliance. Our approach in the Bill accommodates the variation in size and type of fraud investigations that the PSFA is likely to take on. As such, the Bill allows information providers a minimum, critically, of 10 working days to comply. However, in practice, the information notices will be tailored on a case-by-case basis, with each being judged on its merits and with the time period applied appropriately. Similar approaches are used in HMRC. That, in turn, protects the information holder from being asked to produce information in an unreasonable timescale.
On Tuesday, we heard from John Smart, who said:
“Some of the smaller organisations might struggle to meet that 10-day requirement”.
That is why we will be tailoring the requirement. But, he also said,
“I still think it is a reasonable starting point. If you do not start with a reasonable starting point, for the larger organisations you end up deferring decision making and action being taken. I think 10 days is reasonable.”––[Official Report, Public Authorities (Fraud, Error and Recovery) Public Bill Committee, 25 February 2025; c. 46, Q81.]
As I said before, that is the minimum.
Again, we will set out the commitment to tailoring to ensure that we are proportionate and reflect the different types of organisations and individuals who might be asked for information in the code of practice or published guidance. Alongside the time period for compliance, an information provider will have the opportunity to request a review, which would include the ability to vary the time period for compliance if it was considered that a longer timeframe was needed. The current drafting outlines a five-layered process for information holders to request a review of an information notice that they have received. I can go through that detail if Committee members want me to, but I hope that that provides some reassurance on hon. Members’ points.
Rebecca Smith (South West Devon) (Con)
I thank the Minister for those points, but I seek a bit more clarification. There are references to “the Minister” in clause 3, and I want to be clear about this, because we talked a lot about the code of practice during the evidence session on Tuesday. Is the Minister saying that the code of practice will have reference to the authorised officers? So, for Hansard, where clause 3 refers to “the Minister”, it is actually more likely, through the code of practice, to be referring to the day-to-day operation of those investigators. The Minister also mentioned that the definition of reasonableness is as per other departmental records and is widely available. Just to clarify, will that also be in the code of practice so that it is easily accessible for anybody in the public to look at what that might include? I seek more clarification on those two points.
Georgia Gould
Yes, the code of practice will be much more operational guidance that will be targeted at the authorised officers and their day-to-day operational practice. It will include the information that I have set out.
The Chair
Does the shadow Minister wish to press amendments 10, 14 or 9, which were just debated, to a vote?
The Chair
With this it will be convenient to discuss the following:
Amendment 16, in clause 4, page 3, line 36, leave out “Minister” and insert “First Tier Tribunal”.
Amendment 17, in clause 4, page 3, line 38, leave out “Minister” and insert “First Tier Tribunal”.
Amendment 18, in clause 4, page 4, line 3, leave out “Minister” and insert “First Tier Tribunal”.
Mike Wood
The amendments are all about ensuring that there is not just independent oversight but an effective independent channel of appeal against information notices that does not just go back to the same organisation that issued the original notice. Clause 4 will allow for the person to whom the information notice is given to appeal the notice up to seven days after it is issued, but that appeal will go back to the Minister for the Cabinet Office—or, in practice, the PSFA—to review it and decide whether to revoke, amend or uphold the notice. As drafted, it gives the Minister significant power, as really the only responsible person who can review the decision to give the notice.
There therefore appears to be a significant lack of independent oversight. I would be grateful if the Minister could explain why there is no ability to have an independent appeal of the kind that would generally take place against HMRC decisions and notices, through the first-tier tribunal. That is why we tabled amendments 15, 16, 17 and 18: to change the appeal body from the Minister for the Cabinet Office to the first-tier tribunal. We are concerned that, given it is the Minister who has been given the power to investigate fraud, it is then a case of allowing the Minister to mark their own homework if they—or the people acting on their behalf—review the decisions themselves.
I would like to understand the Minister’s view on whether that is an effective use of ministerial time and capacity. Does she envisage that any such appeal decisions would be delegated? In the amendments, we propose to replace the Minister with the first-tier tribunal in that process, which would be equivalent to the processes that would be expected when a decision of HMRC is reviewed. Our amendments would ensure that an independent third party is involved with the review process.
I would be grateful if the Minister could explain why there should be no ability for such an appeal to be made, whether it is made immediately against the notice for information or perhaps as a second appeal stage. We need to be satisfied that there is a good reason why people who are the subject of those notices, which may be quite onerous, particularly for individuals and smaller organisations, should not have the ability to appeal to an independent body. Normally, natural justice would assume that to be the case.
Steve Darling
I concur about the safeguarding of individuals. While there may be an independent reviewer or chair, the challenge, for me, is who appoints them. If it ends up being the Minister who appoints the chair, how independent will they be? Given what we are seeing elsewhere in the world, how do we ensure that we build a structure of independence into the Bill that we may not previously have thought was needed? I am somewhat supportive of the proposals from colleagues, but equally, I look forward to hearing what the Minister has to say on the challenge.
Georgia Gould
Some points of clarity: the hon. Member for Kingswinford and South Staffordshire asked who would do the reviewing. A more senior officer from within the PSFA would complete that review, not the Minister themselves. The entire process would be overseen by a separate team who are accountable to an independent chair, and critically, who will report into Parliament to provide that level of independence.
The other important context is that the Bill also—we will come to this later—provides for the PSFA to become a statutory body, fully independent from the Minister. In the meantime, it is incredibly important that we have this process of oversight and the independent chair, as we discussed. All these issues are important for balance. We have to avoid giving fraudsters the ability to abuse the review process and frustrate investigations. As John Smart told the Committee on Tuesday, months is far too long, and adding a further route to appeal to the tribunal at that very early stage would add months, if not years, to our investigations into suspected frauds. We have tried to balance this very carefully to ensure that there are appropriate routes to review that sit within a system that is independently overseen.
I believe that we have found the right balance in the Bill, and I have explained those layers of review. They include internal review, which is the appropriate route that strikes the right balance between fairness and avoiding fraudsters frustrating the process. As I said, the internal reviewer will be a separate authorised officer, who will be—this is a requirement in clause 66—an authorised officer of a higher grade than the original decision maker. The way that these reviews are performed will be subject to oversight/ We will talk later in more detail about the oversight in the Bill, but it will include the inspections by HMICFRS and the day-to-day oversight by an independent chair, which could include live cases.
I explained in the previous debate—I did not go through the detail, but I can do so—the stages of an information notice going through if someone still does not agree that they should provide the information. Ultimately, it is really important that if a penalty is issued for non-compliance, the information provider can appeal to the relevant court against that penalty, so there is a formal appeal to a court at the end of the information-gathering process if it gets to that place. However, the intention of the powers—as I said, this will be written into the code of practice—is very much to work alongside those organisations that are gathering information, and to be proportionate to their size and the requests put forward, so I believe we have found the right balance.
Mike Wood
I thank the Minister for those responses, but I think that the first-tier tribunal is perfectly capable of dismissing applications that are without merit, without significantly extending the time. Given the importance of an independent appeal mechanism, I wish to push the amendment to a vote.
Question put, That the amendment be made.
Mike Wood (Kingswinford and South Staffordshire) (Con)
I beg to move amendment 12, in clause 4, page 3, line 33, at end insert—
“or of the duration of the period mentioned in section 3(4)(a)”.
The Chair
With this it will be convenient to discuss amendment 13, in clause 4, page 4, line 2, at end insert—
“, including by extending the duration of the period mentioned in section 3(4)(a) where satisfied that the person is reasonably unable to comply with the requirement to provide the information within the time required by the notice”.
Mike Wood
Amendments 12 and 13 are in a similar vein to amendment 14 —they allow the individual or organisation issued with an information notice to apply to the independent body or board for an extension to the 10 working days within which they are currently required to provide information requested in the notice, if they are reasonably unable to comply. Sorry, have I skipped ahead a section?
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Feel free to skip ahead to the conclusion.
Mike Wood
Sorry, it has been a while since I have been on a Bill Committee.
The amendments would allow the individual or organisation to apply for an extension to the 10 working days within which they are currently required to provide information requested in an information notice, if they are reasonably unable to comply. This is a common sense approach to support people who are engaging with the process and prevent them from being hit with penalties, which was never the intention of the legislation. This is also important because we do not know precisely what information the Minister will be able to ask individuals to provide, other than that an information notice cannot require the giving of particularly sensitive—such as excluded or special procedure—material, as defined in sections 11 to 14 of the Police and Criminal Evidence Act 1984. This includes confidential business records or journalistic material. Otherwise, the Minister for the Cabinet Office has a very open-ended power to require different types of information. It would be helpful if the Minister could explain whether the Government would consider allowing those issued with information notices to apply specifically for an extension if they cannot reasonably provide the information within the time period requested.
Steve Darling
I can add very little to what the shadow Minister said. Again, I am broadly sympathetic on the need to have these safeguards in the legislation, and on not knowing what the practice notes are. We are very much in the dark, so that does give us cause for concern.
Georgia Gould
The critical thing to note here is that we have been very clear in the Bill that 10 days is a minimum. As we heard in evidence, some organisations will find it very easy to provide the information within 10 days; others will find it harder. As I have already set out, we will ensure that responding to different kinds of organisations proportionately is referenced in the code of practice.
I previously explained why we believe that the time limits in the Bill for information requests are appropriate, and why we believe that internal review strikes the right balance in preventing fraudsters from frustrating the process. The current drafting includes powers for authorised officers to vary the duration of an information notice in clause 4. The clause allows an information notice to be varied subject to the outcome of an internal review. A variation of a notice can include amending the timeframe to comply with a request if it is found that a longer timeframe is required.
We have discussed how the Bill allows information-providers a minimum of 10 working days to comply, which in practice will be tailored on a case-by-case basis, with each case judged on its own merits and the time period applied appropriately. This is a similar approach to that taken by HMRC, for example: an authorised officer would take account of the nature of the information or documents required and how easy it will be for the person to provide or produce them. That, in turn, protects the information-holder from not being asked to produce information within an unreasonable timescale. In response to the amendment, I ran through what the reasonable grounds test will be and the kinds of thinking that authorised officers will have to go through to determine what information they will gather. That includes writing it down so that their thought processes in requiring information can be reviewed.
Steve Darling
I welcome that reassurance from the Minister, which we will take onboard.
Mike Wood
I thank the Minister for her response, which offered some moderate reassurance. We would be comfortable if either it was included in the Bill or we at least had sight of the code of practice, which will actually define that decision-making process. A fundamental flaw of this Bill Committee is that we are being asked to make decisions on something that may be produced in the future, of which we have no advanced sight. For now, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Georgia Gould
Clause 3 introduces a civil power that allows authorised officers to compel information from first and third parties, similar to that used by HMRC. Clause 4 introduces a right to request a review of a decision to issue an information notice within seven days of a notice being issued. The policy intention is that this provides adequate time for an individual or business to request a review of a decision to issue an information notice, and sets a time limit for a review that will balance any attempts that might be made to aggravate the information collection process by slowing down the fraud investigation unnecessarily. During the review process, authorised officers will work with information-holders to give them every opportunity to comply.
Steve Darling
The Minister referred to a review process; it would be really helpful if the Committee could be aware of how long that process is likely to take.
Mike Wood
Clause 4 gives the Minister a considerable amount of power to compel individuals, as well as organisations, to provide an unspecified range of information within what could be very tight timescales, on pain of a fine of £300 a day if they fail to comply. The only route to appeal these powers is going back to the person or organisation that is exercising them, and we are concerned about the natural justice of this approach.
The legislation, as drafted, involves no impartial third party in the review process on a case-by-case basis, so it leaves individuals with nowhere else to go if they disagree with what is being asked for, or cannot practically comply with the request in the specified timeframe. Our amendments aim to balance these powers, and I am naturally disappointed that the Minister was unable to consider accepting at least some of them.
Georgia Gould
First, it is important to set out that these powers will be used by authorised officers who sit within a professional standard. They are highly trained and have a code of ethics that they apply. It is a deliberately limited group of people to ensure that we have full oversight. The kind of decisions that they make will have to be written down, so they can be overseen by the team within the Cabinet Office, which is answerable to the independent chair and to another independent body, and that is likely to be HMICFRS. I think I have already set out, and it is in the Bill, that the reviews on a case-by-case basis will have to be done by another authorised officer who is of a higher grade than the one who made the decision. There will be no set time, but we will set out a range within the wider guidance.
The intention of the Bill is to ensure that we prevent and recover fraud against the public sector. We want to be reasonable and proportionate, and as I have said, we will set out further information about the size and scale of organisations and timeframes within the code of practice. What we really need to avoid is organisations that have committed fraud using appeals to frustrate the process and keep this going for ages, so that money is moved and we lose the ability to recover critical public funds. We think that a huge amount of oversight has been put into this overarching package, but we have to ensure that we allow authorised officers to get the information they need and recover fraud. Finally, it is important to remember that, if we go through a process where somebody does not provide that information, and a fine is levied, they are able to apply to the courts at that point. There is that fundamental backstop to the system.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Gerald Jones.)
Public Authorities (Fraud, Error and Recovery) Bill (Fourth sitting)
Thursday 27th February 2025
(1 day, 18 hours ago)
Public Bill CommitteesPublic Authorities (Fraud, Error and Recovery) Bill 2024-26 View all Public Authorities (Fraud, Error and Recovery) Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 February 2025 - (27 Feb 2025)
The Parliamentary Under-Secretary of State for Work and Pensions (Andrew Western)
It is a pleasure to serve under your chairship, Mrs Lewell-Buck. Clause 5 is an explanation of the principles related to information sharing that pertain to the Public Sector Fraud Authority and the Cabinet Office. It sets out how the disclosure of information would work for the purpose of facilitating the Minister’s exercise of the core functions. It refers to how the Minister may use information disclosed under subsection (1); the specific purposes for which it may be disclosed; and what the Minister may not use information for. Information must not be used for any purpose other than the purpose for which it was disclosed and may not be disclosed to any other person without the consent of the Minister. I commend the clause to the Committee.
Mike Wood (Kingswinford and South Staffordshire) (Con)
Clause 5 will give the Minister enormous powers to request and share information for the purpose of facilitating the Minister’s exercise of the core functions under the Bill. Given that the Minister’s core functions are to decide whether to investigate and take enforcement action, we are concerned that almost any information could be shared to facilitate the making of those decisions.
Likewise, the Minister may share information onward. If they give consent, the information may go further yet. Again, this is a case of the Minister marking their own homework. They get to decide who knows what and whether it gets shared onwards, without any external oversight from an impartial third party. I would be grateful if the Minister explained what sort of information the Government envisage being requested, under what circumstances, and what safeguards will apply to the sharing of that information.
Andrew Western
I thank the shadow Minister for his question. I would not want to second-guess the specifics of what may be required in the sharing of information on a case-by-case basis; clearly that sort of speculation may restrict us unnecessarily. What I would say, however, is that the independent oversight powers laid out for the execution of the PSFA’s work would be in place to ensure that if anybody, up to and including the Minister, were considered to have overstretched their powers, it would be able to comment and investigate as necessary.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Amendment of the Investigatory Powers Act 2016
Andrew Western
I beg to move amendment 1, in clause 6, page 4, line 28, in column 1, after “Office” insert
“, so far as relating to the Public Sector Fraud Authority”.
This amendment limits the designation of the Cabinet Office as a relevant public authority for the purposes of Part 3 of the Investigatory Powers Act 2016 so that it is designated only so far as relating to the Public Sector Fraud Authority.
Andrew Western
I am sure that colleagues will agree that the amendment is straightforward. It will limit the designation of the Cabinet Office as a relevant public authority for the purposes of part 3 of the Investigatory Powers Act 2016, so that it is designated only in so far as it relates to the Public Sector Fraud Authority.
Clause 6 sets out the purposes of the amendment to the 2016 Act and is straightforward in its terms. It will make a small tweak before the entry for the Common Services Agency for the Scottish Health Service to insert “Cabinet Office” and the relevant provision.
Mike Wood
As the Minister says, the clause will add the Cabinet Office to the Investigatory Powers Act 2016. The Act governs the powers available to the state to obtain communications and communication data, provides statutory safeguards and clarifies what powers different public authorities can use and for what purpose. This legislation will give the Cabinet Office further and greater investigatory powers.
Government amendment 1 seeks to clarify that this applies not to the whole of the Cabinet Office, but to the Public Sector Fraud Authority only. I am glad that the amendment will rectify that fairly major drafting error. Obviously, the Opposition support the amendment.
The Parliamentary Secretary, Cabinet Office (Georgia Gould)
I am sorry to have arrived late. Clause 6 will provide essential powers to obtain communications data from telecommunications providers, as and when necessary, as part of an investigation into fraud against the public sector. As a result of the clause, the PSFA will be listed under column 1 of schedule 4 to the Investigatory Powers Act 2016 and will thereby be granted the power to request communications data—the how, where, what and when, as opposed to the content, of communications—for the purposes of investigating suspected fraud against the public sector. The clause will not give the PSFA surveillance and covert human intelligence powers.
The precise listing of the PSFA in schedule 4 will not permit self-authorisation to use the relevant powers; a request for communications data in the course of a criminal investigation must be approved by the independent Office for Communications Data Authorisations. The powers also come with extra oversight from the Investigatory Powers Commissioner’s Office, which will inspect the designated communications data single point of contact that facilitates the lawful acquisition of communications data and effective co-operation between the IPCO and public authorities that have these powers.
I welcome the Opposition’s support for Government amendment 1, which is necessary to align us with the Home Office’s new approach to restrict powers to specific teams in other Departments within the same schedule. The amendment will change the way the Department appears in schedule 4 to the Investigatory Powers Act, as it will restrict the use of the powers to the Public Sector Fraud Authority only, not the Cabinet Office as a whole. The amendment will ensure that the use of the powers is properly restricted and that there are no unintended consequences for other parts of the Cabinet Office.
I commend clause 6, as amended by Government amendment 1, to the Committee.
Amendment 1 agreed to.
Clause 6, as amended, ordered to stand part of the Bill.
Clause 7
Police and Criminal Evidence Act 1984 etc powers
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Schedule 1.
Clauses 8 and 9 stand part.
Georgia Gould
Clause 7 and schedule 1 cover the investigative powers in the Police and Criminal Evidence Act 1984. Clause 8 will give the PSFA a legal route to apply to a court for an audit in relation to property that has come into its possession in the course of a fraud investigation. Clause 9 will bring the PSFA under the oversight of the Independent Office for Police Conduct for serious complaints about its use of PACE powers.
