Border Security, Asylum and Immigration Bill (Fifth sitting)
Thursday 6th March 2025
(3 days, 13 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 6 March 2025 - (6 Mar 2025)
The Committee divided: - Ayes: 3 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 13 - Question accordingly negatived.
The Chair
Would all Members ensure that electronic devices are turned off or switched to silent? We now continue line-by-line consideration of the Bill. The grouping and selection list for today’s sitting is available in the room, as well as on the parliamentary website. I remind Members about the rules on the declaration of interests, as set out in the code of conduct.
Clause 18
Endangering another during sea crossing to United Kingdom
Matt Vickers (Stockton West) (Con)
I beg to move amendment 17, in clause 18, page 11, leave out lines 24 to 26 and insert—
“(c) the vessel in which the person travelled could not reasonably have been thought to be safe for the purposes of reaching the United Kingdom.”
This amendment would apply the new offence of endangering another during a sea crossing to the UK to any individual who tries to enter the UK illegally and makes their journey in an un-seaworthy vessel, removing the requirement for the individual to have done an act to cause or create a risk of death or serious injury.
The Chair
With this it will be convenient to discuss the following:
Amendment 5, in clause 18, page 11, line 36, at end insert—
“(E1C) (a) For the purposes of subsections (E1A) and (E1B), a person cannot commit an offence if the person is an asylum seeker.
(b) For the purposes of this subsection, ‘asylum seeker’ means a person who intends to claim that to remove them from or require them to leave the United Kingdom would be contrary to the United Kingdom’s obligations under—
(i) the Refugee Convention (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999), or
(ii) the Human Rights Convention (within the meaning given by that 35 section).”
This amendment would specify that the offence created by clause 18 (“Endangering another during sea crossing to United Kingdom”) cannot apply to asylum seekers.
Amendment 15, in clause 18, page 12, line 5, leave out “six” and insert “fourteen”.
This amendment would increase the maximum penalty for the offence of endangering lives at sea to fourteen years.
Amendment 16, in clause 18, page 12, line 9, leave out “five” and insert “fourteen”.
This amendment would increase the maximum penalty for the offence of endangering lives at sea to fourteen years.
Clause stand part.
Matt Vickers
It is a pleasure to serve under your chairmanship, Mr Stuart. Clause 18 creates a new offence of endangering others’ lives during a sea crossing from France, Belgium or the Netherlands to the United Kingdom, which results in the commission of an existing offence under section 24 subsection (A1), (B1), (D1) or (E1) of the Immigration Act 1971. Proposed new subsection (6) to section 24 of the 1971 Act states that this offence
“applies to acts carried out inside or outside the United Kingdom.”
The provision is necessary for this offence. Can the Minister explain whether partner countries have comparable offences to this one that can be used to apprehend people in France, Belgium and the Netherlands?
The former director general of Border Force, in his evidence to the Committee, was clear that clause 18 would be more effective if operated by French enforcement agencies, rather than in the UK, as most of the offences occur in French territory. Can the Minister reassure the Committee that, in order to successfully prosecute these offences in the UK, UK Border Force will be able to gather evidence collected outside the UK? Can the Minister guarantee that French support in providing that evidence will be forthcoming? What guarantees has the Home Office been given?
In order to be prosecuted under clause 18 for offences committed in French territorial waters, people would need to be transported to this country if they are not already here, which would have the rather perverse outcome of more people coming and being able to claim asylum. As I have not been able to find any reference to that in the impact assessment, I would like the Minister to share with the Committee what the justice impact tests showed for this new offence. How many new prison places are going to be required at steady state? In other words, how effective does the Minister think the new offence will be?
The Opposition tabled amendment 17 as we suspect that the new offence is not going to be greatly used. Amendment 17 would apply the new offence of endangering another during a sea crossing to the UK to any individual who tries to enter the UK illegally and makes their journey in an unseaworthy vessel, removing the requirement for the individual to have done an act to cause or create a risk of death or serious injury. If a person has crossed to the UK in a small boat, they have by definition endangered both their lives and the lives of others at sea. Those boats are unseaworthy, overcrowded and everyone who gets on board is responsible for that position. It is not just the lives of people on those dangerous vessels that are placed in danger, but potentially the lives of those who rescue them.
We have tabled amendments 15 and 16 to increase the sentence for the offence to 14 years. Before the Nationality and Borders Act 2022 was passed, section 25 offences attracted a prison sentence of up to 14 years. The 2022 Act increased the penalty to life imprisonment in order to discourage unlawful facilitation of migrants to the UK, so why are the offences in this Bill for endangering lives at sea so much lower?
Since the Government have scrapped the Rwanda deterrent, we would like to help them to make this damp squib of a Bill a bit more of an effective deterrent to those considering making such a dangerous crossing from a safe third country. That is why we have tabled amendments 17, 15 and 16: to demonstrate that if an individual gets on an unsafe boat to cross the channel, thereby committing an immigration offence, they will be found guilty of endangering lives at sea. Then, as a foreign criminal, their deportation should be easier for the Home Office.
If the Minister is not going to accept our amendment, which would ensure that everyone arriving on a small boat should be found guilty of endangering lives at sea, I would like her to explain how people who cram themselves into overcrowded and unseaworthy vessels have not endangered themselves, others on that vessel and those who have to come to their rescue.
Tom Hayes (Bournemouth East) (Lab)
It is an honour to serve under your chairpersonship today, Mr Stuart.
Does the hon. Gentleman agree that on average we are seeing the number of people per boat increasing each year? He alluded to that earlier, and it means that more and more people are crowding into each small boat—he is nodding, so he seems to agree. Does he also agree that, because we are seeing more and more people crowded into these small boats, it is accounting for a rise in the number of people who are crossing the channel in small boats?
Matt Vickers
Yes—it is the case that more people are coming on fewer boats. Equally, however, there is also a rise in the number of boats that are coming across. I think that both those things are problematic. One thing that we know about these boats being filled with yet more people is that they become ever more dangerous, and we have seen some of the horrible consequences and fatalities as a result of that.
Amendment 5, tabled by the Scottish National party, specifies that the offence created by clause 18—endangering another during sea crossing to the United Kingdom—cannot apply to asylum seekers. Surely, that would render the new offence even more ineffective, as it will not be possible to charge people until their asylum claim has been determined. Someone is perfectly capable of endangering lives at sea, whether they are an asylum seeker or not.
Mike Tapp (Dover and Deal) (Lab)
I will respond to some of the points that the hon. Member for Stockton West has just made, starting with the point about the French. Under the last Government, we saw what amounted to Twitter diplomacy, continuous bashing of the French online and in the papers, and a breakdown of that relationship. Since we came into Government, we have seen that Keir and Yvette, who was out there in France recently, have looked to reset that relationship and rebuild it. I believe that recent visits that Yvette has made to France, including one that involved a meeting with the French Minister of the Interior, have been very productive. The French are looking at their laws and considering how they can improve things on their side—[Interruption.] I apologise, Mr Stuart. I mean the Home Secretary, not Yvette. The smaller Committee Rooms sometimes result in some informality.
As I was saying, the French are looking to readdress their laws, including things such as intercepting boats in shallow water, which to date has been neglected. That adult approach to politics and working with the French will help us to reduce the number of these boat crossings.
Chris Murray (Edinburgh East and Musselburgh) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stuart.
My hon. Friend is making a really important point: these cross-channel operations and strategies are more diplomatic than they are legislative. Does he agree that, because the UK is unusual in that our Border Force is not a police force, whereas the French police aux frontières, the Belgian police and all other European border agencies are police forces, we have very different kinds of operations and structures, and this work needs to be done gently, through diplomacy and not through amendments to legislation?
Mike Tapp
I thank my hon. Friend for his intervention. He makes the powerful point that the French need to be engaged with diplomatically rather than being bashed on social media, which damages our relationship with them. The way forward here is to continue with that gentle diplomacy to bring about the changes in their laws that may well benefit the United Kingdom. We have already seen results on that front in Germany. The Germans have changed laws around the facilitation of the kit to be used for these crossings, so diplomacy is already yielding positive results, and I expect we will see more of that.
My second point is that this amendment is fantasy land from the Opposition. We inherited a justice system that was completely broken and on its knees, with just 2% of prison places still available. Do the Opposition propose sticking all these people in prison? If so, where are those prison places going to come from, given what we have inherited?
Pete Wishart (Perth and Kinross-shire) (SNP)
It is a real pleasure to serve under your chairmanship for a second day, Mr Stuart. I rise to speak to amendment 5 in my name.
Of all the new criminalising clauses in the Bill, this is the one that concerns me most. It is the most invidious and cruel. As we have heard, the clause proposes a new criminal offence of endangering another during a sea crossing, with a proposed maximum sentence of six years’ imprisonment. The offence is defined as committing an act that creates a risk of death or serious physical or psychological injury to another person during a sea journey from France, Belgium or the Netherlands to the UK—in effect, all the sea journeys across the channel by, mainly, asylum seekers who are seeking refuge in the UK.
How that is supposed to be assessed is anyone’s guess. Any potential transgression of the clause could happen only in the most chaotic of circumstances—on a small boat where people will probably be struggling for their lives to try to get here. The only witnesses to any transgressions of this clause will be other traumatised souls who had the great misfortunate to be there at that time. The new offence is concerningly broad, and explicitly aimed at people on the move; it exclusively and directly targets those on the boats.
Which people may get caught up in this offence? The first category that comes to mind is those people who may have been offered rescue by the French but refused the opportunity of rescue. But why would they take that opportunity? These are people who have travelled thousands of miles to try to seek asylum in the United Kingdom. I am supposing that they make up the first category that the Minister has in mind with this offence.
However, it is also possible to prosecute individuals who, in moments of panic or self-preservation, inadvertently put others at risk. That means that someone who makes a sea crossing out of desperation could face a prison sentence simply because of the circumstances of their arrival, rather than any deliberate intent to cause harm. This law makes no attempt to take account of the high risk and chaotic nature of these journeys, where panic, misjudgment or even attempts to help others could inadvertently lead to criminal liability.
What makes the clause particularly invidious, and why we should think about it very carefully, is that it does not do even one thing to tackle what the Government say they are tackling: the gangs—the people who organise this foul trade and are responsible for putting people on the boats. It does nothing to target them. The only people who will be in the sights of this invidious, cruel clause will be ordinary asylum seekers.
The refugee convention is clear that refugees should not be penalised for how they enter a country to claim asylum. The clause runs a coach and horses through that obligation. It also breaches the Palermo protocol, which enables asylum seekers to claim asylum freely and honestly. The European convention on human rights memorandum states that
“parents who bring their children on the type of journeys that the Endangerment Offence captures will be excluded from prosecution in almost all circumstances”.
The key words are “almost all”: there could still be prosecutions, and the memorandum notes that that could lead to families breaking up.
There is another main target of the offence. It is designed to entrap and ensnare those who pilot the boats. Let us look at how far we have come with this new distinction and new category of people that the Government are now going after. It was in 2019 that the Government started bringing criminal charges against people identified as steering dinghies across the channel. Prior to this clause, those identified as piloting boats have usually been arrested and charged with the offence of facilitating a breach of immigration law under section 25 of the Immigration Act 1971.
The Nationality and Borders Act 2022 increased the maximum sentence for that offence to life imprisonment. In most cases, the second charge is dropped due to a lack of evidence—as I explained, the deeply chaotic circumstances where evidence could be acquired lead to a lack of evidence being presented in court proceedings. However, there have been some successful section 25 prosecutions. For example, they can happen when a person pleads guilty to an offence at the first opportunity before it is dropped.
Margaret Mullane (Dagenham and Rainham) (Lab)
It is an honour to serve on your Committee, Mr Stuart. I thank the hon. Members for Perth and Kinross-shire and for Stockton West for their contributions. There are a few points I want to make. Clause 18 already outlines provision within the lines that amendment 17 seeks to remove. Naming the act of supplying an unseaworthy vessel, while removing the broader terminology of an act from the Bill, sets a precedent where we would have to outline all possible acts within the Bill. That is wholly unnecessary and not in keeping with the structure of the Bill. Although providing an unseaworthy vessel is the initial act that causes risk to life, amendment 17 would serve to de-prioritise further acts of criminality that could endanger life in a sea crossing. The wording already in the Bill provides sufficient scope to address what the amendment seeks.
Following on from this, I think everybody in this room agrees with the sentiment of amendment 5—that genuine asylum seekers are vulnerable—but it is also important to recognise that someone with the right to asylum could be involved in criminality. The Bill already establishes, through clauses 16 to 18, the provision of a reasonable excuse as a defence, creating a clearer distinction between humanitarian activity and genuine asylum seekers, journalistic or academic works, and those involved in immigration crime as well. I believe that the hon. Member for Perth and Kinross-shire has already conceded that point, having withdrawn amendments of a similar nature.
Tom Hayes
It is an honour to follow my hon. Friend the Member for Dagenham and Rainham, who made a very persuasive case. She has stolen much of what I was going to say, which is actually quite helpful. I want to start by reflecting on the international situation, following up on the equally persuasive points made by my hon. Friend the Member for Dover and Deal about the relationship between the UK and France. It is worth reflecting on where we are. The current Home Secretary was the first to visit northern France in almost five years. Using a parallel Conservative political time continuum, that was six Home Secretaries ago.
In December, we had the meeting of the Calais Group in London, which was able to agree a plan to tackle people smuggling gangs. We have seen the Home Secretary and Interior Ministers from G7 countries, Germany included, meeting in Italy to agree a new joint action plan. We have seen the French Government appoint a new special representative on migration, Patrick Stefanini. He will work closely with our new role of Border Security Commander so that we have the closest, strongest, deepest engagement and interaction.
It is worth reflecting on that, because we are not going to solve the problem of small boat crossings on our own. We have to repair the damage done by the previous Conservative Government to our relationships with our major EU allies and partners. One of the consequences of the botched Conservative Brexit deal is that the UK no longer participates in the EU’s Dublin system, which determines which countries should take responsibility for processing an asylum claim where a person has links with more than one country, and provides a mechanism to return the person to the responsible country. That is underpinned by a shared database of asylum seekers’ fingerprints. It is chaotic that we had a deal that robbed us of the opportunity to take part in that system.
The Chair
Mr Hayes, I am sure that, from now on, you will want to focus closely on the subject of endangering people while at sea.
Tom Hayes
I thank the hon. Lady for her question, but I have another compelling statistic for her. Implicit in much of what the Conservatives say is the idea that the UK alone is carrying the burden of asylum seeker hosting, but the UK is actually fifth, behind Germany, France, Italy and Spain, in our receipt of the number of asylum seekers in the year ending September. The point I am making is that actually, contrary to much of the rhetoric that we hear in the Chamber and may be hearing in this debate that the United Kingdom is somehow on its own, shouldering all the responsibility for providing a safe place to asylum seekers, we are not. That is worth mentioning, because as a country we are trying to repair our relationships—
The Chair
Order. That has been mentioned, so clause 18 would now sensibly be the focus of your words.
Tom Hayes
Thank you for your patience, Mr Stuart. I will progress to my more substantive points.
I welcome the introduction of the new offence of endangering another life during perilous sea crossings to the UK, because we know that life is being endangered. At least 78 people died in the channel last year, and a total of 327 have died on the channel route since 2014. With your patience, Mr Stuart, I will talk about a particular case study.
We know that some of the lives that were cut short were incredibly young. A year and three days ago, a seven-year-old girl boarded a small boat in northern France with her three siblings, father and pregnant mother. The family joined six other children on that small boat, all of them seeking to cross the channel to reach the UK. Four other adults completed the complement on the boat. To describe that boat as small is a joke. It was later described as very small, no bigger than the kind a fisherman might use. It was too small for the number on board, which reinforces the point that I made to the hon. Member for Stockton West: that we are seeing the average number of people per boat rising, which accounts in part for the larger number of people trying to cross the channel to the UK.
The little girl I just talked about was pulled out of the water by rescuers. There were efforts to save her, but they failed. She could not be resuscitated. Aged seven, that child suffered a heart attack and she stopped breathing. Her family died. The six other children on the boat died. The four other adults on the boat died.
Later that day—3 March 2024—another boat crossing got into trouble. Thankfully, the 47 lives on that boat were saved. The night before, on 2 March 2024, another boat got into trouble when it deflated because it was not seaworthy. Again, thankfully, 20 lives were saved. But 327 lives have been lost on the channel route.