Clause 7 will designate authorised investigators with the necessary authority to use limited provisions from PACE within the remit of public sector fraud investigations. These include powers to apply to the courts for a warrant to enter and search premises and to seize evidence, and special provisions to apply to the courts to gain access to certain types of material that are regarded as excluded material or special procedure material.
These are criminal investigation powers and will only be used in criminal investigations to enable all reasonable lines of inquiry to be followed and all relevant evidence to be collected. PSFA staff must be specifically authorised by the Minister before they can use the powers in the clause. Authorised investigators will be able to access and process evidence under the same conditions applicable to the police, ensuring that robust investigative protocols are followed. PACE has its own code of practice, and authorised investigators will adhere to the provisions that apply to the PSFA’s PACE powers, in particular PACE code B, which deals with the exercise of powers of entry, search and seizure.
Clause 7 is fundamental in reinforcing the Bill’s objective of combating public sector fraud effectively by equipping investigators with powerful investigative tools, governed by long-standing safeguards. The provision of such powers is essential and reflects our commitment to holding to account those who defraud public resources, maintaining the integrity of public administration.
Schedule 1 will modify the provisions of PACE adopted in clause 7 so that they apply to authorised investigators within the PSFA when they are conducting criminal investigations into fraud offences committed against the public sector. Clause 7 will enable these modifications to have effect; they include equating authorised investigators with constables for the relevant sections of PACE, clearly defining the range of their responsibility and authority. An amendment to replace “articles or persons” with “material” in schedule 1 is specifically intended to clarify the scope of investigations conducted by the PSFA. By defining the term more narrowly with reference to “material”, it reflects the fact that the PSFA will not be conducting searches of individuals.
While detailed stipulations regarding the retention and handling of seized material are set out in PACE, schedule 1 will provide the essential adaptations necessary for the authorised investigators to carry out their roles effectively while adhering to established legal safeguards. Overall, schedule 1 is necessary to equip authorised investigators with precise, tailored powers from PACE so that they can enforce the legislative aim of combating fraud within the public sector.
Clause 8 will give the PSFA a legal route to apply to a court for an order in relation to property that has come into its possession in the course of a fraud investigation. The order will determine who the property should be returned to and whether changes need to be made to the property before it is returned or, if appropriate, destroyed, subject to suitable safeguards.
The PSFA will not routinely need to use this power. It will use it only in three specific situations: first, when there is conflicting evidence as to who the property should be returned to; secondly, when it is not possible to return property to its owner, and the PSFA is otherwise liable to retain it indefinitely; or, thirdly, when it has been identified that the property could be used in the commission of an offence. Clause 8 will protect the PSFA in situations in which it could otherwise face having to retain property indefinitely, at ongoing cost to the taxpayer, and where it cannot return the property to its owner. It will ensure effective management and disposal of items, helping to prevent misuse while reducing the administrative burden.
The use of a magistrates court to determine the appropriate course of action is a critical safeguard. This external judicial oversight ensures transparent and lawful disposal decisions. A mandatory six-month waiting period is built into the process before property can be disposed of or destroyed. This period will allow any interested parties to make claims on the property. However, if a magistrates court orders that the property be returned to its owner, there is no waiting period for that return. Further application to court can be made if initial orders do not resolve ownership or disposal issues, ensuring ongoing flexibility and fairness in property management. Equipping the PSFA with these powers is vital for appropriately concluding fraud investigations and reflects similar practices in other Government Departments.
I turn to clause 9. The PSFA’s use of PACE powers will be subject to robust internal and external scrutiny. Elsewhere in the Bill, clauses 64 and 65 set out provisions under which His Majesty's inspectorate of constabulary and fire and rescue services will work with the PSFA. Clause 9 amends the Police Reform Act 2002 to extend the functions of the director general of the Independent Office for Police Conduct to include oversight of public sector fraud investigators and enables them specifically to consider the PSFA’s use of PACE powers and associated investigations. In doing so, this clause enables the IOPC to be engaged where necessary to investigate death, serious injury, accusations of staff corruption or serious complaints against the PSFA’s use of PACE powers, although we hope that none of those will come to be.
The amendments made by clause 9 also include allowing the Minister to issue regulations conferring functions on the director general in relation to these investigations. In practice, this enables the Minister to detail in due course the specific remit of the IOPC in relation to the PSFA. This clause represents a typical approach to engaging the IOPC in legislation, similar to that of other law enforcement agencies.
The clause will also enable the sharing of information between the director general, the Minister and those who act on their behalf. Additionally, it will enable the sharing of information with the Parliamentary Commissioner for Administration to facilitate potential collaborative investigations with the IOPC. The clause will ensure that any information sharing complies with existing data protection and investigatory powers legislation. Incidents and complaints will be either self-referred from the PSFA or referred to the IOPC via a third party. Any potential cases of serious injury or death that occur in the exercise of the PSFA’s PACE powers would be automatically referred to the IOPC for review.
The use of the independent complaints function offered by the IOPC is a key element of the oversight landscape, ensuring that the PSFA is held accountable to the highest standards in the exercise of PACE powers, and providing confidence to the public that the Government take their responsibilities in using the powers seriously. I went through a lot of detail there, but I know that the Committee is concerned about the proper oversight of powers, as it should be.
Mike Wood
Clauses 7 to 9 give authorised investigators the powers to enter and search premises and execute search warrants, and powers for the seizure, retention and disposal of property. Those are obviously extensive powers with potentially significant consequences. While strengthening powers to tackle fraud is welcome, we have some concerns. For example, clause 7(3) states:
“An authorised investigator is an individual who is authorised by the Minister to exercise the powers conferred by this section.”
The clause would extend some PACE powers to authorised investigators at the PSFA to investigate offences of fraud against a public authority.
An authorised investigator is defined as a Cabinet Office civil servant of at least higher executive officer grade. What training will those investigators have in order to carry out their functions appropriately? In evidence earlier this week about public sector investigators, Dr Kassem said:
“Are they trained and do they have the proper skills to enable them to investigate without accusing, for example, innocent people and impacting adversely vulnerable individuals? That would be the main challenge, in my view.”––[Official Report, Public Authorities (Fraud, Error and Recovery) Public Bill Committee, 25 February 2025; c. 6, Q2.]
Paragraph 3(2)(b) of schedule 1 states that an authorised investigator may be “a higher executive officer”, which is adding to the positions specified in PACE. The comparable position in the police appears to be specified as
“a police officer of at least the rank of inspector”.
Is the Minister satisfied that a higher executive officer is of equivalent rank and experience to a police inspector? Salary bands would suggest that they are not. A quick search suggests that the starting salary of a higher executive officer may be as little as £38,000, whereas a police inspector in London would typically be on at least £61,000. That suggests that there will be some disparity in the level of seniority that one might expect between the two positions. Is she satisfied that a higher executive officer has the seniority for the very far-reaching powers that the Bill would give them?
Turning to clause 8, it is welcome that there is a role for the magistrates court—we finally have some external oversight—where a Minister must apply to make a decision about an individual’s property.
Clause 9 amends the Police Reform Act 2002 so that an individual may go to the director general with complaints or misconduct allegations in relation to the Public Sector Fraud Authority. However, it appears that there remains discretion for the Minister, who only “may” make regulations conferring functions on the director general in relation to public sector fraud investigators and “may” disclose information to the director general. Does the Minister intend to make those regulations? What may they contain? If regulations are made under those provisions, what parliamentary procedure will they be subject to?
Georgia Gould
I thank the shadow Minister for those questions. As he said, these are important powers, and it is critical that the right training is in place. I reassure him that all these authorised officers will have relevant training to the standard that police officers have for the use of the PACE powers. As he set out in his remarks, an application for search warrants must be made to a magistrate, so there is already an external body ensuring that they will be used correctly.
Another critical component of the PSFA’s use of the powers is that if an authorised officer is visiting a property, they will be accompanied by a police officer and will not go their own, so we have not included powers of arrest because of the nature of the PSFA investigations as separate to the Department for Work and Pensions. The powers sit within a range of safeguards, some of which have been mentioned. To remind Members, His Majesty’s inspectorate of constabulary and fire and rescue services will also oversee the use of all these powers, as it has experience of doing that. The powers will be overseen in any serious circumstances by the Independent Office for Police Conduct.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clauses 8 and 9 ordered stand part of the Bill.
Clause 10
Acting for another public authority
Question proposed, That the clause stand part of the Bill.
Georgia Gould
As I have set out, the Bill provides the key powers to investigate suspected fraud against the public sector. However, to be able to deliver a holistic counter-fraud service and recover vital funds lost to fraud and error, powers are needed to act on behalf of other public authorities for recovery action. That is what clause 10 outlines. The PSFA will already have conducted investigations before the recovery phase and will know the background to the case and the people and businesses involved. It will be able to leverage that information and those relationships to secure recovery, prioritising voluntary repayments first. It will then be able to utilise the proposed recovery powers already used across Government to get back fraudulent funds where people can afford to repay their illicit gains but are refusing to engage with us.
The recovery of fraudulent funds is complex, as is fraud itself. In 2021-22, the Government’s fraud landscape report found that only 23% of fraud losses were recovered. That is not good enough. Having a central recovery function within the PSFA will allow it to develop the expertise and capability required to drive effective recovery action on behalf of other public bodies. Providing the option to keep some of the recovered funds, subject to agreements with the public bodies concerned, helps to fund the development of that recovery expertise and provides value for money for the Government and taxpayer.
Clause 11 outlines the requirement to issue a recovery notice before proceedings can be brought to a court or tribunal. The notice must outline what the Government believe is owed and why. It must also provide information as to how the amount can be voluntarily repaid. Once issued, the liable person has a minimum of 28 days to respond. The recovery notice will effectively signal the end of the PSFA investigation.
During an investigation, a suspected liable person will already have had the opportunity to make their case and provide evidence to support their position. This provides the liable person with further opportunities to positively engage on the matter, either through voluntary repayment or by providing additional evidence. It also provides them with ample opportunity to prepare for a potential future court or tribunal proceeding. The issuing of a recovery notice is therefore an important step that promotes fairness and transparency in proceedings by providing a liable person with an overview of the position.
Clause 12 provides a key safeguard for the use of the recovery powers. During an investigation, the PSFA will collect and assess evidence to determine whether a liable person or business received payments made as a result of fraud or error. It will outline its reasonings in the recovery notice. However, it will be able to use the proposed recovery powers only if a liable person agrees and a court or tribunal has made a final determination of what is owed.
We will not be making unilateral decisions as to what is owed. Instead, this process firmly embeds independent judicial decision making. If a liable person disagrees with the determinations, they can present their case in a court or tribunal. If a liable person agrees, we do not need to seek confirmation from a judge, making important judicial time and cost savings and ensuring that we do not further overburden the judicial system.
Those are all important steps in commencing our recovery action. The positive impact of the Bill is predicated on being able to effectively recover funds identified as being lost to fraud or error. We have already agreed that recovery is a vital new core function of my Department, and it is one that we should strive to ensure can operate effectively to return money lost to fraud and error to the public purse.
Mike Wood
Clause 10 allows the Minister for the Cabinet Office to act on behalf of another public authority to recover a recoverable amount, including bringing court or tribunal proceedings, and recovered money will be returned to the other public authority unless it is agreed that the Minister can retain some or all of it. We have some questions about what has to be agreed ahead of time. Can the Minister just act, or do they need prior approval from the public authority beforehand, so that there is clarity about the basis on which the Minister for the Cabinet Office is acting and any division of recovered funds?
Clause 11 sets out the recovery notice that the Minister must give before proceedings can be brought to court or a tribunal, and what is included in it. How is it decided how much can be recovered? What assets are taken into account, and what is the process before the legal system becomes involved?
Clause 12 sets out that the recovery methods can be used only to cover the amount where the liable person agrees or a court or tribunal has determined the amount is recoverable. Where the liable person does not engage, what mechanisms exist to encourage them to do so? Are there penalties if a court or tribunal is involved, and how long is the legal process typically expected to take, given current capacity? What does capacity look like at the moment? We feel that, in principle, the powers could be proportionate, but that depends on how they are to be exercised. I would be very grateful if the Minister clarified some of those points.
Georgia Gould
The first point to clarify is that before any investigation and any debt recovery are started, there would be a vulnerability test on that individual, and that would be part of the basis for the decision making. As for whether there was a voluntary agreement about the recovery of debt, a conversation would happen with the individual, but there is a limit to the amount that would be recovered—up to 40% of their assets in their bank account for fraud and 20% for error. In terms of whether people would try to frustrate the process by unnecessarily reviewing it, one of the features of the Bill is that it can include interest on the money that is paid, so that is a disincentive to continue to drag out the process, and the matter can be resolved as quickly as possible—and voluntarily.
On the initial phase of the PSFA’s investigatory and debt recovery work, if there is a limited number of officers, we do not expect a high burden on the court system—we expect less than double digits to be taken through initially—and we believe that the provision around interest is a key disincentive against frustrating the process.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Clauses 11 and 12 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Gerald Jones.)
Border Security, Asylum and Immigration Bill (First sitting)
Thursday 27th February 2025
(1 day, 18 hours ago)
Public Bill CommitteesBorder Security, Asylum and Immigration Bill 2024-26 View all Border Security, Asylum and Immigration Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 February 2025 - (27 Feb 2025)
The Chair
We are now sitting in public and the proceedings are being broadcast. Before we begin, I remind Members to please switch electronic devices to silent, and that tea and coffee are not allowed during sittings. Date Time Witness Thursday 27 February Until no later than 12.10 pm Refugee Council, Scottish Refugee Council, British Red Cross Thursday 27 February Until no later than 12.40 pm Immigration Law Practitioners’ Association, Migration Observatory Thursday 27 February Until no later than 1.00 pm The Children’s Commissioner for England Thursday 27 February Until no later than 2.40 pm National Police Chiefs’ Council, National Crime Agency, Crown Prosecution Service Thursday 27 February Until no later than 3.20 pm Migration Watch, Tony Smith, former Director, UK Border Force, Centre for Policy Studies Thursday 27 February Until no later than 3.40 pm David Coleman, Emeritus Professor of Demography, University of Oxford Thursday 27 February Until no later than 4.00 pm Professor Brian Bell, Professor of Economics, King’s College London Thursday 27 February Until no later than 4.20 pm Home Office
We will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication, and a motion to allow us to deliberate in private about our questions before the oral evidence session. In view of the time available, I hope we can take these matters formally, without debate. The programme motion was discussed yesterday by the Programming Sub-Committee for the Bill.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 11.30 am on Thursday 27 February) meet—
(a) at 2.00 pm on Thursday 27 February;
(b) at 9.25 am and 2.00 pm on Tuesday 4 March;
(c) at 11.30 am and 2.00 pm on Thursday 6 March;
(d) at 9.25 am and 2.00 pm on Tuesday 11 March;
(e) at 11.30 am and 2.00 pm on Thursday 13 March;
(f) at 9.25 am and 2.00 pm on Tuesday 18 March;
(g) at 11.30 am and 2.00 pm on Thursday 20 March;
2. the Committee shall hear oral evidence in accordance with the following Table:
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 40; Schedule 1; Clauses 41 to 47; Schedule 2; Clauses 48 to 57; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 20 March.—(Dame Angela Eagle.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Dame Angela Eagle.)
The Chair
Copies of the written evidence that the Committee receives will be made available in the Committee Room.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Dame Angela Eagle.)
The Chair
We are now sitting in public again, and the proceedings are being broadcast. Before we start hearing from witnesses, do any Members wish to make a declaration of interest in connection with the Bill?
Susan Murray (Mid Dunbartonshire) (LD)
I want to let the Committee know that I know Daniel O’Malley from Scotland through the Liberal Democrats.
Kenneth Stevenson (Airdrie and Shotts) (Lab)
I have previously met Daniel O’Malley as well.
The Chair
Very popular. If any interests are particularly relevant to a Member’s questioning or speech, they should declare them again at the appropriate time. We will now hear oral evidence from the Refugee Council, the Scottish Refugee Council and the British Red Cross. We must stick to the timings that the Committee has agreed in the programme motion. For this panel, we have until 12.10 pm. Could the witnesses please briefly introduce themselves for the record?
Enver Solomon: Thank you very much, Chair. My name is Enver Solomon, and I am the chief executive of the Refugee Council.
Mubeen Bhutta: Good morning; I am Mubeen Bhutta, the director of policy research and advocacy at the British Red Cross. I think you have all been told that I am a hearing aid user; I am just having an issue with one of my hearing aids, so I need to step out and step back in, if that is okay.
The Chair
Yes, that is okay.
Daniel O’Malley: I am Daniel O’Malley, policy and public affairs specialist with the Scottish Refugee Council.
Matt Vickers (Stockton West) (Con)
Q
Enver Solomon: I am happy to take that one. Our view is that this legislation is rightly seeking to disrupt the criminal gangs—the smuggling gangs. The trade is heinous; it is very damaging to people and it needs to be stopped. In that context, the Border Security Command is an understandable response. I think the issue that we have with it is that it is very difficult to simply rely on enforcement to tackle what is a complex and challenging situation.
The Bill is putting multiple eggs in the basket of enforcement, not just through the Border Security Command but by introducing a number of new offences. Our view, based on our frontline practice and work over many decades with people who have come to this country from war zones, having fled persecution or having been victims of modern slavery, is that that strategy will fundamentally fall short, because it is very difficult to change behaviour by adopting a primarily enforcement approach, which is primarily driven by further prosecution and creating new laws.
Essentially, new laws, such as the offences created in the Bill, are pretty much a blunt instrument to deal with behaviour that drives people to seek protection in other countries and to come here seeking asylum. I think that the evidence, from the offences created in previous legislation, demonstrates that they have not acted as a deterrent.
To sum up, enforcement is an understandable and legitimate approach, but it is only one approach, and it needs to be combined with other approaches that focus on international diplomacy and co-operation, and, critically, on additional legal routes. If you look at the evidence, particularly from the US under the previous Administration, the combination of those three can have a demonstrable impact on reducing irregular arrivals.
Despite the intention that this Bill has set out, our concern is that it will not deliver the outcome—the understandable and credible outcome—that the Government are trying to achieve, which is to stop the people smugglers and to stop people making dangerous crossings. It is focusing too much on an enforcement-driven agenda.
Matt Vickers
Q
Enver Solomon: We would have liked to see more provisions that look at opening up targeted, additional humanitarian pathways, additional legal routes, and additional mechanisms for people to seek humanitarian protection and make applications for asylum without necessarily having to take dangerous journeys. We have advocated for a targeted humanitarian visa to be piloted for specific nationalities where there is a high grant rate.