We know the facts of life in these flimsy boats. We know that every small boat is crowded with more and more people. We know that gangs are set on making as much money as possible, no matter the risk to life. We know that women and children are forced into the middle of ever smaller boats, so that when those boats fold and sink, as they do, it is they who are the first to be drowned or crushed. We know that the fuel is in containers that are so flimsy that they leak, and we know that when it mixes with seawater, saltwater, it inflicts the most horrific burns on the most vulnerable people.
We know another fact of life on these boats: the engines are among the weakest and the lifejackets are fake, do nothing and keep nobody afloat. And so I have to ask: why would we oppose the introduction of this new offence? It will ensure that anyone involved in physical aggression, intimidation or coercive behaviour will face prosecution and a sentence of up to five years.
My right hon. Friend the Home Secretary has been clear that this offence sends
“a clear message that we will take action against those who are complicit in loss of life or risk to life at sea.”—[Official Report, 10 February 2025; Vol. 762, c. 63.]
To hear that from a Home Secretary is really important for those criminal gangs that are contemplating criminality. This is about going after those who further jeopardise the safety and lives of others during crossings and who are actively preventing offers of rescue. It is not about, as some have said, criminalising vulnerable people and dangerous crossings. Indeed, the Home Office has already said publicly that the Crown Prosecution Service always considers whether it is in the public interest to prosecute individuals. This is about protecting children like the seven-year-old whose life was ended a year and three days ago.
I want to dwell on the point about child protection, because it is so relevant to the question of sea crossings and whether we have this offence to try to limit the loss of life. We heard in oral testimony from the Children’s Commissioner for England about the horrifying crossings that are taking place, but we also heard that the Conservatives had forced vulnerable children into horrifying situations when they arrived here in Britain. The commissioner stated:
“Children were languishing without proper safeguarding in inappropriate places.”––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 21, Q21.]
The Children’s Commissioner had to persistently pursue, from a Home Office that hindered her from doing her job, data on
“children who had been victims of attempted organ harvesting, rape and various other things”.––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 25, Q26.]
As she says on children who are missing:
“We still do not know where many of those children are…that is not good enough.”––[Official Report, Border Security, Asylum and Immigration Public Bill Committee, 27 February 2025; c. 25, Q26.]
I say that because we have a massive child protection issue on our sea. We have a massive child protection issue in the United Kingdom. We need the Bill to make sure that children are safe.
Kenneth Stevenson (Airdrie and Shotts) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stuart. These steps have been taken following discussions with law enforcement to be as thorough as possible in our attempts to smash the criminal gangs and disrupt an organised activity at the very source, particularly in relation to endangering another during a sea crossing, but also when it comes to supplying and handling articles for immigration crime. We must allow enforcement every opportunity to identify the causes of such crime and use the findings of any investigation to deter further crossings. If he allows me a little bit of leeway, I will refer to the hon. Member for Perth and Kinross-shire, who spoke about piloting boats.
Tom Hayes
I thank my hon. Friend for his point; I agree with him.
I want to continue to dwell on the question of children’s social care. It is this Government who have been backing children’s social care to look after unaccompanied children—something so important in the eyes of the Children’s Commissioner. It is we who are seeking to protect children when they make their desperate crossings and when they are here in the UK. It is no surprise that this Government is doing the same in other areas, such as the Children’s Wellbeing and Schools Bill in this parliamentary Session, which establishes child registers to track children not at school, strengthens multi-agency safeguarding arrangements and assigns a unique identifier for each child. I say that because children’s protection is absolutely critical.
If the Conservative party, in tabling its amendment, were serious about protecting endangered life and tackling the criminal gangs that threaten children’s safety and undermine our border security, why did it do so little during its time in office and why did it not vote for the Bill? It proposed an amendment with the express intention of killing the Bill—as we saw in the Chamber, its Whips were begging Reform MPs to back the amendment that would have killed it off. I saw that with my own eyes.
This Government have increased deportations, returns and removals, which are at the highest rate for six years. We are cutting the cost of the asylum system. I beg the Conservative party and its allies in Reform to get serious about protecting our borders and protecting children and to stop blocking progress.
Becky Gittins (Clwyd East) (Lab)
I have some comments on the amendments. I will start with amendment 5, tabled by the hon. Member for Perth and Kinross-shire. I have watched the first episode of “The Chief”, which I enjoyed and gave me some insights into the outlook—perhaps even the ambitions—of the hon. Gentleman, which were very much to my liking. Although I have enjoyed lots of the contributions you have made with such huge passion, and indeed compassion for the people you refer to, my concern is about the unintended consequences of your amendment.
Becky Gittins
Sorry, Mr Stuart. I am concerned that the hon. Gentleman’s proposal to exclude asylum seekers from prosecution opens up a situation in which someone who has come here as an asylum seeker, and then seeks to engage in illegal activity to assist more illegal channel crossings, would be exempt from prosecution. That would undermine a lot of what many of us are trying to do. My concern is not with the intention of the amendment, which is incredibly clear, but its application, which would go against a lot of the things we are aiming to achieve.
When he moved his amendment 17, the hon. Member for Stockton West did not give a definition of an unseaworthy vessel. This is potentially another area where, despite the rhetoric—which I understand to be about appearing tougher on gangs and people who attempt to make and to assist illegal crossings—the Opposition may actually have introduced an amendment to dilute the Bill.
The amendment ties criminality to the seaworthiness of a vessel. Members on both sides of the Committee have talked about the ability of these gangs: they are fast-paced and cunning, and they move with the times. The Committee heard from witnesses that the gangs regularly change tack to keep up with and get around legislation. That is why the measures we are taking are needed. There is no legal definition of a seaworthy vessel, only that, “A seaworthy vessel is a type of boat or ship that is strong enough to handle the normal stresses of being on the water, such as waves and wind. It is also capable of carrying cargo or passengers safely.” It is about not only the use of the ship, but the conditions.
Amendment 17 proposes a reasonableness test for a vessel to be deemed unseaworthy. That could include things such as having safety equipment onboard, or having qualified crew—although we have perceptions about who the people smugglers are, it is reasonable to think that some of them could have a background on the sea, as fishermen or as people who have transported cargo, so their boats could potentially have safety equipment and a qualified crew onboard. Some of the things that could be used to deem a ship seaworthy include how many crew members there are on board, which—as we have discussed in this sitting—varies, as do the provisions on the boat, such as food, water and safety equipment, and the weather and sea conditions on the day of travel.
I would welcome clarification from the hon. Member on his particular definition of seaworthiness. I understand the narrative of trying to appear tough on this issue, my grave concern and opposition to the amendment comes from the fact that it would dilute the opportunity to be tough on those criminal gangs.
Chris Murray
It is a pleasure to serve under your chairmanship, Mr Stuart. I will make a couple of points about the amendments to the clause, and the clause overall.
I have always been frustrated that people from both left and right make the same mistake on immigration policy—we forget that immigrants and asylum seekers are people. That means that, just like any group of people, they vary: some are entirely innocent and exploited, and some seek to exploit others and are criminals. We need to make the distinction between those groups.
Amendment 5, tabled by the hon. Member for Perth and Kinross-shire, makes some important points, and my hon. Friend the Member for Clwyd East is right about the passion and compassion that drive the amendment. I absolutely recognise, support and understand that passion and compassion, but we must be clear-eyed about the reality of what is happening in the channel.
Yes, people are in great danger, and they are the most exploited, most vulnerable people, but they are not there by accident. They are not panicking because they have stumbled by accident into the boat. There is a large, extremely organised, extremely well-financed criminal enterprise putting them in that position and it does not care one bit whether they live or die. We need to be able to draw a distinction between the vulnerable people who are in that situation and the people who are putting them there.
Pete Wishart
The hon. Gentleman is absolutely right that we have to make that distinction between those who have organised, orchestrated and profited from such activities and those at the sharp end of it: the asylum seekers and immigrants themselves. We need to be laser-focused on the gangs, the people who put together and design this vile trade, not on the ordinary asylum seekers, whom these criminalisation clauses exclusively focus on.
Chris Murray
I thank the hon. Gentleman for his intervention, but I am afraid I completely disagree with him on what this Bill is doing. Being an asylum seeker is a self-declaration. It is anticipatory. Someone just declares themselves as one; the system later ascertains whether that is correct and whether they are a refugee. He mentioned earlier that the refugee convention does not penalise people for the mechanism by which they enter; he is quite correct, but that is not a blanket immunity from any criminal act committed in the process.
Sarah Bool (South Northamptonshire) (Con)
It is a pleasure to serve under your chairmanship, Mr Stuart. If, as I imagine, the wording of clause 18 will not be changed further, I just wanted to draw attention to the concerns that we will be criminalising those making the crossings and not those who organise the passage. I point to written evidence from the Law Society, which raised particular concerns that are important to consider:
“The Law Society is concerned that parents or guardians could be prosecuted for taking their children on these journeys. The human rights assessment produced by the Government for this Bill states that parents who bring their children on these types of journeys will be excluded from prosecution under this offence in almost all circumstances, but the phrasing”—
this is the most important point—
“does not rule out prosecution in all circumstances. There is a concern that this could result in families being split up.”
The Law Society asks that the Government should either
“clarify if this provision is intended to apply to asylum seekers in some circumstances, or amend it to ensure it does not in practice.”
I ask the Minister to address that point.
Jo White (Bassetlaw) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stuart. I want to reinforce the points made by my hon. Friends the Members for Dagenham and Rainham and for Clwyd East regarding amendment 17, tabled by the hon. Member for Stockton West. I firmly believe that the amendment actually serves to dilute the legislation.
The hon. Member does not consider the fact that many people are coerced into boats in the belief that they will be safe, because there will be lifejackets provided. However, many times those lifejackets do not meet EU or British standards, or children’s lifejackets are provided for every person on the boat—or, when people get on the boat, there are not enough lifejackets. The gangs who are using that to coerce people on to the boats should be prosecuted for that simple act.
The Minister for Border Security and Asylum (Dame Angela Eagle)
It has been a while since the sitting began, and it is easy to overlook that I have not been up on my feet so far. We have had an interesting debate. The amendments before us range from, at one end, the Opposition, whose amendments seek to criminalise everyone who gets in a small boat and presumably cart them directly to prison, through to the other end of the argument, represented with his usual passion by the hon. Member for Perth and Kinross-shire, who feels that, if someone is an asylum seeker, they should be exempt from being judged at all on the behaviour that happens on the boat.
I will deal with some of those points in turn, but I also want to compliment my colleagues who have made their own comments and some very important points in this debate. It is important, as my hon. Friend the Member for Edinburgh East and Musselburgh said, that we are clear-eyed about what is happening in the channel. We can be romantic about it in many ways, as the hon. Member for Perth and Kinross-shire often appear to be, or we can regard all those who come over as criminals and a threat, but the truth is somewhere in between.
My hon. Friend the Member for Bournemouth East made a moving speech about the realities of what can happen in these circumstances; it is easy to forget, when we are sat in a nice warm Committee Room—although it is not always warm, facing as it does on to the river. Imagine ending up in the water in the channel, Mr Stuart; you can last only so long. You could easily have a heart attack in that cold water and not be resuscitated. Clearly, if you are a child, or vulnerable in any other way, then that is likely to happen—and it will happen to you first.
My hon. Friends the Members for Bassetlaw, for Clwyd East and for Dover and Deal made important points about the realities too. I will come on to what the Government are trying to do with this offence and why it is in the Bill, but I will deal with the amendments first. I hope I will be able to answer some of the questions that have been asked during this important debate—[Interruption.] I also hope that my voice is going to last out.
Amendment 15 focuses on the length of the sentence attached to clause 18 and seeks to increase the sentence from six to 14 years where an irregular entrant arrival has caused or created a risk of serious personal injury or death to others during a sea crossing to the UK. Clause 18 introduces a new criminal offence that is to be inserted into section 24 of the Immigration Act 1971. The current sentence for the offence of arriving in breach of a deportation order under section 24(A1) of the Immigration Act is five years.
Because clause 18 will be inserted into section 24 of the Act, the intention of the clause is to ensure that, given the egregious and serious natures of the acts committed under the new offence, the maximum sentencing is increased, albeit remaining in line with the existing sentencing framework in section 24 of the Act. The issues about the length of sentence are all about keeping sentencing in that section of the Immigration Act coherent. Grabbing extra, lengthier sentences out of the air to insert them into the Act can create inconsistency and mess up the structures of sentencing involved in the Act, making it less coherent than it should be. The sentence of five years was reached after discussions with partners about all the sentences and offences in this particular area, and it rightly reflects that coherence.
An increased sentence of six years is considered to be appropriate for the endangerment offence. It furthers the deterrence aim of the policy, but is not so severe as to deter prosecutors from bringing a prosecution in the first instance. That is another area in which the rhetoric of even longer sentences deters prosecutors from bringing charges at all. We have seen that with the facilitation offences, where the introduction of a life sentence has led to fewer prosecutions being pursued; prosecutors think that for a sentence of that length, more obvious evidence has to be accrued, so they charge fewer people. An increased sentence can sometimes have a perverse effect on the system. We think that the sentence in the Bill is in keeping with the Immigration Act and is about right.
Mr Will Forster (Woking) (LD)
I am pleased that the Minister talked about the length of the sentence, which we have not talked about very much in the debate so far. Fourteen years is the maximum sentence for placing explosives with intent to cause bodily injury, and for such other offences as causing death by dangerous driving. To me, 14 years is more applicable in those cases. Does she agree? I do not understand the rationale for 14 years.
Dame Angela Eagle
Yes, and it is not for me to get into the head of the hon. Member for Stockton West. Perhaps he will talk to us about why he picked that particular number. I agree with the hon. Member for—is it Worthing? [Interruption.] The hon. Member for Woking—I knew it began with a W, and my own constituency begins with a W, so we are there or thereabouts in the dictionary.
Similarly, amendment 16 seeks to increase the sentence from five years to 14 years where an irregular migrant or arrival has caused or created a risk of serious personal injury or death to others during a sea crossing to the UK and is entering without the requisite leave to enter, entry clearance or electronic travel authorisation. As with the approach taken to those who arrive in breach of a deportation order, and as discussed in relation to amendment 15, clause 18 will provide an increased sentence compared with the offences under section 24(B1), (D1) and (E1) of the Immigration Act.
Pete Wishart
I am sorry to see that the Minister is still bravely struggling with a cold—the Committee has noticed. A variety of offences are available to the courts to make sure that anybody who endangers people at sea can be prosecuted. There is illegal arrival, there is facilitating the illegal entry of others, and there is what Ibrahima Bah was convicted of—gross negligence manslaughter. These offences are all currently available to the prosecutorial authorities. I do not know why the Minister feels she needs this new offence. It can only be because she has a particular target in mind against whom she wants to apply these rules. Can she confirm that?
Dame Angela Eagle
I will try to give the hon. Gentleman some insight. I was going to come on to this when addressing the clause itself, but it is in the Bill because we have perceived a change in behaviour in some areas.
There has been an increase in physical aggression towards other people, including migrants and third parties. There is a lot more violence on the beaches against French police. There is intimidating and controlling behaviour on the boats. People are preventing others from disembarking or calling for help when the boat gets into difficulty. There are physical acts that result in harm being caused to another person either while boarding a boat or while on a boat. People are being pushed off boats, including in shallow French territorial waters. The pilots sometimes decide to continue on to the UK even when there have been fatalities or serious harm on the boat. We are now seeing a range of behaviours that clause 18 will allow us to address.
I will address amendment 5, but the view of the hon. Member for Perth and Kinross-shire is that no asylum seeker should be charged with this new criminal offence, which would render clause 18 unworkable and pointless, as 95% of people who come across on small boats claim asylum. How one behaved on the boat across will be in the purview of clause 18, whether it is dangling children over the side or forcing women and children to sit in the middle—often the middle of the boats come free and collapse, so the women and children are the first to die. Where women and children are forced to sit in the middle, they sometimes arrive in the UK with horrific burns because of the combination of fuel and seawater, as my hon. Friend the Member for Bournemouth East said.