We would also have preferred to see the full repeal of the Illegal Migration Act 2023—not all provisions have been repealed. It is very positive that a significant number have been repealed, and that the Government have started to clear the backlog and essentially end the meltdown of the asylum system under the previous Administration, with the failed implementation of the Act. That is positive, but we think that retaining other provisions in the Act, particularly the provisions on inadmissibility, and not repealing the differential treatment provisions in the Nationality and Borders Act 2022, contribute to greater dysfunction in the system.
The Government’s laudable and correct intention to bring greater efficiency and competence to the system is absolutely right, but having multiple pieces of legislation that just create greater dysfunction will not ensure that you get an effective end-to-end system. You do that by ensuring that you have reliable, speedy decision making on asylum; that decisions are right first time; that if people are granted protection, they can move through the system effectively with appropriate support; and that if people are not granted protection, the right steps are in place to support them. The focus needs to be much more on getting the asylum system to function, with a clear vision of its purpose, than on layering more and more legislation on to an already incredibly complex legislative system, which actually just creates further dysfunction.
The Chair
Before I go to the Minister, can I just check with Mubeen that you can hear us okay?
Mubeen Bhutta: Sorry?
The Chair
If we speak louder, is that better?
Mubeen Bhutta: Yes, that is helpful. I do apologise; it is a technical thing.
The Minister for Border Security and Asylum (Dame Angela Eagle)
Q
Enver, thank you for your evidence. You welcomed the repeal of the Safety of Rwanda (Asylum and Immigration) Act 2024 and the majority of the Illegal Migration Act, which this Bill accomplishes. Could you talk about your experience of trying to live with those Acts on the statute book? Some argue that those bits of legislation were the only deterrent that we could have had. Can I have your thoughts on whether they worked?
Enver Solomon: Absolutely. In short, they were a disaster. They were a disaster in terms of the lived experience of people who had come from places such as Sudan; we know about the civil war there. They created huge uncertainty and anxiety. Through our work, we saw a rise in levels of great mental distress, and even in suicide ideation, as a consequence of those pieces of legislation, which led to what we described as a system meltdown. That was a fundamental meltdown that resulted in the system pretty much coming to a standstill. The system slowed down, with productivity in asylum decision making at its lowest level since the height of the covid pandemic. It is absolutely right that steps were taken to address that and to ensure that the asylum system is functioning effectively.
The asylum system has to deliver integrity. It has to ensure that the public have trust in a system that functions. It functions by ensuring that decisions are fair—the great British value of fair play—by ensuring that decisions are taken in a timely fashion and by ensuring that taxpayers’ money is well spent. That means you do not have billions being wasted every year on housing people in hotels that become flashpoints for community tensions. The system also works effectively when it ensures that people are supported to integrate and to go on and contribute to communities across the country in the way that generations of refugees have done. Critically, you must also ensure that if people are not granted protection, there are appropriate pathways to support them to return to the countries they have come from.
Dame Angela Eagle
Q
Enver Solomon: I will let my colleagues come in.
Daniel O’Malley: In relation to the European convention on human rights, frankly, coming out will not help anyone—it will not make the system any more efficient. For example, when it comes to the human trafficking provisions in the Illegal Migration Act, we want to see more of those repealed because they undermine human trafficking protections in Scotland.
The broader repeal that has happened of the Illegal Migration Act and the statutory instrument laid down to alter that Act has aided, for example, the guardianship programme in Scotland, which gives a guardian to unaccompanied minors in Scotland and was put on to a statutory footing in Scotland under the Human Trafficking and Exploitation (Scotland) Act 2015. It helps that programme because asylum claims were previously just not being made under the IMA, so that programme had thousands more people in it. The programme was operating, but it was getting overloaded with more and more people.
The wider point is that there are protections that we are signed up to—for example, the UN convention for refugees. Continuing with those is absolutely right; the repeal of them will not make the system any more efficient and it will not be a deterrent to anyone.
Dame Angela Eagle
Q
Mubeen Bhutta: I do not have anything more to add to the important points that Daniel made.
Mr Will Forster (Woking) (LD)
Q
Mubeen Bhutta: I did not quite catch the first bit of your question, but I think you are asking about safe and legal routes. I endorse some of the comments that my colleague Enver has already made. We welcome the Bill. We welcome the intention of the Bill around reducing the loss of life in the channel, but that is only half of the story.
It is really important that we look at the reasons why people are putting their lives in the hands of people smugglers in the first place. It is often because there is no other choice—there is no route that they can take. We would like to see more safe and legal routes, whether that is new routes, such as enabling people to apply for a humanitarian visa in the country that they are in to come directly to the UK and then be able to claim asylum, or expanding existing routes such as family reunion, so that there is more eligibility for people to use those routes.
It is really important to look at both sides of the coin. In a way, you could consider this Bill to be looking at the supply of this sort of activity, but it does not do anything about the demand. People will still need to make those journeys if no other routes are available.
Daniel O’Malley: For us, this is another migration Bill on top of many migration Bills. The system that people seeking asylum currently face is convoluted and arbitrary, and it is founded on hostility. As Mubeen rightly said, it is about the enforcement and stopping people crossing, rather than creating a more efficient asylum system. For us at the Scottish Refugee Council, that is what we are concerned about in the Bill. You talked about the Bill being quite narrow, but there are aspects of it that are far too broad and that can be applied in too broad a manner.
For the Scottish Refugee Council, the asylum aspects of the Bill do not address an updating of the asylum system. There are points on integration that should be considered as well. Nothing in the Bill talks about the integration of people seeking asylum while they are in the system. We commend the Government for speeding up the clearing of the backlog, which is great, but work needs to be done to help people who are in the system to integrate into the country. About 75% of people in the system will typically be granted refugee status, so work needs to be done to help them to integrate into communities, rather than having them in asylum accommodation or hostile environments.
The Government are rightly looking at asylum accommodation and the Home Affairs Committee is also doing an inquiry into it, so we know the work is being done. We would have liked to see the Bill contain a point about integration. The work in Scotland on this is the “New Scots Refugee Integration Strategy”, with an approach to integration from day one of arrival. We would like to see that extended to the UK level as well, mirroring what has also been done in Wales.
Mike Tapp (Dover and Deal) (Lab)
Q
Enver Solomon: I think those measures are legitimate. As I said, it is important to take steps to disrupt the activity of gangs that are causing huge harms to the lives of individual men, women and children, who are often extremely vulnerable. Attempts such as the powers you referred to are important and have a role to play—I am not disputing that. What I am saying is that they need to be used proportionately and to be clearly targeted at the individuals behind the criminal gangs and the trade of the criminal gangs.
Our concern is that, by broadening criminal powers in the Bill and specifically by introducing new offences, individuals will be caught up in that process. People who are coming across in very flimsy and dangerous vessels will end up being criminalised through no fault of their own. We are also concerned that using further laws—as has been seen across a whole range of different areas of public policy—is a blunt instrument to try to change the behaviour of people.
People will not stop getting into flimsy dinghies and coming across the channel or the Mediterranean because of new offences that they might face. They will probably know very little about the nature of those offences. They will know very little about the new rules that mean, if you get refugee protection, you will no longer be able to go on and gain British citizenship. We know that from our experience: they will know nothing about that, so it will not change behaviour or provide the deterrence that I think it is hoped it will provide.
That is why you need to use these powers in a very targeted, proportionate way that deals with the prosecution of the criminal behaviour but does not result in, in effect, punching down on those vulnerable people who are getting into the boats because they want to seek safety. It will not change their behaviour. That is our experience from having worked with refugees and people seeking asylum over many decades.
Pete Wishart (Perth and Kinross-shire) (SNP)
Q
Enver Solomon: I would say not. I will come to clause 18 in a second, but I encourage the Committee to look at clauses 13 and 14. In our submission, we proposed that they should be amended to ensure the focus of the new offence is on people smugglers and not on those seeking protection in the UK. We also said that clause 15 should be amended to include other items that are important for reducing the risk that people face when attempting to cross the channel, and that the Government should consult widely to ensure the list is as extensive as is necessary.
On endangering others, given that, as Committee members will know, many of the boats now used are barely seaworthy and overcrowded, and that the numbers crammed into them are increasing, clause 18 could cover many more people than those whom the offence is apparently targeted at—that is, the people smugglers. On Second Reading, the Home Secretary gave some useful examples of the types of behaviour that could result in people being prosecuted, including physical aggression, intimidation, the rejection of rescue attempts and so on. We think the wording should be amended to reflect specific actions to ensure that the offence is very clearly focused.
We argue overall that these new offences are an extremely blunt instrument to change behaviours, and they will not have the desired effect of changing behaviours and stopping people getting into very dangerous, flimsy vessels.
Daniel O'Malley: To add to what Enver says, yes, it is a blunt instrument. We operate a refugee support service across the whole of Scotland, and when people come to our services they do not talk about the deterrence or anything like that; they talk about what they see once they get here. The environment that is created around people seeking asylum and refugees does not deter them from coming here, but once they are here, they feel that there is a threat to their protection and that their status here is under threat.
The language in these deterrents does not deter anybody from coming here; it just causes a hostile environment. That was the situation created by the previous Bills under the previous Government. We hope that will not be continued with the new Bill and other changes the Home Office is making. At the end of the day, when people come to our services and talk about stuff like this, they talk about how it makes them feel when they are in the country, not about how it deters them from coming here.
Chris Murray
Q
Enver Solomon: In short, what happened with the system meltdown that I referred to is that processing did pretty much come to a standstill. You had a huge and ever-growing backlog, and people were stuck in limbo indefinitely in the system. The number of people in hotels—asylum contingency accommodation, as it is called—reached record numbers. Hotels were being stood up in communities without proper prior assessments with relevant agencies of the potential needs—health, the NHS, and tensions vis-à-vis the police.
We work in Rotherham, where a hotel was brutally attacked and refugees were almost burned alive in the summer. My staff were in contact with people in the hotel who were live streaming what was happening. They thought that they were going to get burned alive. That hotel in Rotherham should never have been opened. It was always going to be a flashpoint. It was located in an incredibly isolated area, there were not appropriate support services, the local services were not properly engaged with in advance and there was no appropriate planning and preparation. That story, I am afraid, was repeated across the country because of the dysfunction and the system meltdown that the previous pieces of legislation resulted in. It is absolutely critical that we learn the lessons from that and do not repeat those mistakes.
There is no need to use asylum hotels. As I understand it, there are roughly 70,000 individual places within the asylum dispersal system today. If we had timely decisions being made in a matter of months, people moving through the system, a growing backlog in the appeal system dealt with by ensuring the decisions are right first time, and people having good access to appropriate legal information and advice from representation, which is a huge problem, you would begin gradually to fix the system.
It will take time to fix the system and create efficiencies, but it is absolutely vital that plans to move away from the use of hotels are taken forward rapidly, and that the current contracts in place with the three private providers to provide dispersal accommodation are radically reformed, because they just create community tensions. They are pivoted towards placing people in parts of the country where accommodation is usually cheap and where there are going to be growing tensions, often without support in place for people in those communities.
Mubeen Bhutta: I did not fully catch your question, Chris—I apologise.
Chris Murray
It was about the impact on local communities of the dysfunction created by the Illegal Migration Act and the Rwanda Act, and how much you attribute that dysfunction—especially the growing use of hotels for asylum seekers—to those Acts, which we are proposing to repeal.
Mubeen Bhutta: I probably do not have a huge amount more to add to what Enver just said, but it goes back to what was said earlier about the speed of decision making, the time that people are left in accommodation, the suitability of that accommodation, the impact on their wellbeing—certainly in terms of what we three see through our services—and the need for a comprehensive strategy. It comes back to what we said at the beginning about what is in the Bill, and what needs to go alongside it that is not in the Bill, around integration.
Jo White (Bassetlaw) (Lab)
Q
Mubeen Bhutta: We do not fully know what the impact of that new offence will be, because it is not enforced yet. It is helpful to see that there is provision in the drafting around charities and their role, but it is not certain how that will play out. Our concern is also that new offences could impact the overall aims around the focus on seeking protection. It could influence behaviour or the ways that people offer support if there is concern that they might be caught.
Daniel O'Malley: On the point about the new offences and the deterrent aspect on human traffickers and smuggling gangs, there are aspects of the Illegal Migration Act that have not been repealed that apply to human trafficking. For example, a provision about disqualification from human trafficking protection in section 29 of the IMA has been kept. We would like to see that removed because an individual who has been in a nail bar and might have been human trafficked, as tends to be the case, might not come to any services due to fear of being disqualified from human trafficking protection because they may have engaged in criminal activity. If you have been human trafficked, you are likely to have engaged in criminal activity by virtue of that. That is the problem with the aspects of the Illegal Migration and Nationality and Borders Acts that have been left in.
The Nationality and Borders Act still contains section 60, which raised the threshold for referral to the national referral mechanism. Someone from a legal organisation in Scotland said that before the Nationality and Borders Act—he had been a lawyer for a couple of years by then—he had done one judicial review on the national referral mechanism. Since the Nationality and Borders and Illegal Migration Acts, he has done more than 50 judicial reviews. That keeps in the Act a freezing factor. Gangs and human traffickers can scare people who have been human trafficked by saying, “You might not get this protection because these offences could be applied or your protection could be taken away.” That is the aspect we would like to see removed to make sure that any offences are not disproportionately affecting victims of human trafficking.
The Chair
The next question will be the last. Witnesses, if there is anything that you have not yet said but would like to say, please do so.
Tom Hayes (Bournemouth East) (Lab)
Q
Enver Solomon: The system meltdown that came about because of the fantastical Rwanda policy and the full provisions of the Illegal Migration Act left people in a state of permanent limbo, in inappropriate accommodation, in very vulnerable situations, in communities where there were high tensions. As a consequence of that, people’s wellbeing was potentially compromised. There is no question about that. We saw that through our work. We saw the rise in stress and in suicidal ideation. There was very clear evidence from our practice about the impact of what was, as we described, a system meltdown.
On your point about enforcement, enforcement has a role to play but it has to be one strategy combined with others—one side of a multi-pronged approach. Similarly to the evidence from dismantling drug trafficking, often when you dismantle one set of smugglers or gangmasters, others will reappear and take over that part of the trade. It is very difficult to enforce and prosecute your way out of this challenge. Multiple strategies have to be adopted—
The Chair
Order. Sorry to interrupt, but we are in our last minute. Mubeen and Daniel, would you like to come in quickly?
Mubeen Bhutta: Thank you—my hearing aid has magically started working.
On disrupting the business model, going back to what we said at the beginning about this being the other half of the safe routes story, clause 34 is about taking biometrics and introduces flexibility so that biometrics can be taken outside visa centres. We would like to see that extended to people required to submit their biometrics for family reunion visas, because we know that people are making dangerous journeys to visa centres. Often there are multiple journeys, often in conflicts, and people often have to use smugglers to get across the border if the visa centre in their country is closed. There is a real opportunity to strengthen that existing safe route by extending the flexibility in clause 34.
The Chair
That brings us to the end of the time allocated. On behalf of the Committee, I thank our witnesses for their evidence.
Examination of Witnesses
Zoe Bantleman and Dr Peter Walsh gave evidence.
The Chair
We will now hear oral evidence from the Immigration Law Practitioners Association and from Migration Observatory. Again, we must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 12.40 pm. Could the witnesses please briefly introduce themselves for the record?
Zoe Bantleman: Good afternoon. I am Zoe Bantleman and I am the legal director of the Immigration Law Practitioners Association.
Dr Peter Walsh: Good afternoon. I am a senior researcher at the Migration Observatory at the University of Oxford.
Matt Vickers
Q
Dr Peter Walsh: Evidence from academic research shows that the impacts of deterrence policies are fairly small. The main reason for that is that migrants often do not have accurate or detailed knowledge of policies in destination countries. Their understanding of those policies is often lacking in detail and wrong, and it is often influenced by what they are told by their smugglers or handlers, who have a vested interest, of course, in downplaying risks.
There is also some statistical evidence that looks more broadly at what drives unauthorised migration and asylum applications around the world. That has found that domestic policy is not statistically one of the more important factors. Instead, geopolitical developments, conflict—civil, ethnic or international conflict—ecological disaster and regime change are all statistically much stronger drivers of unauthorised migration and asylum applications in particular countries.
Finally, rounding out the picture, when an asylum seeker decides which destination country to move to, that calculus is influenced not just by policy—policy is one of the things that they take least account of—but by things like the presence of family members, members of the community, friends, language and in some cases, in the context of small boat arrivals, escaping the Dublin system. Individuals may have claimed asylum in other EU countries—maybe those claims are outstanding or have been refused—and they understand that if they move to the UK they cannot be returned to the EU, because we are no longer a part of the EU and of the Dublin system that facilitated that.
Dame Angela Eagle
Q
Dr Peter Walsh: Because under the IMA the Government proposed not to process people’s claims, they would not have known whether returning those individuals to countries of origin would be safe or not. That is where Rwanda came in.
There were always questions about the deterrent effect of the Rwanda policy. For my part, whatever deterrent effect it would have had would have depended fundamentally on how many people were actually sent to Rwanda. You can imagine that if it was a large share of people arriving by small boat, that might make people think twice, but if it were a small share—only thousands a year when we have tens of thousands of small boat arrivals—that would imply that the chance of being sent to Rwanda was fairly small. You can imagine that the people then making the trip would view that risk as just one risk among many much greater risks—risking their lives, for example—so there were always real questions about the deterrent effect of the Rwanda policy and how many people would in fact have been sent there.
The last Government said that the scheme was uncapped, and the Rwandan Government said, “We can take as many people as you can send.” But there were logistical challenges there, not least among them where people would be detained. At that time we had about 1,800 people in immigration detention in the UK, with a capacity of 2,200. You would have to detain people if you were threatening to remove them to Rwanda, so that was a very big initial stumbling block, putting aside whatever the capacity of those Rwandan facilities would have been, and more broadly the capacity of the Rwandan asylum system to process large numbers of claims. Typically it processed only a few hundred a year, not 10,000 or 20,000, so there were real questions there.
The big risk was what to do with people who are neither deterred from arriving nor able to be removed to Rwanda. That would be a sub-population in the UK without legal status who would be here indefinitely, so they would for ever have no legal right to remain in the UK, but we would be required to provide them with asylum accommodation and support at great cost. That was the risk when it came to Rwanda and the IMA.