I simply do not agree with the hon. Member for Perth and Kinross-shire that, just because someone will claim asylum when they get to the UK, none of their behaviour on the way over should have any bearing on what happens when they get here. Clause 18, which creates a new criminal offence under section 24 of the Immigration Act, will not criminalise everyone who makes these crossings. It would be pointless and completely unworkable if we sought to do that, as the Opposition amendments do. It is about addressing, discouraging and deterring the acts that cause or create a risk of serious injury or death to others, which we are now seeing from individuals travelling to the UK by small boats.
There have to be consequences for anyone who further jeopardises the safety and lives of others during these dangerous crossings. There are those who insist on continuing their journey when assistance is at hand, who refuse assistance, and often, when there have been fatalities, try to prevent others from being rescued. Clause 18 addresses specific acts that create or cause a risk of serious injury or death to others during a journey. We heard in oral evidence how these journeys are being made more dangerous by such acts, and clause 18 is a response to the increasing propensity of this kind of behaviour.
There have been shocking and tragic cases of women and children being forced and intimidated into life-threatening positions during journeys that are already dangerous enough, which is exactly the type of offending that clause 18 aims to target. The approach cannot simply be to say that whatever happens on the boat, stays on the boat. The new offence is another tool designed to curb the endangerment of life. It sits alongside other activity against gangs that intentionally place people in danger by selling these crossings as a viable route to the UK. This Government take fatalities and injuries at sea extremely seriously, and we are going further than ever to try to bring an end to them.
Pete Wishart
I thank the Minister for her full response to the amendments before the Committee. I totally agree with her on amendment 17, and I hope the Committee rejects it. It is a ridiculous and unworkable proposition that everybody who comes to our shores should be criminalised almost immediately upon arrival.
A couple of things have been said in this debate that I want to challenge and take head on, including the idea that everything is black and white, that people are either the exploited or the exploiters. Everybody accepts that there is a grey area. I think every member of this Committee believes that those who behave in a reprehensible, appalling and awful way, whether on the small boats or in getting people on to the small boats, should rightly face the full force of the law.
The Minister is right to highlight all those examples of the dangerous behaviour that happens during some of these journeys. None of us would want people to get away with that behaviour, but the Bill does not refer to such activity, and there is nothing in the guidance or the explanatory notes. Nothing in the Bill specifies this type of behaviour. As the Bill progresses, the Minister will have to make sure it mentions such behaviour.
The other challenge with the type of activity the Minister describes is how to get the evidence. This activity is happening in the most chaotic circumstances, on small boats coming across the channel. We know these things are reported, and we know that people are arrested and face the full force of the law, but the Minister still has to convince the Committee that a new offence is needed, and that certain categories of migrant will not be caught up.
Chris Murray
Does the hon. Gentleman accept that, if his amendment 5 were accepted, someone could orchestrate a boat crossing the channel, throw a child off—which this measure is trying to prevent—and then, when they arrive on the shores of the UK, just say, “I am an asylum seeker”? That would be an obstacle to any prosecution.
The only way we could get over that obstacle—even if the person were French—would be for them to go through the entire asylum process. They would be placed in a hotel in one of our constituencies and, given the huge backlog we have, it would be almost two years before we are able to prosecute them.
Pete Wishart
It must be how I am presenting this but, again, I am not being understood. I am sorry that I have not explained the intention clearly enough, but I have no intention of that scenario happening. [Interruption.] Can I say to the hon. Gentleman—and to the Whip, the hon. Member for Inverclyde and Renfrewshire West, who is trying to intervene from a sedentary position—that existing offences are in place to deal with the activity being described. I have cited the example of Ibrahima Bah, who was done for gross negligence manslaughter. Where that happens, of course people should face the full force of the law. And that happens, because we have existing laws in place.
I listened very carefully to the Minister’s description of the new types of activity that she feels clause 18 is necessary to address, but those activities have to be specified and defined. If she moved new clauses to address such activity, I am sure she would get a fair hearing—she would get a fair hearing from me—but, because clause 18 is so broad, other behaviour and activity will inadvertently be drawn into these offences. People who are possibly acting in self-protection, or who are trying to save people but inadvertently put others at risk, will be caught by this clause.
We need to apply common sense to what the Minister is trying to do, and we need to make sure common sense is reflected in the Bill because, at this stage, it is not.
Becky Gittins
I just want to tease out what the hon. Gentleman has said. Does he accept that, if this amendment passed, gang members facilitating crossings on small boats would escape prosecution?
Pete Wishart
Absolutely not. Again, I must be having great difficulty getting through, and I accept that that is my responsibility, but that is not what is intended in the least. A variety of laws deal with the activity that the Minister mentioned. We know that because 244 people were charged in the course of 2023, and since the Labour Government came to power, something like 86 people have been charged with offences. People are being charged and prosecuted for serious offences.
The Minister has identified new dangerous activity, and she is right to do so, but if we want legislation to deal with it, bring that legislation before the House. Do not bring in this broad-sweep legislation, under which natural, normal activity that may be designed to help and protect people could be caught up. The difficulty with this legislation is that it inadvertently draws in people who do not deserve to be. I know it is about targeting the pilots in the boats, but there has to be some recognition of what forces and coerces people into piloting the boats. There needs to be an understanding of their situation and why they are doing that, but the clause fails to take account of any of that.
Chris Murray
I take on board the hon. Gentleman’s point, and I can assure him that no one has higher respect than I do for the organisations that have supplied such evidence. I have been in conversations with them myself. The issue at hand here, however—I know this from having worked in the sector—is that they are not set up to stop the gangs or take through criminal prosecutions. That is not their objective. Their job is purely, and properly, to protect migrants. They will lean towards a broad definition, and that is why I think he has inadvertently fallen into a trap. In excluding everyone from the provisions, we avoid the traffickers, but it is not the job of those organisations to target them.
Pete Wishart
The hon. Gentleman is spot on. The job of those organisations is to be concerned for the welfare and conditions of people who come to our shores, and to ensure that they are supported on their journey through the asylum process. The organisations have identified that the Bill does little to target the gangs that the hon. Gentleman is referring to; in fact, they do little at all. They are all about ordinary asylum seekers. The new criminalisation clauses that we have debated over the past couple of days are all exclusively devoted to the activity of asylum seekers coming here, and none more so than this clause.
I hope that, as the Bill proceeds through its remaining stages—particularly when it goes through the other place, although that greatly concerns me for a number of reasons—we will be able to improve it, and get to a place where it reflects what the Minister said in her fine contribution.
Sarah Bool
I did not hear from the Minister a response on the Law Society’s concern about parents and guardians being criminalised, and I wonder whether I could hear some thoughts on that.
Dame Angela Eagle
In general, it is not expected that parents will be criminalised, but there is not a total ban on that. It will depend on what has happened and what the circumstances were. That will be looked at on a case-by-case basis. It is difficult to be more explicit about that, given that the nature of the offence represents a stricter law that is meant to deter people from making small boat crossings. It is a signal to smugglers and passengers that fatalities and injuries at sea are taken extremely seriously, so there may well be consequences for particular unacceptable behaviour of the sort that I have talked about. I would not want there to be an absolute exclusion, but I would not expect a large cohort of people to fall within the purview of the new offences.
Matt Vickers
I thank Members for their considered contributions. Effective international partnerships can be useful, but I would not want to deny anyone the right to scrutinise a partner on Twitter, particularly one to whom we pay so much money. The previous Government were right to toughen up on sentences for the worst offences. They were right to restrict prisoner release during the pandemic. That put pressure on the prison system, and that that is why the previous Government were also right to undertake the biggest prison building programme since the Victorian era. I realise that the Labour party did not agree, but it was right that the previous Government used the Nationality and Borders Act to increase the penalty for people smugglers to a life sentence.
Tom Hayes
I was going to allow that statement to go by, because lunch is near and I am quite hungry, but I am hungrier still for the truth. Does the hon. Gentleman not accept the validity of independent assessments of our prison system—the system that this Labour Government inherited—as near to collapse? For him to claim otherwise is farcical, and I hope he will withdraw that.
Matt Vickers
I repeat exactly what I said: the previous Government were right to toughen up those sentences and make those who are guilty of some of the worst offences stay longer in prison. They were right not to release people during the pandemic, and therefore they were right to have the biggest prison-building programme since the Victorian era; that is a fact. It was also right that the previous Government used the Nationality and Borders Act to create life sentences for people smugglers. The vile criminals who profit from the peril of others deserve nothing less. That is why it is right to increase the sentence for this offence, as set out in amendments 15 and 16, to deter people from engaging in this awful, vile and inhumane trade. I will press amendments 17, 15 and 16 to a vote—
Matt Vickers
As I said in my opening remarks, that has to be a deterrent. This is a damp squib Bill. If people come to this country illegally—if they break in—there should be real consequences. If they put other people’s lives at risk, there should be real consequences. I think we have proposed the right sentence, and Committee Members can now have their say on it.
Question put, That the amendment be made.
Public Authorities (Fraud, Error and Recovery) Bill (Seventh sitting)
Thursday 6th March 2025
(3 days, 13 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 6 March 2025 - (6 Mar 2025)
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Chair
I remind members to email their speaking notes to hansardnotes@parliament.uk. Members should not imbibe tea or coffee in the room, and electronic devices should be switched to silent.
Clause 56
Procedural rights
Question proposed, That the clause stand part of the Bill.
The Parliamentary Secretary, Cabinet Office (Georgia Gould)
It is a pleasure to continue to serve under your chairmanship, Sir Desmond.
A priority when designing the Bill was that its powers be sufficiently balanced by strong oversight and transparent safeguards to protect the vulnerable and guard against human error. Rightly, a large number of the questions from the Committee have probed that. Clause 56 is a key part of that design. It ensures that certain steps must be taken and assured before a penalty may be issued; these steps cannot be rushed, skipped or subverted. As I have confirmed, the application of these powers will be strictly limited to specifically authorised officers within the Public Sector Fraud Authority, as set out in clause 66. To exercise the powers, these officials will be required to comply with the relevant training and qualifications, as set out in the relevant codes. They will be subject to both internal and external oversight, including scrutiny of training.
Further safeguards are embedded throughout the legislation for civil penalties. These include the right to make representations in clause 56, the ability to request an internal review in clause 57, and the ability to request an appeal to an appropriate court in clause 60. Additional details of the safeguards will be set out in a code of practice published before the first use of the civil penalty powers. I will give some detail of what will be in that code of practice when we discuss the later clauses. Clause 56 is essential because it holds the PSFA and this Government accountable, ensuring that the safeguards are not only explained to the public but maintained and reviewed by independent oversight.
Clause 57 ensures that a penalty decision notice must be issued before a penalty is imposed, and provides an essential safeguard by giving individuals access to a review and sufficient time for it to be carried out. Powers of review will be available only to authorised officers within the PSFA who are appropriately trained. Penalties are a key part of the deterrent message that this Government wish to send by delivering the Bill. Fraud will not be tolerated, but it is not enough to simply recover money lost to fraud and error. A clear message must be sent that fraudulent actions have consequences.
Clause 58 is essential to ensure that the PSFA enforcement unit acts with transparency and is held accountable for its decisions. It is also an essential safeguard for the individuals and businesses that it will deal with, as it provides a right of review and a chance for decisions to be challenged. As part of the process, the penalised person will have the opportunity to request a review of the penalty and state why it should not be imposed; a person may contest the level of the penalty. During review, a penalty will not be imposed, per clause 57(3). If a person is not satisfied with the result of a review, they will have the opportunity to appeal the outcome to an appropriate court, per clause 60. Reviews will be carried out by an authorised officer of higher grade than the authorising officer who made the original penalty decision, as stated in clause 66(3). This is yet another safeguard that ensures a fair review of the penalty.
Mike Wood (Kingswinford and South Staffordshire) (Con)
The clauses outline the steps and safeguards before the Minister may impose a penalty. Getting these provisions right, ensuring that due process is followed, affected individuals and businesses have a right to respond and penalties are not imposed arbitrarily, is crucial.
Clause 56 sets out the procedural rights of a person facing a penalty. It ensures that penalties are not imposed without the affected party first being allowed an opportunity to respond. Subsection (2) requires that a notice of intent be given to any person facing a penalty, inviting them to make representations before a final decision is made. Under subsection (3), the notice of intent must include the amount of the proposed penalty, the reasons for imposing a penalty of that amount, and the means by which representations may be made, as well as the timescale for doing so.
As we are approaching the end of part 1, I know that the Government will be disappointed if I do not have a long list of questions on these provisions for the Minister. A theme from Tuesday’s sessions was the time limit on representations. The Bill states that individuals and businesses must be given a minimum of 28 days to make representations. There is a little more flexibility in the provisions we debated on Tuesday, but do the Government intend to set a maximum limit, whether in the legislation or perhaps the code of practice, on the number of days that would be available for such representations? If not, how will it be ensured that the process does not become excessively prolonged, as the Minister spoke about on Tuesday? As well as causing delay for the public authority seeking to recover funds, it might cause uncertainty for businesses and individuals. We are also interested to hear about guidance that might be issued on when it would be appropriate to vary the 28 days and allow a longer period for representation in order to strike a balance.
On the issue of authorised officers, and assuming that the decisions are being delegated, the Minister has previously referred to the Carltona principle whereby Ministers can delegate decision-making and executive powers to appropriate officials. In the light of the Government’s intention to repeal the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, I am interested to know whether they have assessed the impact that might have on the operation of the Carltona principle in these circumstances. The principle is derived from pre-second world war case law, but it was significantly weakened in the Gerry Adams challenge. It was one of the things the previous Government were seeking to change, as a response to amendments in the House of Lords to re-establish the principle. In the absence of the 2023 Act, will the principle still be legally robust enough to allow the delegation that the Government intend under this Bill?
We assume that the decision on whether to maintain, reduce or cancel a proposed penalty will be made by an authorised officer rather than the Minister for the Cabinet Office, so will the Minister set out the level of seniority of the authorised officers within the PSFA and how that decision was reached? What training will those officers be required to undergo for this specific function, and what steps is the PSFA expected to put in place to ensure consistency in decision making across different cases?
Clause 57 outlines the process for issuing a penalty decision notice once a final decision has been made. Again, the requirements in the clause appear to be sensible and necessary if we are to ensure that individuals and organisations are fully informed of their liability and have an opportunity to challenge decisions that they believe to be incorrect or unfair, so we support the clause standing part of the Bill.
Clause 58 deals with reviews of penalty decisions. I have a few questions about who in the PSFA or Government will conduct the review. Who will ensure that they are properly separate from the individual decision-making process and if the reviews are to be conducted by officials, what will be the level of seniority required?
The clauses set out important procedural safeguards that seem to be appropriate to ensure penalties are not imposed unfairly. If we are given clarification regarding the degree of discretion available, the seniority, and training in decision making and the safeguards that ensure fairness, we will be content for the clauses to stand part of the Bill.
Steve Darling (Torbay) (LD)
It is a pleasure to serve under your chairmanship, Sir Desmond. The Liberal Democrats broadly welcome the proposals in the clauses. Safeguarding people is an essential part of the Bill. I suspect we will go into that in greater depth as we embark on part 2.
Georgia Gould
I would indeed have been disappointed if the shadow Minister had not had lots of detailed questions for me on the operation of the powers. I agree wholeheartedly about the importance of safeguards.
To take the questions in turn, we are confident of the legal robustness of the Carltona principle. It is how Government routinely works, and we are confident that the powers can be exercised by highly trained authorised officers. As the shadow Minister says, 28 days is a minimum. There are no plans at the moment to introduce a maximum, but the intention is for the team to work as quickly as possible to recoup public money. As we have discussed, there might be exceptional circumstances where people need more time, and the authorised officers will be able to provide that time on a case-by-case basis, always bearing in mind the need to return money that is owed because of fraud.
We will talk shortly about the oversight and review process, but we want a separate team outside the PSFA that is answerable to an independent reviewer. It could look at the wide range of cases and ensure there is consistency and that powers are used proportionately. It could report to Parliament, so there would be ongoing scrutiny of the exercise of the powers. It is important to remember what will have taken place by the time we get to a penalty. In order to establish the recovery of a debt, if the individual did not agree, the matter will have gone to court. An authorised officer will have reviewed the case and submitted to a senior member of the team the rationale for a penalty to be imposed.