Dame Angela Eagle
Q
Dr Peter Walsh: I was not surprised, because I think that was consistent with the attitude at the time on the part of the Government. I did note that they did decide not to pursue a similar kind of agreement, which hampered them in a certain sense because there was no longer a mechanism to return asylum seekers arriving by small boat to the EU. It is true that in the last five years or so that we were a part of Dublin, we were actually a net receiver of asylum seekers under the system: we received more than we sent out. That is for various reasons, including administrative ones. But yes, it was striking that a similar kind of agreement or remaining a part of the Dublin system was not pursued because that appeared to hamper the Government in that aim—namely, to remove people arriving without authorisation to the EU.
Dame Angela Eagle
Q
Zoe Bantleman: As the witnesses in the previous session have already said, those are not the only international legal agreements by which we are bound. The UK has voluntarily agreed to be bound by a great many international legal agreements, including in relation to the rights of children, the convention on action against trafficking and the conventions on the rights of stateless persons. There are a whole host in addition to the refugee convention and the European convention on human rights.
One of the hallmarks of the new Government has been this new-found commitment towards our international legal obligations, and also restoring the UK’s position as a leader in the international rules-based order, which all three of the previous Acts—the Safety of Rwanda Act, the Illegal Migration Act and the Nationality and Borders Act before it—eroded. I think it is fundamental to retain our commitment towards our international legal obligations. But there was also a case in the High Court in Belfast, brought by the Northern Ireland Human Rights Commission in relation to the Illegal Migration Act, that found that it was not only the convention on human rights that was breached by the Illegal Migration Act, but also the Windsor framework itself.
At a time when His Majesty’s Government are trying to reset the relationship with Europe, it seems a very strange thing to do—to try to back out of our human rights obligations. Again, the Good Friday agreement and the trade and co-operation agreement with the European Union are both based on our compliance with the European convention on human rights.
Mr Forster
Q
Zoe Bantleman: The offences are drafted in quite broad terms and the defences are quite narrow. There is a real concern, particularly on behalf of the legal professions, as to what would constitute a defence. For example, one of the defences is where a person was
“acting on behalf of an organisation which—
(i) aims to assist asylum-seekers, and
(ii) does not charge for its services.”
Would a legal aid firm charging the legal aid fund for services come within the scope of this defence? That is a real question.
We could also imagine the much more practical question of someone who is, for example, in Calais with their family member, and their family member wants to get on to a small boat and they are saying, “No, don’t get on to the small boat. Look here—this is what the weather is going to be today” and they show them on their phone what the weather is going to be. That could be useful to that person in helping them to prepare for their journey to the UK, and it would be the collection, recording and viewing of that information. It is not clear that such a person would have a defence if they were to reach the UK by a safe route, if a safe route was available to them. Even though that was done in France rather than the UK, they could potentially be prosecuted once here because of the extraterritorial scope of the offences, subject of course to prosecutorial discretion.
There is a very large scope to the offences and the defences are potentially not sufficient and holistic enough to account for all situations in which persons should not be prosecuted and should not be criminalised for their behaviour.
Chris Murray
Q
Dr Peter Walsh: The Dublin system provided a mechanism for asylum seekers to be transferred between EU member states and prioritised the idea that people should have their claim processed in the first state in which they arrived. There are other things that the decision can be based on—one might be having family members in the country; that could also be the basis for a transfer.
There is emerging evidence from when researchers have spoken with migrants in and around Calais. They ask them, “Why have you taken this dangerous journey to the UK?” They talk about family, the English language and perceptions of the UK as being safer. Often they have experienced harsh treatment at the hands of the French police. Increasingly, they specifically mention Dublin.
What we can infer from that is that these people have an outstanding or rejected claim—or claims, potentially in a number of EU member states, even though there are rules and processes to prevent that. They have exhausted what they view as the opportunity to receive a successful asylum claim in the EU. That leaves the UK. They understand that because the UK is no longer a part of Dublin, we are effectively not able to return them to the continent. That is fairly recent evidence we have found.
On the smuggling networks and how they work, one of the big challenges is that they operate transnationally, so they are beyond the jurisdiction of any single authority. That, by its very nature, makes enforcement more difficult because it requires quite close international co-operation, so the UK would be co-operating with agencies that operate under different legal frameworks, professional standards and norms and maybe even speak a different language. That challenge applies with particular force to the senior figures, who are often operating not only beyond the UK’s and EU’s jurisdictions but in countries where there is very limited international law enforcement co-operation with both the UK and the EU. I am thinking of countries such as Afghanistan, Syria and Iran.
More generally, the smuggling gangs have become more professionalised. They are very well resourced and are highly adaptable. There is a sense that law enforcement is constantly having to play catch-up. The gangs are decentralised, and there are quite small groups of, say, eight to 12 individuals, spread out across the continent, who are responsible for logistics—for example, storing equipment like motors and engines in Germany that are imported to Turkey from China and then transported in trucks to France. Those networks stretch out across the continent. That is why it is so hard for law enforcement to fight them.
Pete Wishart
Q
Unless we tackle the demand, surely there will not be anything we can effectively do to tackle the illegal gangs, particularly if we are going to be cutting international aid budgets, which will exacerbate the problem and drive more people into the hands of the gangs. Ms Bantleman, you have written to the Government urging them to amend the good character guidance to ensure compliance with the UK’s international obligations. Could you expand on that and elaborate on what you are intending from the Government? You are right to remind the Government of the range of their commitments and international obligations. I will come to you first, Dr Walsh.
Dr Peter Walsh: It is true that there is a real lack of evidence on what the likely impact of specific policies to disrupt smuggling networks will be, but the policies could assist in disrupting smuggling activities. If you invest more resources in enforcement and agencies have greater power of seizure, search, arrest and investigation, then you would expect that more smugglers would be brought to justice. The bigger question for me is: will that reduce people travelling in small boats? There is the separate question of whether this will eliminate the market for smuggling.
What we do know is that a lot of people are willing to pay a lot of money for the services that smugglers provide. If the effect of the policies is to disrupt smuggling operations, that could conceivably raise the cost of smuggling—a cost that would be passed on to migrants. It may be the case that some are priced out at the margins, but I suspect that demand is fairly inelastic. Even with an increase in price, people will still be willing to pay.
Another challenge is the people most directly involved in smuggling operations on the ground—the people who are tasked with getting the migrants to shore, the boats into the water and the migrants into the boats. It does not require substantial skill, training or investment to do that job. You can apprehend those individuals, and that requires substantial resource, but they can quickly be replaced. That is why it has been described as being like whack-a-mole. I think that is one of the real challenges.
Zoe Bantleman: I would like to add to that point, before I address the second question. I completely agree with what Peter says about how the most fundamental challenge in breaking the business model of smugglers is that, simply, smuggling will exist for as long as there is demand. There will be demand for it as long as there are people seeking safety. For as long as we fail to have accessible, safe, complementary routes for people to arrive here, and for as long as carriers are too fearful to allow people on to safe trains, ferries and planes to the UK, people will feel that they have no choice but to risk their lives, their savings and their families’ savings on dangerous journeys.
The focus of the Bill is not on tackling trafficking or the traffickers, or on protecting the victims of trafficking; it casts its net much wider. It is really about tackling those who assist others in arriving here, as well as those who arrive here themselves.
That leads me on to the second point, which is in relation to the good character guidance. There was a recent change, on the day of Second Reading, that also resulted in a change to the good character guidance, which is a statutory requirement that individuals must meet in order to become British citizens. The guidance says that anyone who enters irregularly—it actually uses the word “illegal”, which I have substituted with “irregularly”—shall “normally” not have their application for British citizenship accepted, no matter how much time has passed.
Fundamentally, article 31 of the refugee convention says that individuals should be immune from penalties. It is a protective clause. It is aimed at ensuring that exactly the kind of person who does not have the time or is not able to acquire the appropriate documentation, who has a very short-term stopover in another country on the way to the UK, and who is allowed to choose their country of safety can come here and is immune from penalties. There is also an obligation under the refugee convention to facilitate the naturalisation of refugees.
We also mentioned many other conventions, including the convention on the elimination of discrimination against women, and the convention on the rights of the child. Children have a right to obtain citizenship, so stateless children should not be barred from obtaining British citizenship. In addition, they should not be held accountable for things that were outside their control. Children placed on small boats may have had no control or understanding of their journey to the UK, so arriving here in a way outside their control, in a way that the Government consider to be illegal but is not illegal under international law, is not a reason for them to be barred from citizenship. That is the substance of what we have said.
The Chair
This may be the last question, unless anybody else has indicated that they wish to ask one.
Margaret Mullane (Dagenham and Rainham) (Lab)
In his evidence, Enver Solomon spoke about the “meltdown” of the immigration system—that it is chaotic. I think we all heard that. I am on the Home Affairs Committee, and we are also looking into that. Quite a few people from different groups have given evidence, and their evidence was slightly more optimistic than what has been said today.
We are all in mass communication, so I think word will get around when this starts rolling out. If the system had been chaotic and everything had ground to a halt, the gangmasters running the boats would have got to grips with it as time went on, and that would have seeped through. It therefore would not necessarily be the case that people would want to risk the boats and the gangs.
Dr Peter Walsh: On communication, many of these individuals who are travelling receive information from their handlers, agents and smugglers. Sometimes it comes from people who have already made the trip and are in the UK, but that has the effect of emboldening them. I am not sure what the prospects would be for them learning about the reality of the UK’s asylum system more broadly. We see that knowledge of the system—whether it is chaotic or functioning well—is always filtered through their agents, smugglers, handlers and those they know in the community who are making the trip or have already successfully made it.
Tom Hayes
Q
“The deterrent impact of the policy would likely have depended on the number of people sent to Rwanda.”
You estimated the probability of people crossing the channel in a small boat being sent to Rwanda to be about 1% to 2%.
You also said:
“There is no evidence that political discussions surrounding the Rwanda policy deterred small boat arrivals.”
In fact, from the day the policy was announced to the day it was scrapped, we saw 84,000 people cross the channel. Do you want to say anything about the efficacy of the so-called deterrent? Relatedly, do you agree that it is hard to make emphatic assessments of the fiscal burden of immigration owing to the quality of the available data?
Dr Peter Walsh: Yes, I would agree with that last point.
The Rwanda policy was never implemented, so it would be unfair to say that it did not have a deterrent effect. Policies of that kind typically have the bulk of their effect once they have been implemented. I cannot remember the source for the 1% to 2% figure. This is a somewhat old research paper, but at the time it was the best estimate we could point to. It was not an estimate that I or colleagues made. Can you see what the source is?
Tom Hayes
I can. It says:
“If only a few hundred asylum seekers were sent to Rwanda each year (as suggested by the Deputy Prime Minister and the Home Office’s modelling) and unauthorised arrivals had continued at rates similar to those seen in 2022 and 2023”—
the paper was published in 2024—
“then the probability of a person crossing the Channel in a small boat being sent to Rwanda would have been small—around 1-2%.”
Dr Peter Walsh: I now recall the Home Office’s modelling, and it was subject to a whole range of caveats. The Home Office was actually quite cautious about the estimates. That was the best available figure it had at the time. It was in part based on Rwanda’s capacity to process claims. The number could have gone up, but we never found out.
Kenneth Stevenson
Q
It has been very interesting to hear about what does not deter people from coming across, but it would also be very interesting to hear about anything that does deter them. Could you outline that too?
The Chair
There is less than a minute left, and I wonder whether Zoe wants to quickly come in too.
Dr Peter Walsh: Strong deterrents do not necessarily operate on a psychological level. They include the physical interception of boats in the water, and the case of Australia demonstrates that quite clearly. It had an offshore processing plan, but the huge decrease in numbers arriving by unauthorised boats happened once Australia was physically intercepting those boats in the water and returning them to the countries of departure.
Kenneth Stevenson
Can you answer my original question about the engagement you have had with the Government? You are saying that small gangs are very flexible, but obviously the Government are saying that they are going after those gangs—
The Chair
Order. That brings us to the end of the time allocated for the Committee to ask questions. I thank our witnesses on behalf of the Committee for their evidence.
Examination of Witness
Dame Rachel de Souza gave evidence.
The Chair
We will now hear oral evidence from the Children’s Commissioner for England. Once again, we must stick to the timings in the programme order. We have until 1 pm for this panel. Could the witness please introduce herself for the record?
Dame Rachel de Souza: Good afternoon. I am Rachel de Souza. I am the independent Children’s Commissioner for England. It is my job to protect and promote the rights of children. Since I took up the role, I have made working with illegal immigrant children who arrive in Kent one of my top priorities. I go down to the Kent intake unit. I talk to all the children who are in hotels. My independent advocacy body has supported hundreds of these young people. I have used my entry powers to go in and look at their situation, and I have used my data powers to track safeguarding issues. It has been really thoroughgoing work for the past four years.
Dame Angela Eagle
Q
Dame Rachel de Souza: I do not want to see any child crossing the channel in a small boat. I have sat in those small boats myself. I have talked to children who have come across on them. I have seen eight-year-olds, blind children and children with Down’s syndrome come across on them. The crossings are dangerous. One case that sticks in my mind is that of a young Iranian lad who saw his parents killed in front of him. He was taken by smugglers and did not know where he was going, but he came across on a small boat. Anything to stop these wicked traffickers is good in my book, as long as we are protecting and safeguarding children.
You will know that I was very vocal about the Illegal Migration Act, particularly the bits that conflicted with the Children Act 1989. When a child is on this soil, up to the age of 18, the Children Act has authority over them. I was very worried about the Home Office accommodating children, and I am pleased to see that has now been changed. Every Home Office official was working hard to do their best by those children, but the Home Office accommodation and the hotel accommodation were not suitable. Children were languishing without proper safeguarding in inappropriate places. Children’s social care must look after unaccompanied children, so I am pleased to see that change.
From a children’s perspective, I am pleased to see the Rwanda Act repealed. Children told me that it would not have stopped them coming; they were just going to disappear at 18. It would have ended up putting them at more risk. I had concerns about that. I also had concerns about children who had been settled here for a number of years then, at 18, being liable to be moved to Rwanda, so I am pleased to see that changed.
In general, I am really supportive of this Bill. There are some things that I would like to see it go further on, and I do have some concerns, but in general I am very supportive.
Mr Forster
Q
Dame Rachel de Souza: Because I see so many of these children and work with them directly, I am often thinking practically about what their lives are like and how to ensure that they are okay, so I tend to come at your questions from that approach. One of the things that I am worried about is the potential for getting the scientific age assessment wrong.
There was a fantastic debate in the other House, where Lord Winston and others talked about the British Dental Association and the lack of clarity and slight vagueness around age assessment procedures. What I will say is that the social work team down at the Kent intake unit are fantastic and they have developed a strong approach to and knowledge about how to get those age assessment decisions right, with an understanding of school systems and other things about young people. I think we need to be really careful on the age assessment side.
You know that I am also going to be worried about safe and legal routes. Let me give you two examples two young ambassadors out of my large group. One is from Ukraine. She came under the Ukraine scheme, managed to complete her Ukrainian education and her UK education at the same time, and is going to King’s College. She has had nothing but support. The other is from South Sudan and, with no safe and legal route, came as an illegal immigrant. Female genital mutilation was an issue; there were some really serious issues. She found it hard to find somewhere to live and hard to get a job. She is now at Oxford University, because we have supported her and she is brilliant. Those are just two completely contrasting cases.
I stood and welcomed off the boat the first child who came from Afghanistan, who spent his nights weeping because he did not know whether his parents were alive. There is that safe and legal routes issue, particularly for children we know are coming from war-torn areas—we know that they are coming. We really need to think about that and think about support for them. That perhaps answers your tone question as well.
Chris Murray
Q
Dame Rachel de Souza: Down in Kent, because needs must, hotels were set up, so I visited the hotels that children were in. The situation was wholly inappropriate. Many children were languishing there for months, without English teaching. Kent county council was doing its best. Some of the best provision that I saw for children who were just arriving was put on by Kent, which had managed to get school going and get interpreters in, but it was overwhelmed.
What I will say, to pay tribute to local authorities around the country, is that whenever there was a very young child or a disabled child, they would step up and help. But it was hard to get the national transfer scheme going and the children were confused by it as well. The Hghland council offered a range of places to some of the children, and they were like, “Where is the highlands and what are we going to do there?” It felt discombobulated at best. It was really tricky.
Of course, let us not forget that a lot of those children were older teenagers, and a lot of the provision that they were going to was not care, but a room in a house with all sorts of other people—teenagers and older people. They were left to fend for themselves, which was incredibly disorientating. We have a problem with 16 and 17-year-olds in the care system. There was a massive stretch on social care. Every director of children’s social care who I spoke to said that it is a massive stretch on their budgets, and that they do not know what to do with those children.
I think we could be more innovative. Again, there is massive good will out there in the country. We should be looking at specialist foster care, and not sticking 17-year-olds in rooms in houses on their own. There are so many things we could be doing to try to make this better, such as settling children in communities with proper language teaching.
The No.1 thing that children tell me that they want, given that they are here, is to learn—to be educated—so that they can function well. For me, particularly with some of the children who I have seen, they do not in any way mirror the stuff that we read in the media about freeloading—coming here for whatever. Most of them are really serious cases, and given that they are here, they want to try to learn and be good productive members of our communities. There is much that we can do.
Pete Wishart
Q
We are keeping parts of NABA, so that will be a feature of the Bill. There are concerns about modern slavery and the impact on children with that. Are there any amendments that we could bring to the Bill that would help to deal with that and meet some of those concerns, so that we can get to a much better place with how we deal with children in our asylum system?
Dame Rachel de Souza: Obviously, both of those issues are concerns of mine—age assessment and the modern slavery provisions not being allowed to be applied. On age assessment, it is important that we know how old children are. I have seen 14-year-olds in hostels with 25-year-olds, which is totally inappropriate. I have seen girls who say that they are not 18 be age assessed as 18 and put in adult institutions with adult men. We do not want people masquerading as children to be put in with younger children. We need to do everything we can to determine age.
The technology around scientific age assessment is going to be difficult, not least because when you are dealing with an international population—as Lord Winston talked about—it is really difficult to be precise. Being precise matters. When children arrive in Kent, they get their new clothes, then if they are sick, they are put into a shipping container until they are not sick any more. They maybe then have to sleep a bit on a bench, and then they are age assessed. That age assessment is the most important thing about the rest of their journey here. If that goes wrong, that is it; if you get that wrong, they are an adult. It is a really important and tricky thing, and it is often not supported.