There are a number of routes of review. The first is a review by another authorised officer of a higher grade in the PSFA team. If the individual is not satisfied with that, they will, as the shadow Minister set out, have the ability to apply to a court or a tribunal to have that reviewed. There are robust safeguards built in within the PSFA and outside the PSFA.
Question put and agreed to.
Clause 56 accordingly ordered to stand part of the Bill.
Clauses 57 to 59 ordered to stand part of the Bill.
Clause 60
Appeals
Georgia Gould
This legislation is underpinned by robust oversight and layers of protection for individuals and businesses. Safeguards have been put in place to ensure that there are sufficient opportunities for individuals and businesses to make representations, request internal reviews of decisions and appeal to the relevant courts. Every opportunity will be provided to ensure that no one is penalised unfairly or in error.
Clause 60 is an important final safeguard that ensures that everyone has the right to appeal to an independent court or tribunal should they disagree with the PSFA’s final determination. Per clause 14(b), once an appeal is made, recovery measures may not be exercised until after the appeal is heard and completed.
The clause includes a delegated power that allows the Minister, by regulation, to make further provisions about appeals. The regulations are subject to the negative procedure. Crucially, the Minister is not given the power to remove the right of appeal; instead, the Minister may amend the clause simply to make the appeal process more efficient—for example, by allowing an appeal against a penalty or debt to be heard at the same time.
Mike Wood
We support the provision that a person can appeal against a penalty to the appropriate court. This is an appropriate level of oversight for these civil penalties, and it is appropriate that the court can uphold, revoke or amend the penalty notice and make the final decision on whether an individual should be penalised for fraud. Obviously the Minister’s judgment that the behaviour was fraudulent and caused the loss to the public authority will form a part of that decision. It is clearly right that there is a role for the legal system in the appeal process. It is also sensible to have the decision by the appropriate court marked as the final decision, to prevent ongoing appeals that could frustrate the proper recovery of funds that are properly payable.
The clause also allows the Minister to make further regulation via the negative procedure regarding appeals against a penalty notice. Will she explain why the negative procedure was judged appropriate in these circumstances, rather than one that would allow Parliament automatically to have its say on any proposed regulations? What further provisions does she envisage being introduced at a later date? I understand that part of the purpose of the clause is to accommodate unforeseeable changes in circumstances, so it is not always possible to see the detail, but some clarity on the kind of area or circumstances in which regulations may be needed would help the Committee to form a judgment on the clause. If no further provisions are expected and there is no reason to imagine that they may be necessary, that clearly renders that part redundant.
That is a rather shorter list of questions to this clause—I am drawing to a close. I would appreciate if the Minister could provide that clarification.
Georgia Gould
I am pleased to provide that clarification. As I said, the critical point is that this provision is very limited in its scope, and the right to appeal set out in the Bill cannot be removed. In my initial remarks, I gave an example of making the appeal process more efficient, such as by allowing an appeal against a penalty or debt to be heard at the same time. The provision is limited to how appeals are operationalised, and does not affect the right to have an appeal.
Question put and agreed to.
Clause 60 accordingly ordered to stand part of the Bill.
Clause 61 ordered to stand part of the Bill.
Clause 62
Code of practice
Question proposed, That the clause stand part of the Bill.
Georgia Gould
The clause is an important part of the Bill because the code of practice will set out how and why civil penalties will be calculated and imposed. This will help to ensure that those powers are used transparently and reasonably. I made a commitment as we went through the previous clauses to go into detail about what will be in the code of practice, which I plan to do now.
The code of practice will set clear guidance and standards for authorised officers when using the powers. It will also help the general public to understand how those powers are exercised. To encourage co-operation with our investigations, allowing the PSFA to recover more from fraudsters in the most efficient way possible, it may be appropriate to offer discounted penalties to those who co-operate.
We will consult on the code of practice and publish it ahead of the first use of the civil penalty powers to ensure sufficient time for Members to familiarise themselves with the measures. In the spirit of being helpful to the Committee, I want to give as much detail as I can on what the code of practice will contain so that the House has the opportunity to understand it, as well as the other place in due course. This will of course be subject to change if either House amends the Bill.
The code of practice will set out the statutory obligation under which it is published, who the intended audience is, and how it should be used. It will set out the rights of anyone who is penalised, which will include appointing legal advisers or other representatives, and how to access legal aid, if entitled to do so. It will set out how the civil penalty system will be overseen by senior officials and set out the roles of the oversight function and the “independent person” under clauses 64 and 65.
The code will explain the scope of the power and how individuals, companies and other organisations will be treated. It will also set out the various kinds of penalties in the Bill, and that penalties may be applied to fraud that occurred before the Bill is enacted. It will cover the training that authorised officers will have undertaken before being authorised to issue civil penalties and the standards used by the Government’s counter-fraud profession.
The code will inform the public about the investigative process in enough detail to give a fair understanding of how cases will be proven to the civil standard, without giving so much information that it would enable a fraudster to game the system. This will include how cases are referred to the PSFA, how authorised officers will be trained to assess individual vulnerability and how that will be assessed during the initial case assessment.
The code will explain how the information powers in the Bill work, how they will be used, the safeguards for their use and how reviews may be requested. It will include how authorised officers will establish a claim, including in court, and how authorised officers will assess whether a case meets the civil burden of proof required to issue a fraud penalty. It will also test that assessment with others, including subject matter experts, specialists and legal advisers. It will explain the decision-making process, including who will make the decision about penalty calculation and imposition.
The code will also set out the circumstances in which the PSFA will not apply a penalty, such as where there has been an error rather than fraud. Importantly, it will also make it clear that civil penalties will not be applied as an alternative to criminal prosecution but as a separate response to fraud.
The code will set out how fraud penalty levels will be calculated. Penalties will be bespoke to the case they relate to, based on the individual facts. Penalties imposed will be reasonable and proportionate, and the code will set out what that means in practice. Penalty levels will be decided by reference to a variety of factors, based on the circumstances of each case. Those include, but are not limited to: the financial loss to the public authority; the time period and frequency of the offence, whether it is a one-off or a sustained fraud; the harm done to a public authority; the impact of the offence; the offender’s behaviour; whether the offender has acted alone or as part of a group; whether a position of trust held by those committing fraud has been abused.
Separately, the code will set out how the penalties in the Bill for non-compliance will work, along with information powers and debt recovery powers, and the safeguards that will be in place. It will set out the criteria by which the PSFA may offer to discount a penalty for fully co-operating and disclosing fraud. It is beneficial to the Government to seek early resolution to investigation and enforcement action, and that kind of discount is used elsewhere to incentivise that. However, the code will also explain that there can be no discount without full co-operation.
The code will set out the practical steps of issuing a penalty in accordance with the clauses in the Bill. That will include the issuing of notices of intent; how a person can access their right to make representations on any relevant matters; how penalty decision notices will be issued; and how to access the rights of internal review and of appeal to the tribunals. On that last point, the code will also help a person to understand what a tribunal is and how to appeal. It will not replicate the existing published guidance on the tribunals, which it will instead signpost people to.
The code will set out when a penalty becomes payable, how to pay it and what will happen if it is not paid. That will include setting out how the debt recovery powers in the Bill will work, if their use is required, and other potential routes of debt recovery action. Finally, the code will make it clear how the PSFA will process, hold and share data, as set out in the Bill and with reference to the Data Protection Act 2018.
The content of the code of practice, as I have set out, will give anyone affected by these powers a clear understanding of what will happen and why, their rights and responsibilities, and how the PSFA will act throughout the process. Having explained that, I commend clause 62 to the Committee.
Mike Wood
I thank the Minister for that explanation. Obviously, it is helpful for us to have what are, essentially, the chapter headings of the code of practice—the areas that it will cover. That clearly provides some degree of transparency, but it is no substitution for the detail of what will actually appear within those chapters.
We heard from a range of witnesses last week who, in response to many of our questions, were unable to say whether the powers and provisions in the Bill are appropriate and proportionate because of the absence of detail about the code of practice. It would be helpful and courteous to this House, therefore, if as much detail as possible about what will appear—the actual provisions for how the code of practice will operate, rather than just the chapter headings—could be made available at an early enough stage for it to be considered during the Bill’s passage through this House.
Can the Minister give more information about the input that will go into deciding what the details are within the code of practice? Which stakeholders does she expect will be engaged with? Are there any parallel equivalent codes of practice in other areas that might be expected to be a model for this code, or are we effectively starting with a blank sheet?
Again, although the Minister’s explanation is extremely welcome, we continue to be disappointed that the actual detail is currently scheduled to be made available only for Members of the House of Lords to consider before legislating, rather than elected Members of Parliament. We appreciate the recognition of the importance of transparency, which we are obviously seeking to maintain throughout the Bill, but we hope that the Government will accelerate their plans to provide more information for Members of Parliament so that informed decisions can be made about this important legislation.
Siân Berry (Brighton Pavilion) (Green)
It is a pleasure to serve under your chairmanship again, Sir Desmond. I want to reiterate the points made by the Opposition spokesperson, the hon. Member for Kingswinford and South Staffordshire. It is not good enough to be able to refer only to the official record of the long list that the Minister just read out of what is likely to appear in the code of practice. At this stage of the legislation, we ought to be scrutinising at least a draft.
The clause does not include any consultation on a draft code of practice and there are no scrutiny safeguards built into the legislation, so it is wrong to not be looking at the details. In previous debates, I have set out my concerns that although there have been reassurances that this part of the Bill is about major fraud, and that it excludes the Department for Work and Pensions, it is easy to envisage that there may be a scheme of fraud against other Departments that involves defrauding grants that are available to support people claiming certain benefits. That might bring people who are poorer and more vulnerable into a scheme where, according to previous clauses, these penalties may be applied. We need to look at the code of practice in draft form at this stage of the legislation or as soon as possible.
Steve Darling
Legislation that is rushed is often legislation that is dangerous, and I fear that that is where we are today. The hon. Member for Kingswinford and South Staffordshire was very polite in putting his challenges to the Minister, but I would like to be a little more robust and say that I believe it is extremely unreasonable that we do not have the code before us. “The devil is in the detail” is a hackneyed phrase, but that is the fact of the matter. I say to the Minister that it would be extremely helpful if the code could be published before the legislation passes throughout Parliament, so that there is at least the opportunity to scrutinise it at a later date. I look forward to receiving a satisfactory response from her.
Georgia Gould
I am grateful for those questions. As I set out, the code of practice provides additional guidance and operational detail, but the important thing is that the key safeguards we have discussed are covered in a great deal of detail in the Bill. We have gone through the right to appeal and the level of the authorised officer who will be looking at every part of the process, whether that is the initial decision or the review. We have discussed the timeframes, all the appeal routes that are built into the legislation, and the oversight. The key safeguards to the operationalisation of these powers are in the Bill in a great deal of detail.
It is right that I went through the kind of operational detail that the code of practice will cover. To hopefully offer some reassurance on the questions of consultation and precedent, in developing the code of practice, we are building on a great deal of precedent within Government—from the DWP, the Home Office and His Majesty’s Revenue and Customs—on the use of these powers and what has worked well. There is already a huge amount of consultation, at ministerial and official level, on developing the code. There will be a public consultation on it as well, and, as we have already committed, we will bring forward the code of practice within the parliamentary process.
Question put and agreed to.
Clause 62 accordingly ordered to stand part of the Bill.
Clause 63 ordered to stand part of the Bill.
Clause 64
Independent review
Steve Darling
I beg to move amendment 31, in clause 64, page 34, line 23, at end insert—
“(1A) Prior to appointing an independent person, the Minister must consult the relevant committee of the House of Commons.
(1B) For the purposes of subsection (1A), ‘the relevant committee’ means a committee determined by the Speaker of the House of Commons.”
This amendment would ensure Parliamentary oversight of the appointment of the “Independent person”.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clause 65 stand part.
Steve Darling
The amendment is about ensuring transparency around the Bill. I have already explored transparency, and other hon. Members have talked about reasonableness. The Bill gives the Minister the ability to appoint their own independent person. Although I am sure that those in power for the foreseeable future are very reasonable individuals who will genuinely appoint independent persons, we can read in our newspapers about people not very far away who are effectively appointing yes-people around them, so I fear that we need to future-proof the Bill to ensure that the people appointed are genuinely independent.
Constitutions elsewhere in the world have checks and balances heavily built into governance. The amendment, which proposes to delegate to the Speaker the decision about how the appropriate Committee of Parliament can be involved and consulted about the appointment of the independent individual, would be a good way of ensuring genuine independence and reasonableness. I hope that the Government seriously consider it; we will be pressing it to a vote.
Georgia Gould
I will start by talking about clauses 64 and 65, and then I will address the amendment.
It is absolutely necessary that there is appropriate independent oversight to ensure the powers in the Bill are used appropriately, and we welcome debate on that. That is why we have introduced the power to appoint an independent person, which might be one person—an independent reviewer—or an organisation such as His Majesty’s inspectorate of constabulary and fire and rescue services. They will augment the existing oversight structures laid out elsewhere in the Bill, such as the role of the Independent Office for Police Conduct, set out in clause 9, which will investigate the most serious complaints into the PSFA’s use of entry, search and seizure powers.
Clause 64 mandates that an independent person appointed by the Minister undertakes reviews of the use of powers in the Bill. The independent reviewer will conduct reviews to consider whether the exercise of the powers is in keeping with the legislation, codes of practice and relevant guidance. They will produce a report of their findings for the Minister, including any recommendations they deem appropriate. The Minister is then required to publish the report and lay it before Parliament. That ensures there is both public and parliamentary accountability in the role of the independent person outlined in the Bill.
As we state in the explanatory notes, we intend to make the duty imposed by the clause in two ways. First, the Government will commission His Majesty’s inspectorate of constabulary and fire and rescue services to inspect the PSFA’s use of the new investigative powers, which can include the end-to-end investigative process and decision making. HMICFRS has a long-standing history, going back to 1856, and it independently assesses and reports on the performance of police and fire and rescue services in the UK, as well as other public bodies with investigatory powers, such as His Majesty’s Revenue and Customs. HMICFRS reports are already made available publicly, and are an efficient way to hold bodies accountable for their investigative practices.
Secondly, the Government are creating a new position for an independent reviewer to whom the PSFA’s oversight team will report. The independent reviewer will assess how the PSFA exercises the powers given to it in the Bill. The independent reviewer will carry out reviews and report on whether the use of the powers is in keeping with the legislation, codes of practice and relevant guidance, as well as considering areas where HMICFRS or other oversight bodies have not already reported. The independent reviewer could, for instance, consider live case reviews or conduct supplementary reviews between those undertaken by other bodies, or look specifically at how the PSFA has taken forward recommendations from past reviews. The independent chair will have discretion in determining where to focus their resources.
We do not believe it is necessary to legislate in the manner proposed by the amendment to ensure parliamentary scrutiny. Parliament will scrutinise the independent person’s report, which the Minister is obliged to lay in Parliament. There is also an established process for agreeing posts that should be subject to pre-appointment scrutiny by Select Committees without the need for legislative provision. That process is to reach agreement on posts suitable for pre-appointment scrutiny between my Department and the Chair of the relevant Select Committee. We will be following that process for the appointment of the independent chair. We hope that offers assurance to the hon. Member for Torbay. The appointment of the independent reviewer will also fully comply with the governance code on public appointments which is overseen by the Commissioner of Public Appointments.
Mike Wood
Clause 64 sets out that the independent person has responsibilities to prepare and submit a report on the review. We welcome that element of transparency, but are conscious that we need to balance those publications against the privacy of individuals. It is covered within the legislation, but could the Minister further detail the measures that are being taken to ensure that the independent person’s reviews do protect the privacy of individuals involved, especially where there may not have been a legal process in which someone has been found guilty of an offence?
What sort of person is considered an independent person for these purposes? Is the provision intended to create a team of civil servants in the Department who do these reviews, or will it be an individual? What oversight will there be of the independent reviewers, and what resources will they have? Will they have any other responsibilities beyond the report that they produce at the end of the period that the Minister sets out?
Clause 65 allows the Minister to give direction
“as to the period to be covered”
by the review, and provides that the Minister
“may disclose information to the independent person, or to a person acting on behalf of the independent person”.
Even if the Minister is only able to set timeframes for reviews, I would still like clarity as to how independent that person is intended to be from the PSFA, the Cabinet Office and the Minister. We understand why information will need to be shared between the Minister and the independent person if they are to carry out that function, but what protections are in place to maintain privacy and protect against the sharing of unnecessary personal information that goes beyond what the independent person will require?
We have some sympathy for amendment 31, tabled by the Liberal Democrats. There is clearly a need to ensure a proper and open appointment process, as choosing the right person will shape the effectiveness of many of the review mechanisms. It is therefore vital that that decision is right. The involvement of Parliament does seem to be one way of achieving that oversight, in the absence of any better proposal in the legislation. While we recognise that this role may be rather different from the others that are set out in annex D of the Cabinet Office guidance on pre-appointment scrutiny, we would be more comfortable knowing that there is going to be that scrutiny rather than relying, at some point after the legislation is passed, on conversations between whoever happens to be in the Cabinet Office at the time or whoever happens to be Chairing whichever Committee the Speaker feels is most appropriate to be conducting any such hearings.
Georgia Gould
Let me address those questions. The first thing to say on personal or sensitive information is that the teams will of course remain subject to data protection legislation and fulfil all their obligations under the law. Only information that is pertinent and necessary to the review or inspection process will be shared with external bodies, and that will be done in accordance with information handling rules.
The team in the Cabinet Office will be a small, separate team that does not undertake day-to-day investigations; the team will be created to exercise the reviewing powers in the Bill. Its members will take direction from, and report to, the independent chair. They are intended to carry out the day-to-day oversight work as well as to support the functioning of the independent chair, both administratively and in conducting their formal reviews. A similar approach is taken by other independent persons who have a duty to conduct independent reviews or monitoring, and who require support from a Department —for instance, the independent Prevent commissioner for the Home Office. There is provision within the Bill for the PSFA to become a statutory body that will further separate out these functions. I reiterate the point that I made in response to the amendment: we do expect, as is normal process, that there will be a parliamentary role in the appointment of the chair, but we will continue to stay open to all suggestions as the Bill progresses.
Question put, That the amendment be made.
Georgia Gould
The powers in the Bill are conferred on the Minister, but they will be exercised by officials specifically authorised by the Minister and termed “authorised officers”. The clause is an essential element of the legislation. It sets out the decisions that, if not made by the Minister personally, may be undertaken by an authorised officer only: deciding to give an information notice; deciding to give a recovery notice; deciding to make or vary a direct deduction order; deciding to make or vary a deduction from earnings; deciding to give a notice of intent to impose a civil penalty; and imposing a civil penalty.
Furthermore, the clause details some fundamental safeguards on the use of the powers. First, to be appointed as an authorised officer, the individual must be employed in the civil service within the Cabinet Office. That is to ensure strict control over who may use the powers. The clause also defines who may conduct internal reviews, a protection offered widely in the Bill. Any internal reviews must be undertaken by an authorised officer at least one grade senior to the officer involved in the initial decision, or by the Minister. That ensures that officers cannot review their own decisions when challenged for an internal review.
Authorised officers form the backbone of the Government’s approach to taking the powers. The officers will need to complete a rigorous bespoke training programme, which will cover all aspects of investigative practice, including the relevant powers under the Police and Criminal Evidence Act 1984 for authorised investigators. That will be to the same standard as for other public bodies using the same powers. Only after the training conditions have been met will an individual be put forward to the Minister for authorisation to act as an authorised officer and then may use the powers. Their use of the powers must follow strict processes, guidance and codes of practice. They will be subject to internal and external independent oversight of their use of the powers.
The clause is essential, as it provides a statutory gateway for PSFA officials to use the powers under the Bill. Without the clause, the Government’s intention to improve counter-fraud enforcement would either be impractical, or the powers would be given to more individuals than is absolutely required. I commend the clause to the Committee.
Mike Wood
As the Minister says, the clause sets out those decisions that can be taken by an individual authorised by the Minister on their behalf. It specifies that the authorised officer must be a civil servant in her Department. Where there is a review, it must be taken by an authorised officer of a higher grade than the one who took the original decision. As we said when debating earlier clauses, the level of the original officer seems to be set at a rather lower level than in the equivalent decision-making processes in the police and other similar organisations. The measures set out in the clause appear to be sensible, but we have one or two questions about their practical aspects.
In particular, how many of the decisions referred to in the clause does the Minister expect an officer to be likely to make on a weekly basis? When we were debating civil penalty notices, the Minister suggested that it might only be a few a year. This clause covers a rather wider range of notices, so some idea of the workload to be expected of authorised officers will help us to form a better picture of the detail of what we expect authorised officers to be considering. Similarly, does the Minister have any expectation at this stage of how many authorised officers across the different grades will be fulfilling these functions?
Georgia Gould
I thank the hon. Gentleman for those questions. Critically, we have been clear that the team will be small. However, as I have said, if the practical use of these powers goes well—we expect it to, because they are widely used in government—there is the opportunity to grow the team. Importantly, these will be highly trained officers who are specialists in this work. They will have that breadth of experience. In the first instance, we expect around 40 cases a year, but as I said, that is subject to change as time goes on.
The team will be higher executive officers or above in the PSFA. Authorised investigators must also be higher executive officers or above. That means that they will receive further training on PACE powers. Where PACE stipulates that a decision must be made by an officer with a rank of inspector or above, schedule 1 states that it will be taken by an authorised investigator of senior executive officer grade or above. That is proportionate. These are highly trained officers. We specifically ask that the powers not be given out widely, but to a group of people who will have a huge amount of training and oversight to be able to exercise them proportionately, and in a way that recovers fraud but also safeguards those being investigated.
Question put and agreed to.
Clause 66 accordingly ordered to stand part of the Bill.
Clause 67
Disclosure of information etc: interaction with external constraints
Georgia Gould
I beg to move amendment 3, in clause 67, page 36, line 10, leave out “disclosure, obtaining or use” and insert “processing”.
This amendment clarifies that clause 67(3) applies in relation to all processing of information and makes it consistent with clause 67(1) and (2)).
Georgia Gould
The clause is essential in protecting specific information, preventing potential harm to individuals and upholding ethical standards in situations where unauthorised sharing could cause damage. The clause ensures that the powers adhere to current data protection legislation by safeguarding data from misuse, damage and unauthorised access. It also ensures that a person’s legal professional privilege rights are protected. The clause safeguards an individual’s rights and prevents them from being forced to provide information that could incriminate them.
Amendment 3 is necessary to clarify that this power applies to all processing of information, and to provide consistency with clauses 67(1) and (2). It would replace “disclosure, obtaining or use” of information with “processing”. It would create no additional effect and ensures clear comprehension that clause 67(3) applies in relation to all processing of information.
Mike Wood
The clause sets out how the provisions relate to data protection legislation. It is clearly an important provision to reinforce the data protection framework, given the number of concerns raised, particularly by Opposition Members, about the protections for individual privacy. The clause sets out some protection, albeit at a baseline of the existing legal provisions, to prevent breaches of any obligation of confidence owed by the people making disclosure, or of other restrictions including legal privilege. It seems eminently sensible, but will the Minister detail further the oversight mechanisms that will ensure that the safeguards are followed? What processes and avenues are available if someone believes that the requirements set out in the clause have not been followed? How should that be pursued?
As the Minister said, Government amendment 3 is a technical amendment. We have no objection to it.
Georgia Gould
As I set out previously, the PSFA will collect personal data necessary only for the relevant purposes and will ensure that it is not excessive. Any data not relevant to the stated purposes will be erased in line with the data retention policy, which specifies that data connected to a suspected fraud is held for up to five years following resolution. Data that is not connected is held for up to two years. The use of the powers will be governed by the Data Protection Act 2018 and other data protection legislation.
Amendment 3 agreed to.
Clause 67, as amended, ordered to stand part of the Bill.
Clause 68
Crown etc application
Question proposed, That the clause stand part of the Bill.
Georgia Gould
Clause 68 sets out how the powers in part 1 of the Bill variously apply or do not apply to the Crown, to Parliament and to the King and his estates, and in circumstances of grounds of national security. The clause sets important boundaries on the scope of part 1. As such, it is essential that it stands part of the Bill.
The clause ensures that the Crown is bound by specific powers and provisions in the Bill. It applies in relation to premises used or held on behalf of the Crown —for example, a building owned by a Government Department—in the same way as any other premises. For instance, an authorised investigator could, if necessary, apply to a court for a warrant to enter, search and seize evidence from Crown premises. However, it does not bind the Crown in respect of some powers, specifically those in clauses 16 to 37, relating to recovery orders and recovery from bank accounts, and chapter 5, relating to civil penalties. If it did, the effect would be the Crown recovering money from itself or imposing a penalty on itself that it would pay to itself, simply moving money within its own accounts.
Subsection (4) creates a power for the Minister to certify that it appears appropriate in the interests of national security that the powers of entry conferred by this part should not be exercised on Crown premises specified in the certificate. Authorised investigators could not seek a warrant to enter those premises to search for evidence. This carve-out exists because there are certain Crown premises where searching may compromise national security. It is important that this is respected. In that event, the PSFA would discuss with the relevant Department or agency what alternative approach may be possible.
Finally, the clause states that the power of entry conferred by this part cannot be exercised on His Majesty’s private estates or premises occupied for the purposes of either House of Parliament. The King’s private estates are those held by His Majesty as a private person. This does not mean the Crown Estate—the sovereign’s public estates, which are managed by the Crown Estate commissioners on behalf of the Crown. In the incredibly unlikely event that evidence suggested that it was necessary to search the King’s private estates or either House of Parliament, the PSFA would request to be invited by the appropriate authority, which would be the Speaker or the Lord Speaker in the case of this House and the other place, respecting the privileges of Parliament.
Clause 70 is the interpretation clause, which sets out the meaning of terms used in part 1. I do not propose to run through the whole list of terms. Many of them are straightforward and refer back to previous clauses we have debated, but some are important to understand the scope of this part or are used in a novel way. I will say a few words about them so that the Committee can understand them in the correct context.
The first term is “authorised officer”, which we covered in clause 66. In this part, authorised officer has the meaning given in clause 66, which as we have already seen says that they must be employed in the civil service in the Minister’s Department. This means that other types of public sector workers, such as consultants or contractors, cannot be authorised officers, which is a safeguard on the use of the powers.
The clause defines “fraud” as including
“the offences in sections 1 and 11 of the Fraud Act 2006…and…the offence at common law of conspiracy to defraud.”
The Committee will recall that we discussed this in the debate on clauses 1 and 2, and I can repeat the assurances that I gave then. The definition sets the scope of fraud in relation to the core functions of a Minister in clause 1, and it covers the three main fraud offences: fraud by false representation, fraud by failing to disclose information and fraud by abuse of position. It also covers the common-law offence of conspiracy, which requires that two or more individuals dishonestly conspire to commit a fraud against a victim. Together, these give the scope needed to tackle the key forms of public sector fraud.
The clause defines “public authority” as
“a person with functions of a public nature so far as acting in the exercise of those functions”.
This sets out the scope of the Departments, bodies and agencies that the PSFA would be able to work with and on behalf of. The definition is deliberately wide to enable the PSFA to tackle public sector fraud wherever it may arise. It will allow the use of powers to investigate fraud against all central Government Departments and agencies—except HMRC and the DWP, because they already have existing powers—as well as local government and any arm’s length delivery mechanisms that deliver functions of a public nature.
The clause defines “suspected fraud” as
“conduct which the Minister has reasonable grounds to suspect may constitute fraud”.
We discussed this definition in the debate on clause 3. Reasonable grounds to suspect is an objective test meaning a belief based on specific evidence that a reasonable person would hold. It is not just based on the investigator’s own subjective opinion. It is a reasonable test that asks, “Would an ordinary, reasonable person”—like you or me, Sir Desmond—“being in possession of the same facts as the investigator, agree that it was reasonable to suspect that fraud had occurred?” This is a common standard to initiate an investigation.
Finally, beyond the definitions, the clause clarifies references to
“giving a notice or other document”
and sets out how court proceedings are considered to be finally determined. The clause is essential to ensure the correct understanding and interpretation of key terms used throughout part 1 of the Bill.
Clause 71 states that all regulations under this part should be made using statutory instruments. This ensures a structured approach to the regulatory framework. The clause allows for the creation of different types of provisions, such as consequential, supplementary, incidental, transitional or saving measures. This flexibility helps to adapt regulations to various circumstances.
The affirmative procedure requires that the regulations be approved by both Houses of Parliament, which ensures that there is oversight and accountability. The negative procedure allows regulations to be implemented promptly, but they can still be annulled by either House of Parliament if necessary. The option to convert regulations from the negative to the affirmative procedure ensures flexibility in response to the significance of particular regulatory provisions.
Clause 71 is essential for establishing a coherent and responsive regulatory framework in the legislation. By mandating the use of statutory instruments, it promotes a structured process that enhances accountability and keeps the regulatory system transparent.
Mike Wood
We fully support the measures in clause 68 on Crown premises and the Houses of Parliament—they seem perfectly sensible. As the Minister said, clause 70 specifies a whole string of definitions. Given the time, Members may be relieved to know that I do not have a specific response for each of them; there is very little in the definitions to quibble with.
Clause 71 sets out the regulations under this part. The Minister drew attention to subsection (5), which allows for the regulations specified in the Bill to be subject to either the negative or affirmative procedure. As we said earlier in Committee, many of the cases that have been outlined will be require regulations that have potentially far-reaching consequences, both for individuals and organisations. Such consequences would strongly justify the active participation of Parliament, rather than simply relying on the negative resolution, which lacks any guarantee of a debate on an attempt to pray against.
Regulations can be very difficult for Parliament to object to. We encourage the use of the affirmative procedure and hope the Government will detail their intentions on when it will be used for provisions that would otherwise be subject to the negative procedure. Beyond that, we have no objections to the clauses.
Georgia Gould
When I previously went through the different regulatory areas, I also went through which would be subject to the negative and affirmative procedures. I absolutely hear the point; the critical point for me is that the key provisions sit in the Bill. We do not expect changes made by regulation to change the key areas of oversight and the safeguards but, as the shadow Minister says, the provision for changes is there if necessary.
Question put and agreed to.
Clause 68 accordingly ordered to stand part of the Bill.
Clause 69
The Public Sector Fraud Authority
Question proposed, That the clause stand part of the Bill.
Georgia Gould
The clause creates potential for the Public Sector Fraud Authority to be established as an arm’s length statutory body, as defined in schedule 2. It contains provision for the establishment, constitution and operational framework of a new statutory body called the Public Sector Fraud Authority. It enables the transfer of the functions conferred on the Minister by the Bill to the new PSFA, and other practicalities.
The policy intention is not to commence the provisions for the independent PSFA immediately, but at a later date once a review of the effectiveness of the use of the powers has been undertaken. Providing the ability to establish the PSFA as a statutory body allows for future flexibility in how the Government conduct their counter-fraud activities. However, the decision to establish the PSFA as a new arm’s length body should not be taken lightly, nor should any decision to create a new statutory body. The Government have assessed the case for doing so immediately and decided that it would be disproportionate at this time to do so, but that will be kept under review.
The PSFA is running a pilot enforcement function. There are a relatively small number of staff and cases, so we judge that turning the PSFA’s limited enforcement function into an arm’s length body would be disproportionate at this time, given the significant cost and administrative burden involved in the short term. The Government intend to focus instead on ensuring that the powers conveyed in the Bill are bedded in effectively and the oversight is strong, so that the PSFA’s valuable work can benefit immediately from the additional investigative tools and debt recovery powers the Bill enables.
The Government will review the position on the PSFA as a statutory body once a suitable amount of time has passed to fully understand the required scope and scale of such a body. Schedule 2 ensures that, at the appropriate juncture, the Government will have the tools needed to create that body. It provides precise detail on constitution, make-up and remuneration of a board. It enables the PSFA to appoint staff. Remuneration, pensions and other payments shall be determined subject to the approval of the Minister.
Furthermore, the schedule imparts a duty on the PSFA to exercise its functions effectively, efficiently and economically. It allows for the PSFA to authorise a member of the PSFA, their staff authorised for that purpose, or a committee or sub-committee to exercise its functions. The independent PSFA must prepare a report on the exercise of its functions for the financial year, to be sent to the Minister. The Minister must lay the reports before Parliament and publish them. The Minister may create appropriate transfer schemes for assets and liabilities to enable the independent PSFA to exercise its functions. The schedule also provides a regulation-making power to transfer the powers conferred by the Bill to the new body.