There are things we can do—I always look for solutions. Maybe we ought to be saying, “This is obviously a child. This is obviously an adult.” But there is a group where there are questions and perhaps we should be thinking about housing people in that group and spending a bit more time to work out how old they are and try to get the evidence, rather than making these cut-and-dry decisions that will change people’s lives. As I said, I found a 14-year-old boy in Luton who was there for years with 25-year-olds and was really upset.
On the modern slavery provisions, all I would say—I hope this is helpful—is that I have seen with my own eyes a 16-year-old Eritrean girl arriving at Kent with an older man who was her boyfriend. She obviously said, “It’s fine—I’m 16. We can come in.” She had lost her parents. It was obviously going to be trafficking. We need parts of the Bill to pick that up. That is real, so we need to be really careful about these things.
Jo White
Q
Dame Rachel de Souza: That is the first question I asked the National Crime Agency when I came into the role. I asked, “Could you find every child in this country?” I was told that, “With enough resource, we could pretty much do it, apart from some of the Vietnamese children who are trafficked into cannabis factories and things like that.” With resource, and with this new Border Security Command, we will get a lot nearer, and we need to do that.
Tom Hayes
Q
Dame Rachel de Souza: The Home Office was the only Department that failed to answer my data request in time and that gave me imperfect data, but I did not stop and I kept going. I have to say: it is much better now. I was able to speak to and did have access to Ministers, and I was always able to make my case. I did not get that information in a timely manner, but I did get that information in the end. I am worried about what has happened to those children.
The data we were after was safeguarding data that showed all the concerns, and the reason I asked for it was because I knew that the safeguarding in the hotels was not as it should be. We got the data on children who had been victims of attempted organ harvesting, rape and various other things, as well as the number of children who were missing. We still do not know where many of those children are, and that is not good enough. The whole tone has changed, and I hope that the Government will still want to stop the small boats, while also being much more pro-children.
Becky Gittins (Clwyd East) (Lab)
Q
Dame Rachel de Souza: Absolutely. The number of tales and stories from children about how virtually the entire rest of the hotel had been picked up and driven off by gangs was really not good. They would just walk outside and be picked up, and they would go. Some of those children made their way back to Kent because they were being exploited so badly. It was really terrible. There were not proper safeguards.
One of the reasons I do not want the Home Office to accommodate children is that, while it is great at many things, it should have nothing to do with children. Children’s social care should be looking after children. The Home Office was never able to put in appropriate safeguarding. Despite its best efforts, it did not manage to structure children’s days. It did not have the personnel to deal with this.
Children were going missing regularly; some are still missing. Kids were there for months who were not learning English. What were they doing? Whereas, when they went straight into Kent’s care, they were put in school, learning English, learning what it is like to be in England, learning to understand their rights and getting used to the country they were in, but I fear that many of those children came to terrible ends—
The Chair
Order. I am afraid that brings us to the end of the time allocated and allotted for the Committee to ask questions. I thank the witness for her evidence.
Border Security, Asylum and Immigration Bill (Second sitting)
Thursday 27th February 2025
(1 day, 18 hours ago)
Public Bill CommitteesBorder Security, Asylum and Immigration Bill 2024-26 View all Border Security, Asylum and Immigration Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 February 2025 - (27 Feb 2025)
The Chair
Before we hear from our witnesses, do any Members wish to make a declaration of interests in connection with the Bill? No. In that case, we will now hear oral evidence from the National Police Chiefs’ Council, the National Crime Agency and the Crown Prosecution Service.
Examination of Witnesses
Assistant Chief Constable Jim Pearce, Sarah Dineley and Rob Jones gave evidence.
The Chair
We have until 2.40 pm for this panel. Will the witnesses please introduce themselves briefly for the record?
Rob Jones: I am Rob Jones, the director general of operations for the National Crime Agency.
Sarah Dineley: My name is Sarah Dineley, and I am head of international at the Crown Prosecution Service and the national CPS lead on organised immigration crime.
Jim Pearce: Good afternoon. I am Assistant Chief Constable Jim Pearce, the National Police Chiefs’ Council lead on organised immigration crime.
Matt Vickers (Stockton West) (Con)
Q
Rob Jones: There is not one thing that you can do to tackle these problems; you need a range of measures that concurrently bear down on them. The problem that I focus on is the organised crime element, which needs concurrent effort in a number of areas, designed to undermine the business model that supports organised immigration crime. That means tackling illicit finance; the materials that are used in smuggling attempts and the supply chain that supports them; the high-value targets based overseas who are involved in supplying materials and moving migrants; and those who are closer, in near-Europe, who are involved in it. From an organised crime perspective, it is about concurrent pressure in a number of areas to make the incentives for being involved in organised immigration crime no longer viable.
Jim Pearce: From my perspective, you need to look at this at both ends of the scale. What we are probably thinking about at the moment is prosecution and putting people through the courts. Actually, we know that, in other thematic serious and organised crime, prevention and early intervention work just as effectively. We would call that disruption. Disrupting the patterns, and the ways of working that Rob just described, earlier would obviously prevent victims from becoming victims in the end. It is the 4P approach, which I am sure most of you have heard of. It is about working from neighbourhood policing, with a local factor, in order to gather intelligence, and putting that into the system all the way up through our regional crime units and into the National Crime Agency and high-end prosecution, international and online.
Sarah Dineley: I concur with my two colleagues. I do not believe that there is one single measure that would impact so significantly that it would reduce migrant crossings to zero. It is about having a suite of measures—whether they are prosecutorial or disruptive in nature—that taken together will allow the prosecution and law enforcement teams to work together to tackle the gangs. It is always important to remember that a criminal justice outcome is not necessarily the right outcome; there are other outcomes that can tackle organised immigration crime and gangs effectively.
Matt Vickers
Q
Sarah Dineley: From a prosecution point of view, I would say it is a matter for the legislators to decide what legislation they feel is appropriate. The Bill as drafted does add to the toolkit of measures we have available.
Rob Jones: From my perspective, the measures that make the most difference and are the most significant in tackling the organised crime element are on preparatory acts, in clauses 13 to 16. They give us the ability to be pre-emptive, proactive and very disruptive, giving us something we have not had before—the ability to act before people actually commit an offence under section 25 of the Immigration Act 1971, which is the facilitation offence. That is an important opportunity, because we are driven by trying to reduce the highest-risk crossings and trying to prevent crossings. We would not choose to react to crossings and then investigate; we want to act as quickly as we can. These measures create the ability to do that—to go much sooner, have more impact, and build momentum, so that the people who are behind these attempts really start to feel the pressure.
Jim Pearce: In addition, the Bill provides the opportunity to increase clarity and focus, with the ability to gain information and intelligence through the seizure of electronic devices, for example. I know this is controversial. Being able to do that with a very clear power to search, seize and then download, as opposed to potentially—I am not saying this has happened—misusing existing powers, will give clarity because you can say to an operational police officer, immigration officer, or a member of the National Crime Agency, “This is what you use in order to get that defined intelligence at the end.”
Matt Vickers
Q
Jim Pearce: From a policing point of view, there would be insurance around safeguarding. For the electronic devices, for example, I understand the benefits that would come from the counter-terrorism-style powers to be able to seize electronic devices. I am confident that that is managed through the measures in place around reasonable suspicion and having to get the advice from a senior officer. It is about operationalising that, putting it into practice, and making sure that our staff understand through education and training. Any change in legislation requires training, finance and input. Those are the types of things that I would be thinking about.
Rob Jones: I agree. It is about the professional development and the guidance for officers who are using new tactics and new tools against this threat, and making sure that we are ready to go with very clear guidance on how officers should look to engage the new offences in the Bill.
Sarah Dineley: Clause 17 and one of the subsections of clause 18 create extraterritorial jurisdiction for the offences, and it would be remiss of me not to highlight some of the challenges that that will bring. We have a system of judicial co-operation, something called mutual legal assistance, whereby we can obtain intelligence and evidence from our overseas counterparts at both judicial and law enforcement level. We work very hard on building those relationships to collaborate.
To that end, the Crown Prosecution Service has a network of liaison prosecutors based across the world. Specifically, we have liaison prosecutors based in the major organised immigration crime countries—Spain, Italy, Turkey, Germany, Netherlands and Belgium—and two in France, one of whom is actually a dedicated organised immigration crime liaison prosecutor. We use them to foster and build those relationships so that we have that reciprocal exchange of information where required. That is not to say that is without its challenges. I flag that as something that we will continue to work on, but it has challenges.
The Minister for Border Security and Asylum (Dame Angela Eagle)
Q
Rob Jones: It gives us the opportunity to make the most of the intelligence dividend that we have invested in tackling the threat. We have a good understanding of the people behind small boats crossings in particular, the supply of materials, the facilitation from near-Europe and further afield, but we want momentum and greater agility so that when we are aware that a crossing is being prepared—when materials are moving—we can act pre-emptively and proactively.
As I said earlier, we do not want to be investigating after thousands of people have arrived, and trying to put together very complex investigations that may involve months of covert surveillance and eavesdropping—a whole range of covert tactics—to get us over the line for a charging decision for a section 25 offence. The new offences give us the opportunity to act when we see that jigsaw puzzle coming together, to go to the CPS when we reach a tipping point and to go earlier than we can now. That means that we can pull more people through that system, deliver justice more quickly and be more disruptive in tackling the threat. That is a big step forward. That is lacking in the current toolbox to operationalise the intelligence we have.
Sarah Dineley: The endangerment offence potentially fills a gap between the current section 24 and 25 provisions. Each boat has a pilot—someone steering it across the channel—who, by the very nature and condition of those boats, the overcrowding, the lack of lifesaving equipment, and so on, puts everyone in that boat in danger of losing their life. We welcome that clause and will draft guidance on how it can be interpreted in terms of practical application.
Jim Pearce: Police officers mainly deal with the inland clandestine events as opposed to the small boats. From my point of view, it would be, correctly, common practice to use schedule 2(17) of the Immigration Act 1971 to detain migrants and then pass them into the immigration system. On searches after that, yes, there are powers in the Police and Criminal Evidence Act 1984 after that provision under section 32, but that is mainly to safeguard; it is not to seize evidence.
On Rob’s point about early intervention and intelligence gathering, the only way you gather intelligence is through what people tell you and what electronic devices give up. The Bill gives police officers the ability to gather intelligence through defined and clear powers in legislation, so that they are not misusing a PACE power, an operational procedure or anything else. That would be the biggest change for policing.
Dame Angela Eagle
Q
Rob Jones: You could say that about all serious organised crime. Where do you go from there? I do not agree with that view. It is definitely transnational and complicated, but it is a relatively new serious organised crime threat, and it is not too late to stop it. In 2018, there were a few hundred people coming on small boats. There were 36,000 last year. We need to unravel the conditions that have allowed that to happen, and this legislation will help with that. I do not take the view that you cannot stop it.
There will always be people attempting organised immigration crime, but this element of it—small boats—is relatively new. There are very specific things that organised crime groups involved in it need to do. They need access to very specific materials—otherwise they cannot move the numbers that they attempt to move—and they need to be able to operate using materials that are lawfully obtained, albeit for criminal purposes. This attacks that business model because we can pursue the dual-use materials with more vigour and have more impact. It is challenging, and it is a different challenge from drugs and other threats, but it is there to be dealt with. It is a very public manifestation of the OIC threat that has always been there. This part of it relies on a very specific business model that we can attack.
Sarah Dineley: The follow-on point from that, and one that you raised, is that people are making a lot of money out of this, so the illicit finance piece is really important. These new clauses actually give us more on which to hang illicit finance investigations. There is a lot of work going on in the illicit finance sphere; in particular, and most recent, the illicit finance taskforce between the UK and Italy, was set up specifically to look at the profits being made by the people who are preying on other people’s misery.
Jim Pearce: It has been said already but I want to reinforce the point about organised crime gangs being involved in polycriminality. Organised immigration crime is one part, but so are modern slavery, serious acquisitive crime and drug running. That is felt in local communities across the whole country. In my own force area of Devon and Cornwall, you would think that modern slavery and organised immigration crime do not exist, but we have a number of investigations and intelligence leads being developed; they are being looked at by both our regional crime units and members of Rob’s team. This exists everywhere across the country. As I say, if you are prepared to effectively smuggle people into the country, or at least to facilitate that, you are prepared to get involved in very serious things indeed.
Mr Will Forster (Woking) (LD)
Q
Sarah Dineley: I will deal with the second point first, as it is probably the easiest and it flows into the first. In relation to clauses 13 to 16, with any new legislation, the Crown Prosecution Service always publishes guidance on how it is to be interpreted. Certainly, the example that you gave about asking what the weather is like in Dover when you are stood in Calais would not fall within the guidance as meeting the evidential test. Of course, it is not just about an evidential test being met, but a public interest test as well. Our guidance always deals with that specific question of whether it is in the public interest, so that prosecutors can do that balancing exercise and ask, “Are there factors that weigh in favour of prosecution? Are there factors that tend away from prosecution?” They want to come to a decision that is compliant with our code for Crown prosecutors, so it is a mixture of guidance and application of the code that hopefully gets us to the right conclusion.
Going back to your first point, I mentioned that we have mutual legal assistance and that we can issue what are called international letters of request. They require the recipient country to execute the action, or to provide the information that we have asked for. One of the problems is that there has to be something called dual criminality—there has to be the equivalent offence in the country that we are making the request to, and there are some gaps across Europe in establishing dual criminality for all the immigration offences that we currently have on our books. However, we are confident that there are reciprocal laws in the major OIC countries in Europe to allow us to make those requests for information under mutual legal assistance. We are aided by the network of prosecutors based abroad, which I mentioned. We also have Eurojust and the joint investigation teams run out of Eurojust. We are well versed in working internationally and with the measures that we can deploy to make sure that we build a strong evidential case.
Mike Tapp (Dover and Deal) (Lab)
Q
We have talked a lot about the upstream side, which publicly people are well aware of. Is there a significant domestic angle here? Are we confident that we have a sound intelligence picture—as much as we can? Are there crossovers with other crime? Does the Bill help us to disrupt and arrest people in this country?
Rob Jones: I will come back on that first. There is a footprint in the UK for organised immigration crime. The footprint for the small boats crossings has typically been driven by Belgium, Germany, Turkey and further afield, with Iraqi Kurdish and Afghan groups. As more and more people have successfully exploited that route, however, they put down ties, they get involved in criminality and they know it has worked for them, so that drives the problem. There are organised crime groups in the UK that we are targeting. Some of our most significant cases to date have involved a footprint in the UK.
When we look at those groups and what it took to bring them to justice, we have either had to extradite them to another country following a judicial investigation, or we have done very complex covert investigations for many months. This helps with that issue, because when we have got good evidence from covert tactics—this was my earlier point—we are able to go earlier with it. The majority of the criminality that drives the small boats element, however, is based overseas. We have a good intelligence picture through OIC, which has improved dramatically since 2015 when we started targeting this, when the crisis first started.
Jim Pearce: I have a follow-on from policing. I probably have two points to make. First, tomorrow you will start hearing national media on interventions across the country, which are termed Operation or Op Mille—police interventions to do with cannabis farms. A lot of the intelligence linked to that particular operation involves workers who have been brought in illegally from abroad, and all those disruptions will be from across the whole country. That might just bring this to life.
The second point I want to make is on legislation changes, which you just asked about. The two changes—well, there are more than two, but the ones I particularly want to focus on—relate to serious crime prevention orders and the ability of law enforcement, which is the police, the NCA and of course the CPS, to apply for interim orders, especially those on acquittal. Serious crime prevention orders are probably a tool that is underused at the moment. We are keen to push into that space moving forward.
Sarah Dineley: To put that into context, at the moment there are effectively two types of serious crime prevention order: one is imposed on conviction, and between 2011 and 2022, we had 1,057; the other is what we call the stand-alone serious crime prevention orders. Those are made before any charges are brought and they are heard in the High Court. To date, there have only been two applications, one of which was successful. The introduction of this new serious crime prevention order does fill a massive gap in that restrictive order.
Rob Jones: I agree with that, and I welcome those measures. There is a similar regime for sexual offences, which allows control measures for people who are suspected of offences. That has been very successful. We welcome that.
Pete Wishart (Perth and Kinross-shire) (SNP)
Q
Mr Jones, I am struck by your confidence that you are going to end this. I think you made a comparison with illegal drugs. You are probably right to make that comparison—they are both demand-led and operated by illegal gangs—but we have not been particularly successful with illegal drugs over the course of the past decade.
Lastly, Ms Dineley, you said something about pilots of the boats. I hope your intelligence is telling you exactly the people who are piloting the boats. It is not the gang members or people associated with this crime. It is ordinary asylum seekers who cannot afford the fare or are forced into piloting these boats. I hope that when approaching the new powers in the clauses you will be proportionate, you will know what is going on and will not endlessly prosecute innocent people who are just asylum seekers fleeing oppression and warfare.
Rob Jones: We are not looking to pursue asylum seekers who are not involved in serious and organised crime. That is not what we do. This is about tackling serious and organised crime and being as effective as we can be in doing that. There are examples of people involved in piloting boats who are connected to the organised crime groups.
Pete Wishart
Q
Rob Jones: People have been convicted of those offences, so that has passed an evidential test. Our role is undermining a specific element of the business model. It is not like drugs trafficking. Drugs trafficking has been established since the Misuse of Drugs Act 1971. It is a lot older, a lot more established and involves billions of pounds and tens of thousands of people internationally, if not more. The small boats threat is different from that. It is the highest harm manifestation of organised immigration crime. I have not said that I will stop organised immigration crime. I said that we will tackle the small boats business model and then continue to tackle the OIC threat, as we have been doing since 2015.
Sarah Dineley: In relation to asylum seekers piloting boats, under the Immigration Act 1971 we have two offences: sections 24 and 25—section 25 being the facilitating offence. Our guidance is very clear on when we charge the section 25 facilitation offence. It is very clear from our guidance that it is not just about having a hand on the tiller; it is about being part of a management chain and being part of the organisation of that crossing.
You mentioned people who are coerced into taking the tiller. We would look under section 24—arriving illegally—on whether an offence of duress would be sustained. That would form part of our considerations on whether evidentially it is made out and, secondly, whether it is in the public interest to prosecute that person. We do look at the whole set of circumstances, and our guidance sets out in very clear terms what is required, both in terms of the evidential test and the public interest test—that balancing exercise. We also have specific guidance in relation to how we treat refugees and asylum seekers. Again, that plays into the charging decision equation, as I will put it, and the balancing exercise.
Jim Pearce: I am not sure what I could add to my colleagues’ comments.