The schedule allows the Minister to amend part 1 of the Bill and other existing enactments amended by part 1. This is to ensure that part 1 of what will be the Act is fit for purpose when the PSFA is established as a statutory body. The Minister may make regulations that enable the Minister to give the PSFA general or specific directions regarding the exercise of its functions. This would allow the Minister to guide the PSFA’s strategic priorities to align with Government priorities, or to direct the PSFA’s future structural changes, for example.
Mike Wood
The clause contains provisions on setting up the Public Sector Fraud Authority on a statutory basis. As I said at the beginning of Committee stage, we support the Government’s work to strengthen the PSFA’s role. The form in which it has been operating since it was established under the previous Government offers an opportunity to see how its functions can be exercised more effectively to recover a greater amount of public money that has been lost either to fraud or to error.
Although we have a range of concerns, which we have discussed, about the exercise of some of the functions and, in particular, about the oversight of some of them, we think the decision to have a Public Sector Fraud Authority is the right one, and agree that there may be future circumstances in which those functions could be performed more effectively were the authority placed on a statutory basis, so we do not oppose schedule 2.
As we have reached the end of part 1 of the Bill, and so probably the end my exchanges with the Minister, I thank her for the answers she has given. We will seek to follow up on some of those answers during the passage of the Bill, but for now we are happy for clause 69 and schedule 2 to be part of the Bill.
Siân Berry
In general, I very much support the move to make the PSFA an independent body, and the constitution in schedule 2 seems like a good start. However, looking through it I cannot see anywhere how the people appointed as the chair and executive of the PSFA will be subject to a code of conduct; to rules on transparency and registering interests; to requirements relating to compliance with the Nolan principles; and to the oversight of the Advisory Committee on Business Appointments relating to subsequent work after they leave the PSFA. The Minister, who is currently named in the Bill, is subject to all those requirements.
There is clear potential for conflicts of interests in the various roles, so it is important that they are put under that regime. Will the Minister be clear about how that will come about and whether that could be added to the constitution if it is not already there?
Georgia Gould
I echo the shadow Minister and thank him for his constructive line of questioning. It has been helpful to look into this part of the Bill in such detail. As he set out, I hope we will continue to have conversations about a number of areas, not least some of the commitments I made to look at the provision on 28 days in parts of the Bill. I appreciate the support for the provisions in this area.
On the process of establishing a statutory body, there is Cabinet Office guidance on the establishment of a public body that looks at a whole range of issues, and protections in the ministerial code require Ministers to maintain high standards of behaviour and to behave in a way that upholds the highest standards of propriety.
Question put and agreed to.
Clause 69 accordingly ordered to stand part of the Bill.
Schedule 2 agreed to.
Clauses 70 and 71 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Gerald Jones.)
Public Authorities (Fraud, Error and Recovery) Bill (Eighth sitting)
Thursday 6th March 2025
(3 days, 13 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 6 March 2025 - (6 Mar 2025)
The Committee divided: - Ayes: 13 / Noes: 3 - Question accordingly agreed to.
The Committee divided: - Ayes: 3 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 13 - Question accordingly negatived.
The Parliamentary Under-Secretary of State for Work and Pensions (Andrew Western)
It is a pleasure to serve under your chairship, Sir Jeremy. In commencing debate on clause 72, my hon. Friend the Parliamentary Secretary, Cabinet Office, passes the baton to me, to discuss part 2 and the elements of the Bill that pertain to the Department for Work and Pensions. This part sets out reforms of the Department’s approach to five key areas: information gathering, the eligibility verification measure, debt recovery, search and seizure, and penalties reform,
Clause 72 inserts proposed new section 109BZA into the Social Security Administration Act 1992. The new section grants DWP authorised officers powers to issue information notices to any information holder as part of a DWP criminal fraud investigation. When I say “authorised officers”, I mean DWP staff who have been authorised by the Secretary of State on completion of training and receiving accreditation, and can therefore issue notices. “Information holders” may include businesses or employers; a useful illustration of the sort of organisation from which we may request information is a travel agency. This kind of information can be vital in proving or disproving fraud.
The DWP already has powers to compel information in the Social Security Administration Act 1992. The Act sets out a list of information holders from which the DWP can request information, but that list is restrictive. New section 109BZA will update the powers to enable the DWP to obtain relevant information from any information holder in respect of all payments and investigations made by the Department; it also includes the ability to compel it electronically, which is a vital updating mechanism. These updates enable the DWP to take an approach similar to the one already adopted by the Scottish Government for their own criminal investigations into social security fraud.
The DWP takes its responsibilities in handling personal information very seriously. That is why new section 109BZA is constructed with a number of safeguards to ensure the appropriate use of the powers. First, per subsections (1) and (2), the power may be used only by an authorised officer where there are reasonable grounds to expect that a person has committed fraud. Reasonable grounds are established by an objective review of available facts, intelligence and evidence. This is the same principle on which the police also determine reasonable suspicion. Reasonable grounds cannot be supported by personal factors or a hunch. In addition, subsection (1)(b) stipulates that all the information requested must be “necessary and proportionate” for the purposes of investigating the fraud allegation. This determination will be made on a case-by-case basis. Mandatory training in the use of this power will be undertaken by all authorised officers.
New section 109BZA will make it easier for information holders to understand and respond to requests for information. It requires that the information notice must identify the individual concerned, and set out how the information should be returned and by when; it must also set out the consequences of non-compliance.
The clause will help to make the DWP’s fraud investigations more effective in both proving and disproving fraud. I understand that the Opposition will be interested in the code of practice, but I urge them to hold their comments until we consider clause 73, in which the code of practice is discussed at length. Having outlined the main provisions in the clause, I commend it to the Committee.
Rebecca Smith (South West Devon) (Con)
It is a pleasure to serve under your chairmanship, Sir Jeremy. As it was to the Minister, the baton has been passed to me from our Cabinet Office spokesperson, my hon. Friend the Member for Kingswinford and South Staffordshire, as part 2 sets specifically how the Bill applies to the DWP.
We recognise that there is a huge amount of work to be done, given the increasing levels of fraud and error against the Department for Work and Pensions in recent years. We broadly support the details of part 2, but unsurprisingly, we will have some questions in the coming sessions, and we are tabling a number of amendments too.
Clause 72 amends the Social Security Administration Act 1992 to provide powers to require information related to fraud. An authorised officer can give a written notice requiring information where they have reasonable grounds to suspect that the person has committed or intends to commit fraud, and where it is necessary and proportionate to do so. The Minister spoke about how this will enable organisations outside the DWP to be required to provide information. It would be useful to understand better the Social Security Administration Act and what it is currently used for, to make sure that we have covered specifically why it needs to be amended in addition to the provisions of this legislation. I recognise what the Minister is saying, but is there a problem now? Are we not able to take its provisions far enough, and so need these changes to be made? Why are existing information-gathering powers insufficient? This is quite a broadening of the current powers, so some clarification would be great.
I have another question on clause 72 and the changes proposed to the 1992 Act. When we talk about a “person”, is this just the person the information is being requested of—an estate agent or whoever it may be—or does the term also relate to the person being investigated? Are we talking about the person who is suspected of committing a fraud, a person in possession of information about that person under suspicion, or both? In effect, who is the written notice intended for? I am sure that is probably straightforward, but it would be useful to have it outlined clearly.
I note what the Minister said about the code of practice, which I was not planning to mention in this speech. I was saving my comments on that for clause 73—we are learning as we go in this. Can the Minister confirm whether there are any limits on the non-financial institutions that will have to provide information under the verification notices? Does this include institutions such as education institutions, insurance companies, water agencies and others that people receiving benefits might be paying bills to? Where do the limits lie around the types of organisations that will be contacted? I appreciate that is done in other legislation at the moment, but it is quite a big move. We may well cover this later, but are they subject to the same sort of time restrictions as other organisations? If a school that has never had to do this before is contacted, and they have no idea of what is expected of them, how are we going to ensure that they are not penalised? This could be the first time that anything like this has come in their direction.
Steve Darling (Torbay) (LD)
It is a pleasure to serve under your chairmanship this afternoon, Sir Jeremy. Liberal Democrats believe, as do all members of the Committee, that fraud is bad. It clearly impacts on the ability of the state to support people and our communities. It is important to put that on the table. I will give a small overview as we start debate on part 2 of the Bill, but as a liberal, the idea of mass surveillance within this part of the Bill causes me grave concern on a number of levels. This will be unpacked over the next few sessions.
I would welcome the Minister commenting on why this piece of legislation is being rushed. The rush poses a danger to our communities. The fact that the Government commissioned a review into the carer’s allowance overpayments is to be welcomed. We Liberal Democrats called for that, but we are gravely concerned that the Government are bashing ahead with this legislation without being able to take into account any lessons that could be learned from the carer’s allowance debacle.
Although the vast majority of the challenges that we face are error and fraud, my and my colleagues’ concern is that the Government need to fix the Department for Work and Pensions, which is effectively broken. I could wax about that for England, but I will not. When the machine is not fit for purpose, we need to fix it before adding more bells and whistles; simply adding to a broken machine will not fix it. I would welcome some explanation of why we are dashing ahead when we do not have the findings from the carer’s allowance overpayments review. I would also welcome a deeper explanation of what reasonable grounds for suspecting fraud will be. Putting a bit more colour on the palette would be extremely helpful.
Andrew Western
I welcome the broad support from the Opposition spokesperson, the hon. Member for South West Devon, for the overall intent of the Bill. She asked a number of questions about the usage of the 1992 Act. It sets out the information-gathering options available to the Department where fraud is suspected. When we want to compel information for whatever reason—it may be a referral, or data or evidence may be suggesting that there has been fraudulent activity—there is the ability to request, as part of an ongoing investigation, any information that may be useful.
There are two principal reasons why we need changes. The first is modernisation, as I said in my opening comments. I am sure all Members can see how being able to request information via digital means will add speed and simplicity to the process. That is a basic modernisation. There is a more significant change in the shift towards an exclusion list rather than an inclusion list of organisations, which broadens the range of organisations that we can request information from.
The hon. Lady asked whether institutions such as schools or utilities companies may be in scope. In essence, anybody is in scope for this power—for a request for information—unless they are withholding exempted information. There is a range of things that would be specifically exempt. Legally privileged material is an obvious example, as is information that could lead to self-incrimination for recipients and their spouses or civil partners.
It is worth saying for clarity that organisations that provide no-cost advice and advocacy services will not be compelled to share personal data about their service users. That will maintain trust, which is an important principle of their work, and allow individuals to seek help without fear of their information being disclosed. There is also an exemption from providing excluded or special procedure material as defined under the Police and Criminal Evidence Act 1984. That includes personal records, including records relating to physical or mental health, human tissue and confidential journalistic materials. Those are the types of information that would be exempt. With the exception of the organisations providing advice and support, all organisations are essentially in scope if they hold other relevant information to help with an ongoing inquiry.
The person in receipt of the notice is the person or organisation we are compelling the information from, rather than the person about whom it is compelled. So the person receiving the notice is the one we are asking for detail from.
Andrew Western
With permission, before turning to clause 73, I will take the opportunity to make a few general points about the approach to codes of practice for this Bill more generally, as that has become a recurrent theme in the line-by-line scrutiny and was in the evidence-gathering sessions last week. The codes of practice issued under the Bill do not contain statutory provisions. That means that they do not have any particular legal effect; they will simply outline how the measures will be operationalised in more detail. The Bill, and particularly its associated schedules, set out a baseline for that operation. In my view, that gives us more than enough opportunity to understand how the Bill will work in practice.
As the codes of practice do not contain statutory provisions, the guidance, as previously referred to in the evidence sessions, does not say that we must provide them alongside the legislation. The guidance even goes so far as to say that it is “unnecessary” to make it a statutory requirement to provide these codes at all, but we have done so as we believe that is the right thing to do. It is the legislation itself, as I said, that should be considered and scrutinised. There is considerable detail within the Bill, and it clearly sets out the legal obligations that the Government are creating that Parliament must consider, as we are doing in Committee.
As I have said, however, we want to be more transparent with the House, because we recognise that these codes are of interest, even if they are not wholly relevant to the legal obligations that the Bill will create. As such, as my hon. Friend the Parliamentary Secretary has done on part 1, I will provide an outline of what the codes will cover as the relevant clauses are debated. We have committed to provide drafts of the relevant codes as soon as they are available. That is not a requirement, but it recognises the interest of Members. We are going above and beyond what is required in the spirit of transparency.
The “Guide to Making Legislation”, which the hon. Member for Kingswinford and South Staffordshire may be interested to know was reissued this week—I assure him that it will be my bedtime reading this weekend—outlines that codes are not to be used as a substitute for legislation. That is why we have made a conscious effort to include lots of detail in the Bill about how the powers will work in practice.
The clause amends section 3 of the Social Security Fraud Act 2001 to require a new statutory code of practice for authorised officers accredited by the Secretary of State to exercise the information-gathering powers under the proposed new section 109BZA of the Social Security Administration Act 1992. Beyond the detail already included in clause 72 and other parts of the Bill, the code will set out more detail on the limitations of the powers and how they must operate, and clear conditions for their use. That includes detail on the meaning of a reasonable suspicion of fraud, as set out in clause 72.
The code will also include additional detail to help guide information providers. It will provide further detail on the timeframes for compliance and how an information request must be complied with—including how to comply with requirements under subsection (5), which includes the power for the DWP to request that information be provided in a specified form, and for the DWP to require an information holder to state where the information may be held if they do not have it and to explain why it cannot be provided.
The code will also include further details on the consequences of non-compliance. Under existing legislation, information providers who fail to comply with an information notice may be subject to prosecution, which can result in a fine of up to £1,000. If they continue to refuse to provide the requested information, they may be liable to a fine of up to £40 for every day that they fail to provide the requested information. That approach will apply to the new information-gathering provisions. There will also be further detail in the code about the consequences for information providers who repeatedly fail to comply with information requests, and about what may be considered a reasonable explanation for why the information provider is not able to comply with an information notice.
Before issuing the code of practice for the first time, we will carry out informal consultation with stakeholders on a draft code, to ensure that their views are reflected in the drafting. Once finalised, the code of practice will be laid before both Houses of Parliament and published.
Rebecca Smith
I thank the Minister for setting out that information. This is a short clause, so my comments will not be long. It amends section 3 of the Social Security Fraud Act 2001 to add a code of practice on the use of information powers exercised by an authorised officer.
As has been said, much has been made of the lack of a code of practice. We maintain our view, and I am sure other Opposition Members will agree. I have heard the reassurances of the Minister and, earlier today, of the Cabinet Office Minister, but the Minister’s indication of what will be in the code gives me an opportunity to ask a couple of questions.
I welcome that there will be a consultation on the code, although I appreciate that it could slow down the introduction of the legislation. Had the code of practice been developed in tandem with the Bill, or even beforehand, we could have implemented the Bill much more quickly after its passage to crack on with recouping some of the fraudulent costs and highlighting any errors being made. However, we are where we are and, even so, I welcome the consultation.
The Minister has reassured me that we will continue to hear about the code of practice, but my other question goes back to what I said on clause 72 about additional non-financial organisations that might be contacted, and to what the Minister has just said about the fines to be levied for non-compliance. A huge amount of responsibility is being placed on the people who receive these notices. This will be new to them as it is a new Government power, particularly as it pertains to the DWP.
What will be in the code of practice to ensure that we remember the people about whom we seek information are not necessarily the ones at fault? How do we communicate with them so that they want to co-operate, and so that they do not end up in a non-compliant position? This may not be within the scope of the Bill, but how do we communicate to the general public, in layman’s terms, what is expected of them? For example, if this lands on the desk of a primary school headteacher, how will the Department ensure that they understand what has been done and are not terrified by the process? How will it ensure that we achieve the process and outcomes we all seek?
Steve Darling
The Minister will not be surprised that I return to the fact that the Bill has been rushed. I respectfully remind him that we are a very refreshed House of Commons. This is fresh information for the vast majority of Members. Although Parliament may have a corporate memory, this Bill has moved at great pace since First Reading and we remain very concerned that this may result in errors.
The Minister has assured us that the code of conduct will be available in due course, but can he identify by what date or by when in the legislative programme? That would give us some comfort. Although positive words have been said about the code of conduct, it drives the culture of an organisation, and culture is extremely important. I look forward to some words of reassurance from the Minister.
Andrew Western
I am not sure that I agree with the assertion of the hon. Member for South West Devon that the time it takes to pass the code will significantly slow down the Bill. As she is aware, we are currently working with a range of organisations and stakeholders, and we are gathering information and ideas for a draft of the code.
To answer the hon. Member for Torbay, we hope to share the draft of the code before Committee in the House of Lords. I am happy to put that on the record, as it is an important point that applies to all codes of practice in the Bill, both for the Public Sector Fraud Authority and the DWP.
I am not sure I fully agree with the hon. Member for South West Devon that we could have saved time by having already drafted and consulted on the code. If there were any amendments to the Bill, the code would have to be rewritten, at least to some extent, to reflect them.
I was asked which organisations are anticipated to be called upon to provide information, as well as their willingness to do so and our ability to maintain a positive relationship. They want to engage with this, because tackling fraud is important and has a clear public benefit. We want to make the information notices as clear as possible. People will have at least 14 days to comply with an information request, and they will have the right to appeal should they have any particular issues. We would look to work with them wherever possible to ensure that they are able to provide the information needed. Clear communication is important, and we want to be certain that we achieve it.
I have dealt with the question about the code of practice, and I hope that is helpful to the hon. Member for Torbay. I struggle rather more with his suggestion that our being a new Parliament means the Bill has been rushed. A number of Bills have already made their way through the House since July. The machinery of government must be able to continue at the pace required to react to change, particularly for a Bill such as this where we are responding to evermore challenging and complex types of fraud. The Department for Work and Pensions alone lost £9.7 billion to fraud and error last year, which suggests to me that urgency is required. On that basis, I see no issues with the timings of the Bill.
Question put and agreed to.
Clause 73 accordingly ordered to stand part of the Bill.
Clause 74
Eligibility verification
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 30, in schedule 3, page 84, leave out line 12.
This amendment would remove pension credit from being a ‘relevant benefit’ for the purposes of the Act.
Amendment 25, in schedule 3, page 84, line 12, at end insert “(d) housing benefit”.
Amendment 29, in schedule 3, page 84, leave out lines 13 to 17.
This amendment would remove the provision for regulations to change the list of qualifying benefits.
Amendment 35, in schedule 3, page 84, line 13, leave out from “to” to end of line 17 and insert
“remove types of benefit from the definition of ‘relevant benefit’”.
This amendment would mean that benefits could not be added to the list of “relevant benefits” by regulations.
Amendment 24, in schedule 3, page 84, line 25, at end insert—
“or such an account which is held by a person appointed to receive benefits on behalf of another person.”
Schedule 3.
Andrew Western
Before I address this group, may I make a brief correction? I confused my information notices earlier: it is 10 days to comply, with no right of appeal, but we are happy to have conversations with those who, for whatever reason, are unable to provide the information that we require, and to work with them to ensure that they can.
I will speak to clause 74 and schedule 3, and then colleagues can speak to the various amendments. Clause 74 inserts proposed new section 121DB and proposed new schedule 3B, which is outlined in schedule 3 to the Bill, into the Social Security Administration Act 1992. The proposed new clause and schedule contain provision for the eligibility verification measure, and they must stand part of the Bill so the Secretary of State can issue a bank or other financial institution with an eligibility verification notice, which will help the DWP to identify incorrect payments in the social security system.
Ensuring that a person is eligible for the benefit they are receiving will help to prevent fraud and genuine errors so that people do not accidentally build up large debts, with all the worry and distress that causes. The measures before us are tough on fraud, but they are also about: fairness to those who play by the rules and rely on the social security system; fairness to those who make errors, by helping to identify potential errors sooner; and fairness to taxpayers, by ensuring that every pound is spent wisely, responsibly and effectively on those who need it and are legally entitled.
Fraud and error in the welfare system were responsible for the overpayment of almost £10 billion in 2023-24. Since the pandemic, £35 billion of taxpayers’ money has been incorrectly paid to those not entitled to that money. These measures alone will save £940 million over the next five years, up to 2029-30—a figure that has been certified by the independent Office for Budget Responsibility.
An eligibility verification notice issued under schedule 3B will require a bank or other financial institution to look within its own datasets and to provide data to help the DWP identify where someone might not meet the eligibility criteria for a particular benefit. To do that, the notice will contain defined criteria that the bank or other financial institution must use to detect accounts that might not meet the eligibility rules for a certain benefit—for instance, accounts that receive universal credit but have over £16,000 in capital, which is above the normal limit to remain eligible.
Only then, if there is an indication that an individual may not be eligible for the benefit they are receiving, will the bank or other financial institution share limited information about the account to allow the DWP to undertake further inquiries, as necessary. We know that a customer might hold money in more than one account, and not necessarily in the one that receives the benefit payment. For that reason, schedule 3B requires a bank or other financial institution to look at all the accounts it provides to the individual, and to compare them with the criteria set out in the notice.
The measures also contain important safeguards to protect benefit recipients and associated individuals, to protect their data, and to ensure that it is not unduly onerous for a bank or other financial institution to comply with an eligibility verification notice. Those safeguards, which are extensive, include clearly restricting who the DWP can collect information on, and for what purpose; clearly restricting how the DWP can use the information gathered under these powers; tightly limiting the accounts in scope, including the sharing of data on UK accounts; limiting the type of information that can and cannot be requested, with clear provisions that certain data, such as information on transactions, cannot be shared; and showing that a human will always be involved in decisions that affect benefit entitlement. A code of practice must be produced, providing guidance for financial institutions on their obligations under this legislation.
To protect the privacy of our customers and associated individuals, such as appointees, we must take steps to ensure that limited information is shared with the DWP—the minimum to enable further inquiries, where necessary. That is why part 2 of proposed new schedule 3B outlines provision for a comprehensive penalties regime to prohibit banks or other financial institutions from sharing information that is not permitted to be shared under the measure, as outlined in paragraphs 1(4) and (5). This can include information about individual transactions and special category data, such as data about an individual’s health, ethnic origin or political opinions.
If a financial institution wishes to dispute a notice, it has recourse under proposed new schedule 3B. Specifically, it will have access both to a process to ask the DWP to review the decision to issue a notice, as set out in part 3 of proposed new schedule 3B, and to an appeals process to formally dispute the requirements of a notice, as set out in part 4. Part 5 will mean that the Secretary of State must publish a code of practice to govern the use and operation of the measure, including data received under it.
I said I would spend a moment on codes of practice where appropriate, so I will now speak to this in more detail. The code of practice for EVM will provide further guidance for banks and other financial institutions on complying with notices, and information for those who may be affected by the measure. It will include detail on the eligibility of verification notice and its purpose, including how it will be sent, who should comply with it, and further details on the accounts in scope, such as linked accounts and appointees. It will specify further the type of information that the DWP will request from financial institutions, and the type of information that is prohibited, such as transaction and special category data. It will also set out how the DWP will use the data received in response to a notice, beyond what is in the Bill.
The code will also set out more detail on the safeguards to ensure that the measure is exercised in a proportionate and measured manner, along with the mechanisms embedded to ensure accountability. This includes safeguards for individuals, financial institutions and the data itself, as well as the independent oversight of the measure. It will explain how data must be handled and treated once received, along with the confidentiality and security requirements and compliance with rules and provisions set out in the Data Protection Act 2018 and the UK general data protection regulation. It will also set out clear avenues for compliance concerns to be raised.
The eligibility verification measure is projected to save £940 million over the next five years, and it is a vital part of a package of measures that will save up to £1.5 billion over the next five years.
The Chair
Before I call the shadow Minister, it would be immensely helpful if Members could say whether, at this stage at least, they intend to press their amendments to a vote. They will, of course, have a chance to change their mind if the Minister persuades them otherwise when he winds up.
Rebecca Smith
As we have just heard, clause 74 amends the Social Security Administration Act to give power to the Secretary of State to obtain information for the purposes of identifying incorrect payments of certain benefits. I think that is fairly self-explanatory, so I do not have any questions.
Schedule 3 provides further detail on eligibility verification measures, but what happens when people have an account with a bank or financial institution other than the one that DWP payments are made into? We talk a lot about linked bank accounts, but it is implied that one bank will be looking to see whether a person has multiple accounts. However, people have much more complicated lives.
How does the Minister intend to ensure that we not only look at the account into which the benefit is paid, so that the investigation is more thorough? Thinking specifically about National Savings & Investments—a Government account into which people save money—are we going to make sure that a person’s entire suite of bank accounts are included, or just the one into which the DWP pays money?
That leads me on to my amendments. As the official Opposition, we have tabled amendments 24 and 25 to schedule 3, relating to the scope of who may be subject to the legislation. I will also speak to the amendments tabled the hon. Members for Torbay and for Brighton Pavilion during my comments.
Amendment 24 would include within the scope of the Bill accounts held by a person appointed to receive benefits on behalf of another person. We have tabled that because it would mean that proxy accounts are not excluded and wider patterns of potential organised fraud could be monitored and prevented over time. Without that measure, we believe that it would be easy for fraudsters to deliberately evade monitoring.
Steve Darling
I am sure that many colleagues will be alive to the fact the proposals before us mean that one in eight will be affected by these quite significant powers of mass surveillance. Will the hon. Lady advise us on how many more people will be affected by including housing benefit in the proposals?
Rebecca Smith
If I may, I will come to that when I speak to amendment 25, which deals with housing benefit. I think it will be simpler if I deal with the amendments separately, but I thank the hon. Gentleman for that question.
We believe that we should look at the recipients of what are essentially proxy accounts because, without that measure, it would be easy, as I said, for fraudsters to evade monitoring deliberately, and therefore investigations and consequences. The Bill in its current form will be limited in how it can tackle welfare fraud, which is one of the main purposes of the legislation. Ultimately—maybe with the exception of error—where people are determined to commit fraud, there are numerous ways of doing it, and if the Government’s Bill is not enabling that significant investigation, we believe that it will fall at the first hurdle.
We also believe that the proposal has the value of increasing protection for vulnerable or older people who may otherwise be unwittingly targeted by those seeking to defraud the DWP. In effect, therefore, this amendment broadens the scope of fraud prevention, ensuring that any misuse of benefits by third parties is identified, and that includes those who are acting as a proxy. We argue that this is, in effect, a tidying-up amendment to enhance the measures in the Bill and to ensure that the legislation does not create loopholes before it has come into force.
We have also tabled amendment 25, as we believe that we should add housing benefit to the list of benefits that fall within scope. If we are serious about tackling fraud and error, we should want to expand the relevant benefits as far as we can, while ensuring that the cost-benefit analysis remains proportionate. Although housing benefit is in the process of being replaced as part of the roll-out of universal credit, as of November 2024, 2 million claimants of traditional housing benefit remain. New claims, as Members will know, can still be made for housing benefit by people who have reached state pension age or who live in supported, sheltered or temporary housing. Receipt of benefit is dependent on household income, including savings and capital, among other criteria.
Amendment 25 provides a focus in our debate on economic impact and cost effectiveness. The current accredited official statistics, published by DWP in its report, “Fraud and error in the benefit system”, show:
“The Housing Benefit overpayment rate was 6.3% (£980m) in FYE 2024, compared with 5.7% (£860m) in FYE 2023… Overpayments due to Fraud were 3.9% (£600m) in FYE 2024, compared with 3.5% (£530m) in FYE 2023.”
That represents £600 million of lost taxpayer money. The report continues:
“Under-declaration of financial assets (Capital) was the main reason for the changes across total Housing Benefit overpayments”—
I know that came up quite a lot during our evidence sessions. The report also states that at a total level, capital fraud
“increased to 2.2% in FYE 2024, compared with 1.3% in FYE 2023.”
We know that that is a significant problem. Indeed, as we heard in evidence from the Minister about capital fraud, the amount is eye-watering. Often this is about error, but equally, it does still mean that people fall out of scope for receiving benefits. That increase is statistically significant and highlights why we believe that housing benefit should be brought within the scope of the Bill, if the Government are truly serious about tackling welfare fraud and error.
Steve Darling
I reflect to the hon. Member for South West Devon that accusing somebody of being short-sighted when they have a guide dog with them is a bit of a juxtaposition, but it was taken well.
The Liberal Democrats and I have grave concerns about this Orwellian approach to mass surveillance, and that the proposals are overcooked. I go back to my concerns that the DWP is, sadly, not fit for purpose. One has to look only at the significant delays throughout the system and the challenges within that Department, and yet we are looking at granting it massive, extremely significant powers. The DWP already has the ability to intervene where it suspects fraud, and we welcome that where there is reasonable suspicion, but to actually subject people to this approach is outrageous. Some of the evidence I heard when I consulted people from disability groups is that people with mental health issues may be fearful. They may think, “Because the Government Minister is looking in my bank account, I can’t afford the nice cheesecake from Waitrose. I can only shop in discounted supermarkets because the Minister is going to be watching what I am doing.”
Turning to our amendments, we have grave concerns that the approach could be the thin end of the Government wedge. We have therefore tabled amendment 29 to put a clear restriction on the proposals, ensuring that what is before us is set in stone rather than allowing for mission creep.
On amendment 30, we know from the debacle around the winter fuel allowance that getting pensioners to step up to the mark and claim pension credit has been a real challenge. I also draw the Minister’s attention to the fact that pension credit is an area where there are significantly lower levels of fraud. There are already low levels of fraud generally throughout the benefits system, but the pension credit levels are extremely small.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
I think the Conservative spokesperson just gave the figure of £500 million in pension credit fraud and error last year. Is the Lib Dem spokesperson saying that that is not very much?
Steve Darling
We need to make sure that there is a level of proportionality. On pension credit, proportionality suggests to me that pensioners are often extremely private people, and they will fear that the Minister will be looking through their shopping bills. Although there may be reassurances, this is still the presentation of what parts of our society may see as a Big Brother state. We have concerns about the impact, and by excluding pension credit specifically through amendment 30, we would serve some of the most vulnerable people in our society in the best way we can.
Siân Berry
It is a pleasure to serve under you again, Sir Jeremy. I rise to speak against clause 74 and schedule 3, and to support my amendment 35, which I intend to push to a vote. I also support the two Liberal Democrat amendments, and will vote for those if they are pressed.
In short, I am opposed to clause 74 and schedule 3 standing part of the Bill, and to the related powers that apply to the eligibility verification process. These powers do nothing less than bring in a system of disproportionate, mass financial surveillance of millions of people who have done nothing wrong and are not suspected of any wrongdoing. It is of profound concern that these powers are likely to be used at scale to monitor the private bank accounts of people who need the support of society and have done absolutely nothing to arouse suspicion.
One of the changes that people wanted to see when they voted out the last Government was a welfare system that treats people with dignity and respect. Sadly and disappointingly, these parts of the Bill are based instead on blame and suspicion of people in need of help, when the bigger issue is unclaimed and underclaimed benefits due to a lack of awareness, complexity in the system and stigma. I asked the Minister in the evidence session whether he would be using these new powers to also help alert people who are underclaiming benefits to what they may be due. The answer was not very clear, but I think it was no, because only the possibility of overpayments and reclaiming those was discussed.
I do not want to tweak these proposals—I want to prevent these two parts of the Bill becoming law at all, because they would allow the DWP to require banks and other financial institutions to provide information about claimants of universal credit, pension credit and employment support allowance in order to interrogate their claims of eligibility and entitlement. I assume that every claim would be examined over time. That means a huge new invasion of citizens’ privacy.
Currently, if someone is out on the street, the police can only use suspicion-less stop and search on them if they have a section 60 notice in place, which involves setting out a clear reason, identifying a small area and identifying a fixed time for which that would take place. The Bill effectively puts a section 60 notice around every single person who claims these benefits. These people include, disproportionately, people from protected groups—disabled people and older people. This is a real problem; it is discriminatory, unsettling and unfair.