Pete Wishart
Q
Jim Pearce: I am not sure I am going to be able to answer that question, but I can tell you that for 12 months since November 2023 the police were involved with just under 2,000 inland clandestine incidents. What I mean by that are, for example, relevant persons who have been found in the back of an HGV who walk into police stations declaring asylum or those who have been left at petrol stations and are then picked up by police patrols and brought in. There were 2,000 incidents and nearly 3,000 persons. Obviously, they are not all being arrested for organised immigration crime offences, because they have not necessarily committed them, and my colleague here has spoken about the aggravating factors that sit within section 24, which are the key points to prove. As I say, that is probably all I could offer you at this time.
Sarah Dineley: Perhaps I could put things into some sort of numerical context. Last year, we had 37,000 arrivals in the UK through small boats crossings alone, and, in the period from April to September last year, there were only 250 prosecutions.
Pete Wishart
And were they gang members?
Sarah Dineley: I cannot break that down, but that would include gang members. That is the total number of prosecutions.
Kenneth Stevenson (Airdrie and Shotts) (Lab)
Q
Rob Jones: In relation to the powers in clauses 13 to 16?
Kenneth Stevenson
Yes. I apologise—I think I have cut across the Minister, because she asked a very similar question, but, if you could give us an idea of how those three things that you spoke about before could be helped by the Bill, that would be really helpful.
Rob Jones: When we identify somebody from the UK who is involved in organising small boats crossings, for instance, we have to get very good, sophisticated surveillance control over that individual to get enough evidence to be able to produce a full file submission to the CPS for a section 25 facilitation offence. That could mean months of surveillance, or covert activity, in terms of eavesdropping and audio recordings.
In the meantime, we are seeing that individual with a public profile on social media, researching crossings, communicating with people overtly and meeting people. When you are looking at the commissioning of the offence, and you are living with somebody who is involved in serious organised crime, you are seeing that play out in front of you.
These clauses allow us to take elements of their business model—as they are meeting people, as they are researching, and as they are taking the preparatory steps to the section 25 offence—then go to the CPS and say, “We think we’ve got enough; we think we could go now.” That gives you more momentum, more speed and more agility.
It is the same mindset as trying to prevent attacks in the CT world. You would not choose to reactively investigate a terrorist attack; we would not choose to reactively investigate highly dangerous crossings in the English channel during which people get killed. We would choose to pre-emptively stop them, and that is what the new offences would introduce.
Tom Hayes (Bournemouth East) (Lab)
Q
Then, just picking up on your point, Mr Jones, about criminal gangs starting to feel the pressure because of this new suite of tools, would you say that the tools provided for in this Bill, which will have a disruptive effect, could in consequence also have a deterrent effect on the criminal smuggler gangs?
Rob Jones: I will take the second question first. Obviously time will tell but, adding to what we are doing already, these tools will rack up the pressure, and that starts to change behaviour. It increases costs and increases friction in the business model. Those things contribute to deterring people from getting involved, and we see that with other areas of criminality. I will allow others to answer the asylum question.
Sarah Dineley: I am going to dip out, rather, and say that it is not really a matter for the Crown Prosecution Service, but I can tell you that the Home Office is undertaking a piece of work looking at what the pull factors are for migrants wanting to reach the UK, and at what point they reach the firm decision that the UK is their final destination.
Tom Hayes
Q
Sarah Dineley: There is nothing that I have read in any interview provided by a migrant to suggest that that is a pull factor.
Jim Pearce: I have a personal view, but I am speaking on behalf of the national police chiefs, and I am not sure that I am in a position to do that. That is probably a question for either Immigration Enforcement or the Home Office.
Chris Murray (Edinburgh East and Musselburgh) (Lab)
Q
My second question is for Sarah. I should probably declare an interest because I was previously the home affairs attaché at the embassy in Paris. You talked about international co-operation and mentioned things like JITs and Eurojust and the challenges we face there. We heard from a previous witness about how the UK no longer being in Dublin is being cited by migrants as one of the reasons that they are going in. Can you say more about the challenges that the UK is facing post Brexit? How do we build relations with key allies to overcome them?
Sarah Dineley: I will start with how we rebuild relations with key allies. I have talked about our network of liaison prosecutors. We regularly engage and hold engagement events with our overseas prosecutors: this year alone, we have had engagement events in Ireland, Spain and, two weeks ago, Italy. That is about building those relationships and finding out what their challenges are, as well as finding out about their legal systems and what barriers there are to the co-operation that we are seeking. I think we do have to recognise that different countries have a different legal framework, and we cannot simply impose our framework on another country; we have to be able to work around their framework to try to get what we need from them.
The Chair
I want to get Mike Tapp’s question in quickly so that you can summarise. We have got just two minutes left.
Mike Tapp
Q
Rob Jones: For me, I have worked really closely with Martin Hewitt already, and it works well. It allows me to focus on the operational leadership of tackling the organised crime threat and Martin to have the convening power and to work across Whitehall on a range of issues. It provides clarity, and we have more than enough to get on with in the NCA in tackling the organised crime element.
Jim Pearce: I sit on Martin’s board, so strategically I am heavily involved, and members of my team sit within the operational delivery groups. Speaking from a personal point of view, his strategic plans over the next few years make absolute sense in terms of what he is seeking to achieve for the Border Security Command. Exactly as Rob just said, it feels as though the co-ordination is there and it is driving a system response across law enforcement and more widely.
Sarah Dineley: Although we contribute to the Border Security Command, as an independent prosecuting authority we cannot be tasked or directed. However, we do value the collaborative work that we can do within that sphere.
The Chair
That brings us to the end of the time allocated for the Committee to ask questions. On behalf of the Committee, I thank the witnesses for your evidence and for your service.
Examination of Witnesses
Tony Smith, Alp Mehmet and Karl Williams gave evidence.
The Chair
We will now hear oral evidence from the former director general of UK Border Force, from Migration Watch UK and from the Centre for Policy Studies. We have until 3.20 pm for this panel. Could witnesses please briefly introduce themselves for the record?
Karl Williams: I am Karl Williams, the research director at the Centre for Policy Studies. I have written several reports on legal and illegal migration.
Tony Smith: Hello, my name is Tony Smith. I spent 40 years in the Home Office, between 1972 and 2013, from immigration officer right the way up to director general of UK Border Force.
Alp Mehmet: I am Alp Mehmet, chairman of Migration Watch. I am also a former diplomat and a former immigration officer.
Matt Vickers
Q
Alp Mehmet: May I just make a few remarks? Would that be acceptable?
The Chair
We have a limited amount of time, so if you could answer the question, that would be great.
Alp Mehmet: I welcome the Bill in many respects. It is the sort of thing that needed to be done, and it is now happening. I welcome the co-ordination taking place across Government, and the potential co-operation with the EU and EU member states is also to be welcomed. The setting up of Border Security Command and the Border Security Commander will be helpful. My only gripe is that I strongly disagree with the repeal of the Safety of Rwanda (Asylum and Immigration) Act 2024—I think that is a mistake. I also think that repealing certain parts of the Illegal Migration Act 2023 is a mistake. That is my personal view, and I am happy to explain why in a moment.
I wonder whether primary legislation was necessary to do a lot of what is happening, but we are where we are. If anything, I think repealing the Rwanda Act will encourage illegal immigration, or whatever we may call it, to some degree, which is unfortunate. A lot of people entering the EU—240,000 were declared to have entered illegally last year—will end up coming to us. There is no deterrence because, once they arrive here, the likelihood is that they will be able to stay. I believe the only deterrent is to restrict arrivals, and to contain and remove quickly. That will send the right message. I do not think anything in the Bill suggests that is going to happen. That is broadly my view.
Tony Smith: Looking at the relevant clauses, the first thing that struck me is that the Border Security Commander will be another civil servant. I think it will be a director general post in the Home Office. I was a director general, and we already have quite a lot of them. I am not sure he will actually be able to command anything. He is probably going to be more of a co-ordinator.
I would like to see the Border Security Commander and his team have law enforcement powers so that they can arrest and detain, the same as officers in Border Force, the National Crime Agency and Immigration Enforcement. I think that whole governance structure needs attention. It needs someone to pull it all together. I am not sure we have pitched the post right in immigration law enforcement teams.
On the Border Security Commander’s reporting requirements under the Bill, I think he regularly needs to publish details of irregular arrivals by way of nationality and age, and provide regular updates on where they are in the process, so we can all see whether there are logjams in the process from arrival to either removal or grant. We can check the timelines. I think they already have a dashboard in the Home Office that does that, so I presume he will be able to take responsibility for that.
I would also like to follow up on the point that Alp Mehmet made about data on removals and the numbers of people who can currently be excluded under NABA because they have come from a safe third country. That is still there, but we do not know the data on how many of them are actually being removed on a case-by-case, so I would like to see a list of all the countries to which we can remove people: safe first countries, source countries and third countries.
We know the EU will not take third-country returns. In fact, other than Rwanda, I do not think there are any countries that will take third-country returns. There are countries that will take back their own nationals, but under this new system where we are doing away with SORA and most of the IMA, there does not seem to be a third-country outlet. Therefore, people who come here from Iran, Iraq, Syria or Afghanistan know that, from the other side of the channel, they need only get into British territorial waters and they will probably be allowed to stay in the UK. They might well get asylum, but even if they do not, it is impossible to return them for one reason or another.
I am really interested in that returns piece. I am keen on capturing data from mobile devices. Some of them keep their mobile phones. That data is being used for prosecution purposes only. I think it should be made available to officials who are considering their asylum claim. Passport data, identity data, age data and travel history data are often held on those phones—all data that would be useful when considering an asylum application. We need legislation to do that.
I would also use mobile devices to track people who are given bail so that we can use the tracker to know where they are in the event of an adverse decision from the Home Office, so that we are able to find them. At the moment, we do not have powers to do that because of the Regulation of Investigatory Powers Act 2000. I would like to see an amendment that enables that to happen. We know the tagging systems have not really worked. In the unlikely event that we keep SORA or the Rwanda plan—I do not expect the Government will—we really need to look at options for offshoring asylum claims from people who have arrived from a safe third country. If we cannot send them back, we could send them to another safe country—ergo, Rwanda—where they could be resettled safely without adding to the continuing flow of arrivals by small boat from France.
Matt Vickers
Q
Karl Williams: I have two brief points to reinforce what Tony was saying. It feels to me like the Bill focuses on disruption and the interdiction of routes for entering the country illegally. It does not do much on deterrence. As the impact assessment says, on pillar 3, the changes to measures for going after the gangs, it is very uncertain what the outcome will be. That is because there is no evidence base here. The only country that has succeeded in stopping small boats is Australia. There was some interdiction work with Indonesia, but it was primarily about the offshoring agreement, which was a major plank of its deterrence. I would like to see deterrence measures added, not just disruption.
Secondly, on the Border Security Command, to reinforce what Tony said, data information is really important. Migration policy, legal and illegal, has generally been bedevilled by very poor quality Government data. It seems the new Border Security Commander will have limited ability to take operational control. One thing I would like to see them have is power to access and pull together data, so that we can have a much better picture.
Matt Vickers
Q
Tony Smith: One thing I have raised is the possibility of a biometric entry/exit system, which we do not have in this country. I chair a lot of conferences around the world, on border developments, border security and border technologies. Your face will become your passport sooner or later—sooner in some countries than here. If we had the powers and authority, we could capture a digital biometric image of everybody entering and exiting the country, and we could require the carriers to do likewise—we do not have physical embarkation controls.
This is happening in America. It is happening in Dubai. It is happening in Singapore. We are going to Curaçao, which now has a walk-through border. All it does is capture your face. It matches you to the API data that you already have, uploads it into the cloud and recognises you straightaway, so you have a more seamless border. It will give proper figures on who is in this country and who is not. Your net migration figures will be a lot more accurate than they are currently, provided that we have the powers to capture and retain everybody’s facial image. That means UK passports, Irish passports, electronic travel authorisations and visas, and permanent residents. I think that is achievable, and I would love to see it happening in this country.
Dame Angela Eagle
Q
“significant fall in the percentage of the indigenous (white British) population.”
Can you explain what your worry is, and could you define “indigenous white population”?
Alp Mehmet: First, I am a first-generation migrant. I came here as an eight-year-old. I have been here since the mid-’50s. The immigrant ethnic minority element of the population in those days was something like 4%. In the 1951 census, it was 3.9%, and it is now 25%. That has substantially happened over the last 30 years.
What worries me, if that is the right word, is the fact that people are being added to the population, and migration is the only driver of population increase at the moment. I know you have David Coleman coming up next. He will tell you a great deal more about the likely evolution of the population’s demographic mix. That is my concern. Having arrived here as a migrant, and accepted and joined this country and made it my own, I see it now changing very rapidly into something that the majority of people in this country do not want to happen.
Dame Angela Eagle
You still have not told us what indigenous means, but thank you very much.
Mr Forster
Q
Tony, you talked about your perfect solution to borders. You did not mention the costs. Do you have an idea of the set-up and running costs?
Karl Williams: The short answer is that we do have safe and legal routes. The new Home Office immigration data, which was published this morning, pointed out that last year 79,000 people arrived through safe and legal routes. Since 2020, about 550,000, maybe slightly more, have arrived by safe and legal routes: Ukraine, Hong Kong, the Afghan resettlement schemes, and people arriving through UN programmes and from Syria, yet that does not stop the crossings.
The fundamental problem is that there will always be more demand to come to this country than we would probably be willing to allow for through safe and legal routes. One stat is that, a couple of years ago, Gallup did a very wide-ranging poll of attitudes on migration and found that, globally, about 900 million adults would migrate, given the opportunity—30 million of those people put Britain as their first choice. There is always going to be a longer queue to get in than we have capacity for at any given time. That is my view.
Tony Smith: I do not have a detailed financial breakdown for you, but I can say that the direction of travel in the UK and around the world is to take away officers from the border and to automate a lot of the processes. We are doing that here already: we move, I think, more people through e-gates than any other country does. This is an automated border that will reduce the number of officers required to do frontline, routine tasks, which they really do not want to do, and enable them to target the people they want to focus on. If you were to do that detailed analysis, you would probably find that it will be cost-neutral in the end.
Mr Forster
Q
Karl Williams: I do not think it combats it, and I do not think it is a disincentive. The ideal solution is that, once we have control over the small boats, and therefore who is coming to this country, we can have a serious conversation about, if we want, expanding safe and legal routes, what that might look like and what other parts of the world we might want to help. But so much resource is now sucked up by dealing with the downstream consequences of the channel crossings, such as the hotel bills and so on—this is a sequence of things. I do not think having a safe and legal route is in itself a disincentive to small boat crossings.
Jade Botterill (Ossett and Denby Dale) (Lab)
Q
Tony Smith: I do not think any of it was good value for money for the taxpayer, was it? The history and record speak for themselves. But we need to think about why it did not work and look at the reasoning behind why it took three years to try to get the process going. An awful lot of work was done in Rwanda and the Home Office to try to make it happen, but it was subject to continual legal challenge. Legal challenges were made in Europe, in the domestic courts and by judicial review. On a number of occasions, flights were lined up that did not happen, and a lot of money was therefore wasted in the process.
I am not a big fan of the Illegal Migration Act. Some of it was cumbersome, because it put all the eggs in the Rwanda basket. Rwanda was a limited programme—obviously, we could not send everybody to Rwanda—but under NABA, you had the option to triage and put some people into the Rwanda basket: those hard country removals, where you could not remove them anywhere else. You had that option, but you could still do what you are doing now and process people from places like Turkey and Albania, put them through the asylum system and return them to source.
Losing that triage option is going to be a big drawback, and it is going to cost a lot more money in the long run. The intake will continue to come, and you will then have to rack up the associated asylum, accommodation and settlement costs that run along with that.
Karl Williams: I would ask: “Value compared with what?” There is one argument around the counterfactual of if you had a deterrent, but I would also refer to the Office for Budget Responsibility’s analysis last summer on the fiscal impact of migration. It estimates that a low-skilled migrant, or low-wage migrant as the OBR puts it, will represent a lifetime net fiscal cost to the taxpayer of around £600,000. We know from analysis from Denmark, the Netherlands and other European countries that asylum seekers’ lifetime fiscal costs tend to be steeper than that, but even on the basis of the OBR analysis, even if everyone ends up in work, if 35,000 people cross a year, which is roughly where we were last year, at that sort of cost range, it will probably be £50 billion or £60 billion of lifetime costs. Compare that with £700 million—it depends on what timescale you are looking at.
Pete Wishart
Q
If I am unfairly characterising your view, you can correct me, but your view is that they should not get into the UK, that they should be stopped either in the sea or the minute they arrive in the UK, and that at that point they should be booted out somewhere—if not Rwanda, some other country—or just put back to country of source. Is that roughly your view? You can just shake your head or nod.
Tony Smith indicated assent.
Pete Wishart
Q
Tony Smith: I do have sympathy with them. I do sympathise. Many of us, I suspect, would do the same. My issue is that they have travelled through a great many countries to make it to the UK. We used to have the United Nations High Commissioner for Refugees resettlement programme, when we had control of our borders. I was a big fan of that; I went to Canada and studied it for three years. We were actually searching the world and working with the UNHCR to identify the most vulnerable people and set a cap on the numbers that we could take. That was going on in Canada, Australia and the UK.
If you look at the UNHCR website and see the numbers of people who are going through that programme now, they are not getting resettled. The reason why not is that the business model has been taken over by the smugglers. That is why we are getting large numbers of young men who can afford to cross multiple borders and pay smugglers to get here. I would like to see a return to the system where we have control of those irregular routes. Then we could start looking, as Karl said, at reintroducing UNHCR resettlement programmes, going to the UNHCR and taking a certain quota into the UK in a managed way.
Alp Mehmet: Out of Gaza, there are going to be potentially 2 million people who would like some comfort, so they would like to move to somewhere a bit more convivial than Gaza is at the moment. But, if I may ask the question, why is it assumed that—because people like us advocate control and discouraging people, a lot of the time, from risking their lives, not just in crossing the channel but in living rough as they do—discouraging them from coming is in some way inhuman, insensitive and unkind?
Pete Wishart
Q
Alp Mehmet: We do, and even in my day as an immigration officer 50 years ago, that was exactly what we did. Tony rose to run the show, but I would argue that we had far more leeway in the ’70s as very junior, humble individual immigration officers. We were properly trained, we were monitored, we did things entirely within the law and we dealt with people humanely. It does not mean that that will not happen because we are saying, “No, you shouldn’t jump into a dinghy and make your way over here.”
Jo White (Bassetlaw) (Lab)
Q
Alp Mehmet: Tony, you start, and then I will catch up with the question, because I did not quite hear.
Tony Smith: We may well say the same thing. The question was about the fact that the Rwanda plan did not deter anybody because we still had 84,000 people arrive. I think the reason for that was that it was never, in fact, implemented. The intelligence coming across from Calais was that the smugglers and migrants never believed that it was going to happen. Once it became clearer that the Safety of Rwanda Act had passed, and that it might well become a reality, there was intelligence to suggest that some people were thinking twice about getting into dinghies, and there was some displacement into Ireland as a result. Of course, we will never know now, because we never actually implemented it.
We had a change of Government, and the new Government made it very clear that they were going to abolish the Rwanda plan, so we are where we are, but I would have liked an opportunity to see what would happen if we had started at least some removals. We had flights ready to go. I would have liked to see the impact that starting some removals would have had on the incoming population. We will never know now, I am afraid. Clearly, we hardly removed anybody to Rwanda in the end—I accept that—but I would have liked us to at least try, to see if it had an impact.
Alp Mehmet: It was never going to be the solution. It was not going to be the way to stop those people jumping into boats and coming across, but it was going to help. There needed to be other changes. I appreciate that we are not going to resile from the European convention on human rights any time soon, but while it is there, it is very difficult to be certain that people will be dissuaded. Some will be, some would have been, and we know that some were already being deterred. It was a pity, I am afraid, that the Rwanda deal went.
Katie Lam (Weald of Kent) (Con)
Q
Karl Williams: If we are talking about what deterrence we might need or what pull factors there are, having charities that in some circumstances are facilitating people crossing the channel is clearly an extra pull factor—probably a small one in the grand scheme of things, but it is there. I am thinking about organisations such as Care4Calais, which provide, for example, phone-charging services to migrants who are waiting in the sand dunes and the camps around the beaches where the crossings are made. They can recharge their phones; they are therefore in contact with the smuggling gangs. I think that there is a hole in the system that needs to be closed, and I do not think that this Bill does it.
Tony Smith: There are charities and charities. Some charities are not in any way involved in facilitation; it is a pure “care in the community” exercise or function in Calais. But I think other charities are a little bit more mischievous: they might be helping people with what to say when you are near the border, how to present your asylum claim, and how to get to a beach that might not be patrolled. I would like to see more work done on that.
Becky Gittins (Clwyd East) (Lab)
Q
Given that the Bill clearly provides a deterrent to smugglers, to the people-smuggling business and to the criminal gangs in the channel by disrupting their activity, and by making it a greater expense, why do you still think it is a mistake—I think two or three of you said it outright, but you all seem broadly supportive of the Rwanda scheme—to be repealing those Acts with the Bill?
Tony Smith: There is the Nationality and Borders Act 2022, and there is the Illegal Migration Act 2023. I said earlier that I was not a great fan of the IMA, for the very reasons that you have stated: it brought in the ban too early, and people were being banned from re-entering this country before we had even removed them. That was impacting on port cases. It was a hugely difficult time, because that law put all of the eggs in the Rwanda basket. As you say, that left increasing numbers of boat people being served with a notice that they were going to Rwanda, when they were never going to go to Rwanda; they were going into the system that you described. I do not think that that was a very good idea. If we had put the IMA to one side, with the duty to remove, we could have stuck with NABA.
Then we had SORA, the Safety of Rwanda (Asylum and Immigration) Act, which would have turbocharged NABA. It would have given you a triage option: either to accept people into the asylum system quickly and process them, as you are doing now, or—for others, where you wanted to make a point that it is not okay to come across in a small boat and get to stay in the UK—to send some of them to Rwanda. That is what we could have done under NABA and SORA, and my view is that the IMA disrupted that.
Karl Williams: I suppose the asylum backlog of inadmissible people is a function of the disjunction whereby different parts of the legislation are being implemented at different speeds. Obviously the intention at the beginning was that we would have the flights going off in January or February 2023. When the ECHR injunction stopped the first flight, that derailed it. You could conceivably have had a situation in which a combination of some offshoring and the deterrent effect of that meant that the backlog of inadmissible cases did not grow. The fact that Rwanda was stalled in the courts for a couple of years, and then just did not happen at all, meant that that amount was inevitably going to increase. That was then locked in.
Mike Tapp
Q
Tony Smith: No, I have not spoken to the DG of the National Crime Agency. I am retired, so there are probably different constraints on what I can say versus what you can say when you are still working for the Government. But I am very close to Border Force immigration enforcement and a lot of my former colleagues who are still working. I went out on the boats with them last year and am very much in touch with what is going on there.
I worked under the UK Border Agency. We had agency status, and we were at arm’s length from Government. I had specific removal targets that I had to deliver. I had end-to-end teams: I had front-end teams, asylum teams and immigration enforcement teams in a region, working a case from start to finish, with rigorous case conclusion targets. I liked that system, because I thought it worked, but it got broken up into silos—we now have directors general for Border Force, immigration enforcement, migration and borders, and homeland security, and now we are putting another one in for Border Security Command. That is quite a jumbled mirage of civil servants. If you then have crime agencies—NCA, the police, and the security services—it gets really complicated, so I can see why you want a co-ordinator. But that is what it is: a co-ordinator, not a commander.
I was Gold commander for the UKBA at the London 2012 Olympics. I was in charge, basically; obviously I was answering to the Home Secretary on decision making, but it came to me because I had command over all those units. Now, you do not have that, because the Home Office is very gradeist. You have all these directors general for a whole bunch of silos, so it is going to be a heck of a job for the new security commander to actually direct activities to those agencies that have other priorities and other responsibilities. That is why I would like to see them have agency powers—arrest powers, enforcement powers—and to have a look at that whole structure of Border Force enforcement and migration enforcement, and ask, “Is this too unwieldy? Can we have a more streamlined process whereby we have somebody calling the shots?”
Mike Tapp
Q
Tony Smith: I know you have an order coming in next week that will allow biometrics to be captured, but I do not think it goes far enough.
Mike Tapp
Yes, we are. It is coming in this year.
Tony Smith: We do not have a biometric entry/exit system. The EU is bringing in EES, which means Brits will have to give their biometrics on entry and exit. We are bringing in the electronic travel authorisation—the ETA—but that is different from an entry/exit system.
Tom Hayes
Q
I also want to ask you about that report. In a previous answer, you raised the importance of counterfactuals. In reaching the overall recommendations and assessments in your report, did you consider counterfactuals such as the fact that migrants might move up the wage and skills distribution and might not always remain on low pay? In the absence of migrant workers, for instance in health and care settings, there would need to be other people who could do their work. Did you consider the economic impact of having nobody in those roles to do that health and care work, and whether that would affect the worklessness in our country? Did you consider whether there could be a reallocation of British workers into higher-skilled and higher-wage jobs as a consequence of those migrant workers? Did you think about the economic impact of potentially more people doing unpaid care because of a lack of paid carers?
I ask those questions not because I feel we should rely on migrant workers—I do not—but because your report has been lauded by the shadow Home Secretary and other Conservative Members of Parliament. I want to make sure that if it is being used as a point of reference, the data and the assessments have integrity. If you were to consider those counterfactuals, I wonder whether that would affect your report.
Karl Williams: To clarify, we are talking about the report on indefinite leave to remain that came out recently, not the report from last year.
Tom Hayes
I forgot the name of it. The “Here To Stay?” report?
Karl Williams: Yes, that is the one. That is purely about the fiscal impact. There is some analysis, which I can go into in a minute, on the broader economic picture in the previous report, but this report was more tightly focused.
Tom Hayes
But inevitably the counterfactuals would have an impact on the fiscal burden carried by the state.
Karl Williams: Indeed, yes. The counterfactuals we did think about were different levels of stay rates and different rates among different wage profiles. Migrants earning more as they go through the system clearly does happen to some extent, whether through out-migration or through career progression. In conducting that analysis, we stuck to the fiscal profiles used by the OBR, because, as you say, the data quality is fairly poor. That was the best there was, without trying to construct our own estimates for ingoings and outgoings as migrants progress over their life course in the UK. The OBR models it by age, so it captures the different wage contributions that you make at different points in your life, which will be higher in some points and lower in others. It also captures the different burdens of, for example, healthcare in old age.
I am glad that you have raised the quality of the data. We have repeatedly pointed out, as have the Governor of the Bank of England and the Office for National Statistics, that the labour force survey is very broken. In that report and in previous reports, we have always pushed the point that we need better data. Everyone needs better data. This is one area where there is broad consensus, whether you are restrictionist or want more migration or whatever else. I understand that the reference here is to Denmark and the Netherlands.
Tom Hayes
Q
Karl Williams: The report is very clear about the assumptions we have made at various points and the unknowns. With any modelling exercise, whether you are conducting a fiscal model of an effect of a tax change or whatever else, you have to make reasonable assumptions.
The Chair
Thank you. That brings us to the end of the time allocated for the Committee to ask questions of this panel. On behalf of the Committee, I thank our witnesses very much for their evidence.
Examination of Witness
David Coleman gave evidence.
The Chair
Good afternoon. We will now hear evidence from David Coleman, emeritus professor of demography at the University of Oxford. We have until 3.40 pm for this witness. Could you please introduce yourself briefly for the record?
David Coleman: Yes, of course. My name is David Coleman. I am emeritus professor of demography at the University of Oxford. I have been retired for over 10 years, and I interest myself in all sorts of aspects of demography—not just migration, but mortality, fertility and all the other things that we play with.
Matt Vickers
Q
David Coleman: The sad fact is that I do have reservations about the Bill, but I do not have any magical solutions to put that right, I am sorry to say. It is, after all, an intractable problem, this question of asylum and migration.
My concerns are that we have to, we are forced to, restart or intensify a war that we may not easily win. Rather like, as I suggested in my note, the war against drugs, it will be difficult—probably perpetual and probably indecisive. It will have some effect. It will consume a great deal of effort. It may involve unkindness to asylum seekers and possibly risk to those doing the investigations. It is, I think, very much second best to the idea of trying to deter migration for asylum claiming in the first place. That, of course, was dismissed by the present Government as being unfeasible, unworkable and unkind, so the Rwanda scheme was scrapped. However, although it sounds rather brutal, it seems to me that the only obvious way of deterring movement to Britain is by making the movement to Britain unattractive. The obvious way of doing that is to divert at least some of the claimants somewhere they will be safe but will not enjoy the benefits of being in a rich country.
There are four ways of dealing with the issue, are there not? One is to have open borders, so that everybody who wants to come can come. Then there are two ways of being nasty: one is being nasty to the smugglers themselves, which is, I suppose, what the Bill is primarily about, and the other is being rather nasty to people who wish to claim asylum, which the previous policy did. Alternatively, you could have special routes for selected people who can be investigated, possibly by the United Nations High Commissioner for Refugees, and then admitted. That has, as far as I can make out, been ruled out by the Government for the time being.
Matt Vickers
Q
David Coleman: The lesson that everyone cites is the example of Australia, which, depending on which Government are in power, has a policy of diverting people right across the other side of the Pacific to an island where they were notionally safe, but where they were not able to enjoy being in Australia. That is supported or not supported depending on which Government is in power, which is one of the problems with migration policy. Generally speaking, whether the doors are tight shut, half open or fully open depends very much on the swings and balances of electoral change and is rather unpredictable. That is inevitable.
Dame Angela Eagle
Q
David Coleman: Yes and no. The Galton Institute does not exist any more; it has changed its name to the Adelphi Genetics Forum.
Dame Angela Eagle
But it is a eugenics organisation?
David Coleman: No, it is not. It is devoted to genetics research and has conferences every year on genetics research. It promotes research into that and has a small grant fund that people can apply for. It is a very pukka organisation.
If you have any doubts about it, I suggest that you look at its publications and its website. You will find something by me on that that is only slightly connected to genetics: “New Light on Old Britons”—it is about palaeontology and human evolution. That is one of the things that the organisation was interested in. You are quite right that it started off as the Eugenics Society, and before that it was the Eugenics Education Society. That was in the days when progressives of every kind clustered around to support eugenic ideas because they were thought to be improving and beneficial to society. Society has changed its mind—
Dame Angela Eagle
Q
David Coleman: It got a terribly bad name for that reason—exactly so. That is why, over the last century, opinion has moved against using that word and using those notions. But I respectfully point out that it has nothing to do with asylum seeking.
Dame Angela Eagle
Q
David Coleman: I suppose, as a rather bad Christian, I am bound to believe that, but the problem with human rights definitions is that they tend to be infinitely extendible. All kinds of entitlements that started off being universally accepted by almost everyone of good will tend to get expanded beyond reason.
Dame Angela Eagle
Q
David Coleman: I mean making the prospect of life in the country of intended asylum less attractive than otherwise might be the case. That is what the Rwanda policy was. I suppose I was speaking slightly tongue in cheek in calling it “nasty”, but it certainly is not the same thing as being welcoming, is it? The idea of the Rwanda Bill was to secure the safety from persecution and risk of death for asylum seekers, which is the aim of asylum, without admitting them to Britain and all the benefits of being in a rich country.
Dame Angela Eagle
Q
David Coleman: I am not here to defend the Rwanda policy, although I think that, in principle, it had some merit. That is a problem that would arise whether there was a Rwanda policy or an Illegal Migration Act or not, because of the sheer pressure of asylum seeking from all corners of the world. That has been the case in the past for a long time and will continue to be the case. We now have asylum claims up to 99,000 in the last year, so it is not just to do with the Illegal Migration Act; it is a worldwide process.
Dame Angela Eagle
Q
David Coleman: I do not know how important the Illegal Migration Act was in increasing the number of the backlog, to be perfectly honest. In the past, it has been the same height without the Illegal Migration Act. About 15 or 20 years ago, it was also 90,000 per year, and that was way before any of the past legislation was enacted.
Pete Wishart
Q
David Coleman: This is a formidable tutorial group to try to give such an answer to. If I could say with any kind of confidence what was going to happen by the middle of the century, I would deserve a Nobel prize.
Pete Wishart
Q
David Coleman: I can do my best. The present situation, as you are obviously suggesting, is rather dire from the point of view of domestic demography, such as the fact that the so-called total fertility is down to 1.44 and may fall further. Therefore, it presages considerable population ageing and decline should it continue.
At the risk of being technical and boring, I would point out that total fertility is a snapshot. It is only a calculation of, on average, how many babies the average woman—if you can imagine an average woman—will produce over a lifetime, if the same levels of age-specific fertility were to continue, which refers to the same levels of birth rate at the ages 15 to 19, 20 to 24, and so on. If that continues at the present level, in the long run you will get 1.44 babies. This is a very volatile measure; it goes up and it goes down. Back in 2010, it was 1.94, which is really very healthy and probably as high as you could possibly get.
Pete Wishart
Q
David Coleman: Yes, or 2.1. That is true, although there is a risk of starting another hare. I suggest that some degree of population ageing and population decline is tolerable, particularly when we are faced with a world whose habitable area is shrinking and productivity is declining, thanks to the inevitable level of global climate change. The last thing we want, it seems to me, anywhere, is population growth. Population stabilisation and population decline, as long as it is modest and eventually comes to an end, is to be welcomed. I have said that with colleagues on a number of occasions.
I do agree that the present level of fertility is very unsatisfactory; it would be much healthier if it were higher. One gets into perilous waters trying to persuade people to have more children. The important thing is to identify those obstacles that stand in the way of the family size that people keep on saying they want to have. Despite all the problems at the present time, opinion polls suggest that people still want to have, on average, almost two babies or even more than two babies, but they cannot, for all sorts of reasons. In this country, some of those reasons are very obvious. One is the atrocious cost of housing. House prices are now at nine times the level of the average income, compared with three or four times, which was normal in the past.
The Chair
Sorry, we have four minutes left and I have three people to get in.
David Coleman: Forgive me; I ran away with myself. I am so sorry.
Margaret Mullane (Dagenham and Rainham) (Lab)
Following on from what the Minister asked you about how we have to be mean or have open borders, I looked at your written evidence, in which you have put as your ninth point, “Make Britain unattractive again”, and then you refer to the Rwanda policy. You say that you do not really know, but we had the National Crime Agency in before you and they were quite optimistic about the deterrent aspects of the Bill. Are you saying that you are not at all?
David Coleman: I am not, but at the moment it is to some extent a matter of opinion. The sorts of measures being proposed in the Bill are a development and accentuation of what has been done already. After all, the Government are not doing nothing to try to moderate asylum seeking; they have already, like the previous Government, been involved in discussions with our neighbours to try to come to an agreement on all sorts of aspects of migrant trafficking. The Bill is trying to ratchet that up, perfectly reasonably.
So far those measures, although admittedly not as intense as this Bill wants to impose, have not been notably successful. I drew a parallel with the war against drugs, which has an effect. It reduces the volume of drugs in circulation and puts drug pushers in prison, but it also puts up the price of drugs. There is a rather depressing parallel there.
Chris Murray
Q
David Coleman: That, I suppose, is the reason why the previous Government wanted to try to do something very different indeed in the Rwanda policy.
Chris Murray
But they passed the Act.
David Coleman: It was never tried. It might well have failed, but it was certainly a different avenue. It was not the one you had in mind, I am sure, but it was none the less a different way of doing it. It was attacking the problem from a different angle—from the question of demand rather than control.
The Chair
Order. That brings us, unfortunately, to the end of the time allocated for the Committee to ask questions. On behalf of the Committee, I thank our witness for his evidence.
Examination of Witness
Professor Brian Bell gave evidence.
The Chair
We will now hear oral evidence from Professor Brian Bell from King’s College London. We have until 4 pm for this panel. Could the witness please briefly introduce himself for the record?
Professor Brian Bell: I am Professor Brian Bell, the chair of the Government’s Migration Advisory Committee.
Matt Vickers
Q
Professor Brian Bell: I think it is fair to say that it is an open question whether it will be effective. The evidence from lots of previous experiences is that it is actually very hard to deter this kind of activity, but I suppose you have to try everything you can and see what works. If something does not work, you try something else.
In some sense, it is an unanswerable question at this point, and it may be unanswerable in the long run. Suppose that the Bill is passed and small boat numbers go up. That does not prove that the Bill failed, because we do not know what the counterfactual is of what would have happened without the Bill, and vice versa: if the numbers go down, it could just be that the number of people who wanted to come to France and then on to England had fallen. It is going to be very difficult to directly observe the effect. Whenever you think about these issues, you always have to think about both the deterrence and sanction effect, which is what the Bill is focused on, and then how you change the underlying incentives.
Matt Vickers
Q
Professor Brian Bell: I do not think so, in the sense that I do not think any country has experienced these issues and dealt with them particularly successfully. There are different approaches—obviously, Australia has taken a different approach—but I do not think that any country would claim that it has really succeeded in significantly addressing this kind of problem.
To me, it is very much the same kind of problem as any sort of criminal activity. You can change the sanctions and the effectiveness of the police, and that has some effect. The evidence tends to suggest on this sort of thing that it has a fairly small effect. The deterrence effect tends often to be quite small with these policies, so in the end the right response will almost certainly be about changing the incentives as well, in terms of both what is the attraction to come to the UK and whether there are ways we can encourage people to stay in France, in this case, instead of wanting to make those journeys.
Dame Angela Eagle
Q
Professor Brian Bell: Yes.
Dame Angela Eagle
Q
Professor Brian Bell: Absolutely, but that is sort of true of all crimes: if someone is committing a crime, you want to stop them doing it. I think the difficulty is in the question: if you stop one criminal doing it, what happens? Is there a substitution effect where you just get the next organised crime organisation taking action? The risk is that you may well succeed, but the overall macro effect of that may be not as positive as you might hope.
Dame Angela Eagle
Q
Professor Brian Bell: Absolutely not.
Dame Angela Eagle
Q
Professor Brian Bell: It is likely to have some positive effect. In some sense, it cannot have a negative effect, so it must have some positive effect. The difficulty is that, as almost everyone would accept, it is impossible to judge ex ante what the size of that effect will be, but that sort of tells you that you should try it and see how it works.
Dame Angela Eagle
Q
Professor Brian Bell: It is an effort worth making, but I would caution that in other areas of police and crime activity, the impact of being tougher with sanctions and new offences does not necessarily lead to very substantial changes in crime rates. The overall crime rate in the UK is almost certainly driven more by incentives and economic outcomes in the long run than it is by particular offences and statutes that are passed.
Dame Angela Eagle
Q
Professor Brian Bell: Completely.
Mr Forster
Q
Professor Brian Bell: I do not have expertise in that area. I am confused as to how significant it will be. As I understand the Bill, it will allow HMRC to share customs data with other parties. It is not clear to me what that achieves. It would be wrong of me to imply that I have any particular operational understanding of how that will help operations.
Mr Forster
Q
Professor Brian Bell: Data sharing overall can be phenomenally valuable in thinking about immigration more broadly. The Migration Advisory Committee has been very clear that we need to improve the data. We have access to data from HMRC that we find very useful on the legal migration side. Fundamentally, the question is: what data does HMRC hold that will provide useful information to border security in terms of stopping organised immigration gangs? Presumably, the Government think that there are some useful points. My view is, “Why wouldn’t you try it and see if it helps?” If it does not, you are no worse off.
Chris Murray
Q
Professor Brian Bell: I will take those questions in reverse order. I do not think they were very effective. Again, I would caution that there is always this problem that you see a piece of legislation passing and then look at the numbers and try to guess whether it was the legislation that caused the change that you see. Other things are going on, so it is always difficult to do that.
More broadly, the evidence that we have from people seeking asylum is that the exact nature of the rules that exist in the country they are going to are not big drivers of their decision to go there. People have asked asylum seekers to list the reasons they want to come to the UK, and very rarely are they things like the legal system in operation for dealing with asylum claims. It is all about the fact that English is the most common language in the world and often the second language of these people. There is often a diaspora in the country, or labour market opportunities are potentially better than in some of the other countries. Those things are generally much more important than whether your asylum claim will be dealt with in Rwanda. I do not think that many people concern themselves with that.
The numbers are certainly not consistent with a story of a very significant deterrent effect from the Rwanda Act. Of course, asylum seekers might have been really clever and spotted that it was probably going to be declared illegal by the Supreme Court—perhaps they were prejudging the legality of the measures. The cost was staggering for a policy that was very unlikely to have a significant deterrent effect. The previous Government’s difficulty was that they could never actually tell you how many people they thought would be sent to Rwanda. It is not a deterrent if you are sending a few thousand people every year.
Chris Murray
Q
Professor Brian Bell: Well, four went voluntarily, but if the policy had been implemented in full, there were never any guarantees. We certainly would not have been able to send 100,000 a year to Rwanda; Rwanda was never going to accept that. The cost was astounding, given the likely deterrence effect. It illustrates a problem in the Home Office at the time: there was little rational thinking about what the costs and benefits of different policies were. My personal view is that getting asylum claims dealt with more quickly would have been a much more effective use of public resources. That is in the interests of not only the British public but asylum seekers, as most of their claims are accepted. If we could have got them through the system faster, got them approved if they were approved, got them into work and integrating within their communities and, if they were rejected, actually deported them, that would have been a much better use of public resources.
Pete Wishart
Q
Professor Brian Bell: I think the numbers will be quite small. In some senses, a good piece of legislation makes a criminal offence so serious, and a penalty so severe, that no one commits the crime. There is a risk that you think you have failed because no one is convicted, but actually if you deterred the behaviour then it succeeded. The reality is that if there are any convictions, it will be almost entirely asylum seekers who are convicted. I do not see how the gangs will be convicted because, as I understand it, they are not on the boats.
Pete Wishart
Q
Professor Brian Bell: That is the implication of the legislation. I am not a lawyer, so I should be careful here, but I understand that there is a defence in the legislation that would allow you to claim that you were essentially forced into doing it, under sort of human slavery conditions.
Pete Wishart
Not according to the current numbers: 205 is a lot of people being convicted for being compelled to drive a boat—
Jo White
Q
Professor Brian Bell: It is probably not a very strong deterrent. To repeat myself, all the evidence is that when asylum claimants think of where to claim asylum they do not have detailed knowledge of the ins and outs of the procedures of different countries. They almost certainly do not know what might happen in five to 10 years, which is the length of residence that they would need to apply for citizenship, so I am not sure it will be a significant deterrent. However, it is important to recognise that citizenship is not a right; it should be viewed as a privilege that people earn. It is reasonable for the Government to take the view that citizenship should not be given to certain people. I do not think there is anything wrong with that—it seems a legitimate observation.
Katie Lam
Q
Professor Brian Bell: You would not want to disrupt some of the incentives. For example, the unemployment rate is 7.8% in France and 4.4% in the UK. The gap is slightly larger for young people than for the population as a whole. I am sure the Government would not want to change that incentive, although the French probably would. If you have a buoyant economy relative to your neighbour, at least in the labour market, that is an incentive. There is an incentive in terms of things that you would not necessarily want to change. The English language is really important as a pull factor, and the fact that there are diasporas already in the country.
There tends to be some evidence that the UK has been somewhat more successful than France at integrating immigrants into society, particularly second-generation immigrants: there is some evidence that whereas employment rates are always very poor for first-generation immigrants relative to natives, that gap narrows quite a bit in the UK when you look at second-generation immigrants. That is less true in France, so people may think the opportunities are better here.
The area where the Government could take action—and they are with the Employment Rights Bill—is that we have lots of employment rights in this country, but do not bother enforcing any of them, because we do not spend money on HMRC minimum wage enforcement teams and the Gangmasters and Labour Abuse Authority does not have enough money to employ people to do all the work it needs to do. If the Fair Work Agency can take over and actually be beefed up, then we can enforce labour standards a bit more and that may discourage people, because one of the attractions of coming to the UK is that our looser enforcement of rules in labour market makes it easier to employ people who are here irregularly.
Tom Hayes
Q
Professor Brian Bell: That is a speculative number. It is actually extremely difficult to work out the fiscal impact of migration. We are doing it at the MAC at the moment. We can only do it because we have access to data that the CPS could not possibly have. I do not know how you do that kind of analysis without making really very brave—and some may say foolhardy—estimates of what these people are going to do when they are in the UK. To give a very simple example, we currently do not know what dependants do when they come into the country. Let us say we issue a skilled worker visa and a dependent comes in. We will know nothing about what they do because the Home Office, quite fairly, does not pursue finding out about that dependent because they are here legally, but you need to know how much they earn and if they are in a job to work out what their contribution will be over the next 50 to 60 years of their life.
I think it is very dangerous to just make broad assumptions about, “Oh, they are going to be like this and they are going to earn this”, and then you can come up with a very big number. I could choose a big group of British people who will also have very big negative effects, because if you just choose people who are low earners and perhaps people who are disabled, you automatically get those numbers because they are entitled to more benefits in the long run, and they do not pay as much tax. I am not particularly sure what that tells us.
Tom Hayes
Q
Professor Brian Bell: As I understand it, the big difference is that in the Australian system, if your asylum application was granted, you were brought to Australia; the system was just offshore processing of the application. That is very different from the Rwanda scheme, where we were essentially washing our hands of any responsibility going forward for those asylum applicants. The Australian model is worth thinking about if you could find countries that would be willing to process the applications, because we are spending—let us be honest—an absolute fortune on housing asylum seekers here while we consider their claims. If you could find a cheaper and more effective way of doing that, while still recognising that we have the responsibility to take those asylum seekers who have claimed asylum in this country, that would be worth considering.
The Chair
That brings us to the end of the time allocated for Members to ask questions. On behalf of the Committee, I thank the witness for his evidence.
Examination of Witnesses
Dame Angela Eagle and Seema Malhotra gave evidence.
The Chair
We will now hear evidence from Dame Angela Eagle MP, Minister for Border Security and Asylum, and Seema Malhotra MP, Minister for Migration and Citizenship at the Home Office. We will have until 4.20 pm for this panel.
Matt Vickers
Q
Dame Angela Eagle: The Illegal Migration Act was flawed legislation, which did not actually work. It was so flawed that the previous Government, even though they put it on to the statute book, did not actually commence much of it at all.
Matt Vickers
Q
Dame Angela Eagle: The issue was that we did not think it was possible to make the suite of legislation, which involved the Rwanda Act and the Illegal Migration Act, work together coherently. Its effect was essentially to allow people into the country but make it illegal to process them and leave them stuck in an ever-lengthening backlog and in limbo. The whole approach established by the interplay of those two Acts of Parliament, one of which was barely commenced even though it was on the statute book, had to be taken away so that we could bring some order to the chaos that we inherited from the previous Government, as a result of the practical outcomes of those two pieces of legislation.
Matt Vickers
Q
Dame Angela Eagle: No, we certainly have not said that. As soon as people’s asylum claims have been properly processed, and the appeals that they are allowed to make are finished, if they have failed, we will seek to remove those people—but not to a third country.
Matt Vickers
Q
Dame Angela Eagle: The Home Secretary has made it perfectly clear in the changes to the advice that if you come to this country illegally, we do not expect that you will be granted citizenship.
Matt Vickers
Q
Dame Angela Eagle: We have taken that out of primary legislation because it was connected with the duty to remove, which was about the interplay of the Illegal Migration Act and the Rwanda Act. As I have just said, it was flawed legislation that did not work in practice.
Matt Vickers
Q
Dame Angela Eagle: There are real issues about the accuracy of scientific age assessment. At the Home Office, we are in the middle of doing work to see whether we can get a system of scientific age assessment that is robust enough to use. We are certainly not ruling it out, but the effects in that legislation were all about the duty to remove—it was about trying to define children. You will remember that in the IMA, the duty to remove excluded children, which perhaps created a bigger incentive for people to claim that they were children when they were not. The scientific age assessment clauses in that Act were related to the duty to remove. Given that we are repealing the vast majority of the Illegal Migration Act in this Bill, we removed those clauses.
I would not, however, want to give the hon. Gentleman the false impression that we have completely abandoned the idea of doing scientific age assessment. Currently, we are trying to assess whether there are ways of doing it that not only are cost-effective, but can be relied on. It is not an easy thing to do; there are no very easy solutions to whether it is accurate. We are exploring those areas ahead of making any subsequent announcements about if—and how, if we do—we use scientific age assessment.
Matt Vickers
Q
Dame Angela Eagle: First, we will always seek to return people if they fail the asylum system, and have had all their claims and appeals, as soon as it is safe to do so. That is the first thing to say, and we must never lose sight of that. Situations in particular countries change—sometimes for the better, sometimes for the worse, as the hon. Gentleman knows. We never give up on that. Clearly, if people are here and have failed, we want them to leave, and we will facilitate them to leave.
Martin Vickers
Q
Dame Angela Eagle: With all due respect, I do not think they were ever going to go to Rwanda.
Mike Tapp
Q
Dame Angela Eagle: One of the important things for the integrity of any asylum system is that if people fail it, there are consequences that are different from those if they do not. It is the hard and nastier end of any asylum system: if you have no right to be here, we will want you to leave—voluntarily, if at all possible. Sometimes we will even facilitate that, but we will return you by force if we have to. The 19,000 returns that we have achieved since 4 July are an indication that we want to ensure that enforcement of the rules is being put into effect more than it was. There had been very big falls in returns, and very big falls in enforcement, and we want to put that right.
Mr Forster
Q
Dame Angela Eagle: Clearly, it is important that we try to deal with the development of organised immigration crime on our borders. Colleagues will have heard the comments from the NCA and the National Police Chiefs’ Council about how important it is to assert the rule of law in such areas. It is very important. That is the main aim of the Bill.
If the hon. Gentleman is talking about safe routes, we heard some evidence today about safe routes. I am personally sceptical that those would stop people wanting to come across in boats. If one takes the example of our Afghan scheme—a safe route for particular people from Afghanistan who have been put in danger by supporting UK forces—that is a legal route that is safe. At the same time, last year the largest nationality represented among small boat arrivals was Afghans.
We have people arriving on small boats who come from countries where we have visa regimes, so I am not convinced that we could provide enough places on safe routes to prevent people smugglers benefiting from that kind of demand. That is my opinion from having looked at what goes on and I accept the hon. Gentleman might have a different one.
Seema Malhotra: If I may add to that, we also heard in the evidence about the scale of the challenge that we face and how small boat crossings are a relatively new phenomenon, in that we had around 300 in 2018, but the number is now 36,000. In a very targeted way, this Bill is looking at what more tools we can bring in along with the Border Security Command to tackle the criminal gangs that are literally making millions—if not more—out of people who are very vulnerable.
The fact that there were more deaths in the channel in 2024 than in previous years shows that the situation is becoming even more dangerous, so we absolutely have to do everything we can to disrupt those criminal gangs. Therefore, I want to focus on that for this Bill, because we cannot do everything in one piece of legislation.
It is important, however, to correct, from my understanding, a bit of evidence that was given earlier by Tony Smith that the UK resettlement scheme was closed—it is actually still open. We have had over 3,000 refugees resettled via that scheme since its launch four years ago. The number of refugees arriving on that depends on a range of factors, and that includes recommendations from the UNHCR as well as how many offers of accommodation we have from local authorities; that is an ongoing system. This is legislation around tackling the small boats and the criminal gangs that are enabling that as a new trade.
Mr Forster
Q
To be more specific, I have a follow-up on clause 18. We are creating a new criminal offence of endangering someone on a sea crossing—why is it an unauthorised sea crossing? Why is it not a blanket endangering of someone when crossing the sea? Should that offence not be wider or is it more like an aggravating factor?
Dame Angela Eagle: I will talk about the very detailed aspect of that during our line-by-line scrutiny.
There has been a certain behaviour that has begun to happen, which has been perceived on the crossings in the small boats and which this offence is designed to deal with. That is the various kinds of violent intimidation that goes on, such as putting women and children in the middle of boats that then collapse, so they are crushed and die in that way, or holding children over the edge of boats to prevent rescue.
Sometimes if there has been a fatality on a boat—and we have seen what has happened—we go to pick people up and return them to France. The French authorities also do that. There is then a battle not to be returned and violence is sometimes used to prevent people from accepting the rescue that is offered to them. So there are some very particular things that this endangerment clause and this new offence are seeking to deal with.
Jo White
Q
Dame Angela Eagle: Well, the Border Security Commander is very happy with the powers that he has—he has been appointed. Again, we will talk about this in some detail, but it is important that we get co-ordination across different areas of activity. I think you will have heard what the NCA witness said about how he wants somebody else to do the co-ordination while he does the basic work. Everybody is working together very well across the people who have to have regard. The Border Security Commander is bringing together a range of very important players in this area to strategise and co-ordinate, and he has not told me—I meet him regularly—that he needs any more powers.
Pete Wishart
Q
The other thing is that it will have very little impact on people making the decision to come to the United Kingdom. They are fleeing oppression, poverty and war, and they do not care about the laws of the United Kingdom—what Angela Eagle is doing in a migration Bill is not going to deter them from coming here. So what are we going to do to get on top of this issue? Should we not be thinking, as we go through this Bill process, about fresh, new ideas to tackle it?
Dame Angela Eagle: Well, we have just come out of a period of fresh new ideas and gimmicks—
Pete Wishart
Yes, but that is gone.
Dame Angela Eagle: And very expensive they turned out to be. We have inherited such a mess, with huge backlogs and very long waits for appeals, that we have to try to clear up. We have an asylum system that essentially broke down—I think one of our witnesses was talking about it being “in meltdown” earlier today.
We are going to do the day job and start to get that system working. I think that having fast, fair and effective immigration decisions is a very important part of all of this, as is removing those whose claims fail so that we can actually get to the stage where people know that, if they come to this country and they do not have a reasonable chance of being accepted as an asylum seeker, they will be returned. I think that is what the deterrent is.
Seema Malhotra: If I may add one point, it is absolutely valid and right to say that this Bill is one part of trying to tackle both the criminal gangs and the demand. Certainly, the other side of the work that the Home Secretary has been leading on—in terms of agreements with other countries for returns, as well as the reasons why people are coming and what more could be put in place as a deterrent—is work that was also talked about in evidence today; international diplomacy is also an important part of the overall framework. That is going on in parallel, and it is important to be working upstream through diplomacy and agreements with other countries too.
Kenneth Stevenson
Q
I then heard that there were no magical solutions and that war was not easy to win—so we are in a “war” with migrants. We then spoke about unkindness to asylum seekers. I think that the most important words that I heard today were proactive, pre-emptive and disruptive— that is what the Government are trying to be. Do you agree that that has to start with the gangs who are starting this and are pulling—or pushing—people across?
Dame Angela Eagle: Yes. There are many genuine asylum seekers, many of whom are granted asylum when they are finally processed, who have come in that way. There are also people who are trafficked, who are in debt bondage, who go into sex work in nail bars, say from Vietnam, or who end up—as the police chief told us—growing cannabis in hidden farms in all our communities or being involved in serious crime. Some of them are victims of modern slavery, and some of them are the perpetrators of all that kind of evil.
The Chair
Order. That brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank the Ministers for their evidence.