On the numbers, around 7 million people receive universal credit, around 1.4 million pensioners receive pension credit, and around 1.5 million get help from employment support allowance. These powers will drag nearly 10 million people directly into a net of intrusive financial surveillance, as well as those appointed to receive benefits on their behalf, including parents, carers, appointed people and landlords. Given that several of these benefits have eligibility requirements based on household income, we are bringing in family members as well. Unsurprisingly, these measures are of huge concern to disability rights, poverty, pension and privacy groups, who are united in their opposition to them.
Ideally, I want to see everything struck out, but amendment 35 to schedule 3 would at least mean that more benefits could not be added to the list of relevant benefits by regulations. It would leave in place the ability for Ministers to remove benefits through regulations in future.
The hon. Member for Oldham East and Saddleworth (Debbie Abrahams), Chair of the Work and Pensions Committee, set out on Second Reading the risk of damaging trust in and engagement with the DWP for millions of people who might otherwise not claim benefits. I raise that problem because I believe that underclaiming is as much of a problem as fraud and error and should be getting as much attention.
On proportionality, it is incumbent on Ministers to come up with a new, more proportionate way to address fraud, where there is reasonable suspicion. I am not against the issue being looked at, but I add that administrative errors are 8% of the problem. They are caused by the DWP’s mistakes and should not result in a need to treat as suspects people who might make errors in their claims due to lack of clarity in or awareness of requirements.
It is absolutely right that fraudulent uses of public money are dealt with robustly. To that end, the Government already have significant powers to review the bank statements of welfare fraud suspects. Ministers did not hear me complaining at the new powers to require more information when there is a reasonable suspicion of somebody having committed fraud. This eligibility requirement goes way, way beyond.
There are automated decision-making powers coming through in another Bill, which impacts on this Bill and the assurances we have received from Ministers. They say that no automated decisions will be made based on the eligibility verification data alone and that, where potential fraud is identified against those eligibility indicators, cases will be referred to the DWP for further consideration and investigation. However, assurances by the DWP that a human will always be involved in the decision whether to investigate an individual are not set out in the legislation, and the scale and nature of any human input is very unclear, despite its having been promised.
Furthermore, as we heard in oral evidence, while assurances about human involvement are also provided for under current data protection law, the Data (Use and Access) Bill currently making its way through Parliament will remove any proper prohibitions on automated decision making. Those must be included in this legislation, in the code of practice or in the regulations. I believe it is for the Government to produce urgent amendments to solve the problem.
John Milne (Horsham) (LD)
It is a pleasure to serve under your chairmanship, Sir Jeremy. It is important for us all in this place to remember that, although we make legislation with the best of intentions, it does not always play out perfectly in practice. As a member of the Work and Pensions Committee, I heard evidence a few days ago from a number of claimants who have had a very bad experience at the hands of the DWP. Their overall theme was one of antagonism and hostility from the service, and they described a number of serious problems.
That is the attitude that, unfortunately, many claimants and many people across the country have. They think that the objective of the DWP is to catch them out rather than to help them—rightly or wrongly, that is what they feel. In that context, the title of this Bill covers “fraud and error”, not “fraud and genuine human mistake”—which, frankly, is what goes on a lot of the time.
I say that particularly in the context of our amendment 30 relating to pension credit. As my hon. Friend the Member for Torbay has described, pension credit is an area of relatively low fraud. However, there are more elderly and vulnerable people who are more likely to make an error, particularly in the context of the removal of winter fuel payments. There is a little extra onus on pension credit, and we are trying to push greater take-up. About a third of eligible people do not claim pension credit. Part of the reason is that many of them feel intimidated by the process and the feeling that they are getting something that they should not have. It is fear that holds them back.
A few months ago, the Secretary of State for Work and Pensions, the right hon. Member for Leicester West (Liz Kendall) said she would “move heaven and earth” to try to push that take-up higher, because we never seem to get past that 65% to 66% level. In that context, this feels like a retrograde measure, likely to depress rather than to encourage take-up.
Neil Coyle
Could the hon. Member give us the figures on the increase in pension credit take-up for the period during which a Lib Dem held the position of Minister for Pensions?
John Milne
That was before my time and I was not even in the country, so I am afraid I cannot answer that question.
It is very important that we should be pushing take-up, not sending it into reverse. For that reason, I ask the Minister to reconsider the need to include pension credit; that the upside—the amount of money that might be recovered from fraudulent claims—is relatively modest compared with the potential downside of putting more people off claiming.
Regarding amendment 29, tabled by the Liberal Democrats, we have heard from many witnesses, such as Big Brother Watch, about the risk of mission creep and these powers being extended in too many directions. It seems to me completely unnecessary to simply give the Minister of the day the power to add whatever benefits he or she feels like at that time. There is no need for it. Excluding that now does not affect the tax take or the potential benefit for the Government, and it seems an unnecessary and disproportionate power. I urge the Minister to reconsider the inclusion of that measure.
Damien Egan (Bristol North East) (Lab)
I want to make a few points, because I am worried that some Members are underestimating the level of fraud and the direction of travel, because it is only going up.
The hon. Member for Brighton Pavilion is correct in a sense in saying that people voted for change and that fairness in the welfare system is one of the things they voted for, but part of that is about having confidence in the welfare system. People can see the level of fraud, and they want the Government to restore the balance so that it is less in favour of people committing fraud.
I encourage those Members who are apprehensive about these elements to visit their local jobcentre. I did two visits at my local jobcentre in Kingswood; I had to go back because the work coaches had so many stories to tell. Members of the Work and Pensions Committee will have heard me say this before, but I spoke to two women: one had been there for 45 years and the other 41 years. They said the level of fraud is something that they have never seen before. I wish they were here now, because everything that they said about how we deal with it was about getting information from banks and other agencies and sharing that information on eligibility and combating fraud. I wanted to make those points and I encourage Members to speak to them.
Siân Berry
Does the hon. Member recall me talking about clause 72 and not speaking up about speeding up the electronic getting of information from banks when people are under suspicion? Does he agree that there is a barrier at that point?
Damien Egan
I really appreciate the point, but I think if hon. Members were to spend time and speak to work coaches—as they may have done—they would find that work coaches want, and are asking for, more of that information to be shared. It is also about trying to prevent people from committing fraud.
Andrew Western
I will make a few general comments on the thrust of hon. Members’ contributions, beyond the comments that they made about their amendments, and then I will speak to the amendments as one at the end of my contribution.
The Opposition spokesperson, the hon. Member for South West Devon, talked about people who bank with more than one financial institution, and asked what happens if their benefit is paid into one institution and they have savings in another. She is right that we will not have full sight of somebody’s accounts if they bank with more than one institution. That is by design, specifically because of the concerns we heard from other Members about the scope of the Bill. Were we to take the power to check every single account in the country, there would understandably be significant outcry about proportionality; indeed, we have heard some of that with regard to what I would call the limited scope of what we are putting forward.
I would be especially concerned were we to attempt to narrow the scope by sharing the details of benefit recipients only. That would breach an important safeguard that we have built into the eligibility verification measure: namely, that we will not share data directly with banks. I do not think there would be a way to do that for somebody who banks with more than one institution without either checking every single bank account in the country—which would not only be a mammoth undertaking, but would lead even me to use words such as “mass surveillance”—or sharing data in the other direction, which I am incredibly keen to avoid.
This is a question of scope. We have gone a considerable way in narrowing the scope of this eligibility verification measure. It most obviously compares to the third-party data measure that the previous Government put forward in the Data Protection and Digital Information Bill. That did not make the same interventions to narrow scope—for instance, removing the state pension—nor would there have been independent oversight of the process.
The hon. Lady is correct that there is a question about what happens when somebody banks with more than one institution. I assure her—this is a really important point from a fiscal perspective—that the savings that we have earmarked against the Bill and the eligibility verification measure are based on the principle of checking only the institution into which the benefits are paid. That does not mean that we would check only that account, however, so if the person had more than one account—a current account, a savings account and so on—that would be in scope, albeit business and charity accounts are explicitly ruled out.
The hon. Lady also asked about the capacity to better protect older and vulnerable people. That is incredibly important. Clearly, there is already a range of safeguards across the Department to work with people who present to us as vulnerable. We have specialist staff who work with those people and a vulnerability management framework within the Department to ensure we work as best we can with people who need additional help and support. She is right that that may manifest more in cases involving pension credit, and we will do all we can to work with people in need of additional assistance.
That does not mean that we get everything right, but we have made strides in our day-to-day support for vulnerable people, both when they apply for benefits in the first place, and when they owe debt to the Department for whatever reason. When we come to the debt recovery powers in the Bill, I will say significantly more about the vulnerability protections that we have built into the Bill and have more generally across the Department.
That brings me to the general comments that the hon. Member for Torbay made. I will avoid some of the more hyperbolic language—“Orwellian”, “mass surveillance”—and go straight to one of my favourite things: a Waitrose cheesecake. I assure him that, as expressly set out on the face of the Bill, transactional data will not be shared with the Department for Work and Pensions under the eligibility verification measure. He says that people are saying that that should be of concern to benefit recipients; I suggest that those of us in this House have a particular responsibility not to peddle those sorts of myths.
I am compelled to address the overarching accusation that the DWP is not fit for purpose. We are not a perfect organisation and do not claim to be, but we support millions of people, week in and week out, pay out billions of pounds, week in and week out, and provide a vital safety net for people up and down this country. I am proud of the work that we do. That does not mean that we do not need to strive to make improvements or that we are in any way beyond reproach. But I have to say that the role we play in supporting the most vulnerable people in society is absolutely critical for this Government.
Siân Berry
I hope the Minister will not take this the wrong way, but I hope that he is able to understand that the stigma that people feel about applying for benefits is partly to do with the attitudes people have towards those who receive benefits. The idea of the Government applying a privacy invasion measure against that cohort of people as a whole feels like discrimination to them. It adds to the stigma; it speaks to the fact that they feel that they are not treated as well as other people in society. They are not believed when they say that they do not have £16,000. Those are all parts of the same package of discrimination, are they not?
Andrew Western
They would be, were the powers entirely unique. However, as we heard in the evidence of the representative from HMRC, there is a long-standing power—introduced, I believe, in the Finance Act 2011—for HMRC to routinely and regularly check all interest-bearing bank accounts in the country. I have not looked at the cohort of people who are fortunate enough to have interest-bearing bank accounts, nor have I ever been in such a position myself, so I plead ignorance here. However, I suspect that there is not the same over-representation of vulnerable groups.
The important point—this comes back to the broader point around automated decision making, AI and so on that the hon. Member for Brighton Pavilion made—is that we are looking to better improve our access to data, not take decisions as a direct result of the information we have received. Indeed, we have built in human decision making at every stage of the five areas where we are taking new or updated powers on the DWP side of the Bill.
Steve Darling
I referred to the proposals as Orwellian, and my concern goes back to “Animal Farm” where the notice was amended to read:
“All animals are equal, but some animals are more equal than others”.
We have this perverse situation with the legislation where for some sections of society it is appropriate for the Government to use AI to go through their bank accounts, and for other sections of society it is not appropriate to use AI to go through people’s bank accounts. How does that lead to a society that is cogent and speaks together? Or is this just sowing division around our communities?
Andrew Western
It is incredibly important to reiterate for anybody who may be watching our proceedings that the Government will not be going through anybody’s bank accounts. We will be asking banks and financial institutions to do that, and to share information with us only where there is a potential breach of eligibility verification. The information that is shared with us will be specifically related to identifying the bank account and the potential breach of eligibility. It will not be, for instance, special category data or transactional data.
To return to my point about the use of AI and automated decision making, when a flag comes back on the eligibility verification measure, a potential breach of eligibility will immediately be passed to a human investigator to take that forward. It will not at any point trigger a penalty or a prosecution for fraud without a human intervening and, as they do at present, establishing that there is potentially fraudulent activity or, indeed, an error that warrants a reclamation of overpayment.
Amendment 30 seeks to stop the DWP from being able to use the eligibility verification power in respect of pension credit. We have had quite the debate about that already, and the hon. Member for South West Devon made many of the points that I would have made.
Mike Wood (Kingswinford and South Staffordshire) (Con)
According to the House of Commons Library, one of the biggest factors in that 10% of pension credit expenditure that is lost to fraud and error is payments to people who are abroad. How will the measures on eligibility verification help to identify people who do not actually live in the country so would not be eligible for pension credit?
Andrew Western
I am grateful beyond belief to the hon. Gentleman, because he highlights why this provision is so important. More than 50% of the fraud and error that we see in pension credit comes from two principle sources, which the eligibility verification measure specifically seeks to address. One is the issue of capital fraud, where there is a relatively easy indicator—for example, in respect of universal credit, was the individual in receipt of capital in their account of more than £16,000?
The provision also has the benefit of helping us to establish when somebody has been out of the country for longer than their benefit entitles them to be. For instance, it would provide a flag on an account when somebody’s bank account suggested they had been making purchases abroad and so on. We would not receive the transactional data or know specifically where the purchases were made—or, indeed, whether it was cheesecake or some other item—but it would give us specifically the date that somebody left the country, and thereby show whether they were in breach of the length of time they are allowed to be away. This is not, then, just a tool to deal with capital fraud, although that is the most straightforward example to articulate and, therefore, the one I use most readily; it will also be useful to identify people who have been abroad for longer than their eligibility suggests they should be allowed to be while continuing to receive benefits.
It is important to recognise—I touched on this when I set out the human safeguard that is in place—that a flag would not necessarily mean that someone has done anything wrong, or that they are no longer entitled to benefits. On capital fraud, it might be because someone has received, perfectly legitimately, a Government compensation payment, such as for infected blood, which would be out of scope. That is why a human would check that. The person would therefore not lose benefits or receive an overpayment.
On someone being out of the country for longer than they are entitled to be—if they have been taken ill, or if there has been an environmental catastrophe, humanitarian disaster or some such, that means they are unable to leave the country they are in—again, that would be investigated. The person would not face action as a result. I hope I have set out exactly how the eligibility verification measure is useful not only for capital fraud, but for allowing us to notice and receive indications about when someone has been out of the country for longer than they are entitled to be while still receiving benefits.
As I said, on amendment 30, the hon. Member for South West Devon touched on many of the comments that I would have made about why pension credit is included. The change would not explicitly exclude pension credit, as with the state pension, because the legislation still enables Ministers to lay regulations for its inclusion at a future date. My intention, however, is to use the power for pension credit payments from the outset, because unfortunately the rising trend in overpayments of pension credits demonstrates that pension-age benefits are not immune from fraud and error.
In 2023-24, £520 million in pension credit was overpaid, and pension credit has one of the highest rates of capital fraud and error, with £198 million lost in 2023-24 alone. The rate of fraud in pension credit increased by more than 50% in 2023-24, as against the previous year, so we have a clear problem. The under-declaration of financial assets and claimants staying abroad for a longer period than is allowed remain the two main causes of pension credit overpayments in ’23-24. As I said previously, they accounted for more than 50% of all overpayments.
Equally, it is important to ensure that people receive the right payments. The eligibility verification measure is not about removing pension credit payments from anyone; it is about confirming that claimants meet the conditions of entitlement. The measure also enables the Department to help to prevent individuals from unknowingly accruing overpayments, pension credits or any other benefit in scope, which could lead to financial stress if later they need to repay money they were not entitled to.
Overall, the measure and the inclusion of pension credit will help the DWP to ensure that public funds are used responsibly while maintaining confidence in the benefit system. On that basis, I will resist amendment 30.
Rebecca Smith
Before we move on from pensioners, throughout the debate there has been a valid concern about pensioners potentially being alarmed at or feeling vulnerable about what might happen. Will the Minister clarify something? Any pensioner who is not involved with pension credit is not likely to fall within scope of having their bank accounts checked, so only those people who are interacting with the Department in one shape or another are likely to have their bank accounts searched, and only in relation to those benefits. Every single pensioner out there will not have their bank accounts scrutinised; only someone of whatever age or bracket who is, or seeks to be, in receipt of benefits will fall within the scope of the Bill. Am I correct in believing that? That would at least reassure a proportion of pensioners—although not all—that they are not, as we said, going to get snooped on for buying a cheesecake. They will fall in scope only if they end up interacting with the Minister’s Department.
Andrew Western
I am happy to confirm that the situation is as the hon. Lady articulated. Only someone in receipt of one of the three benefits initially in scope would face use of the eligibility verification measure.
Steve Darling
Will the Minister confirm whether, once the Bill has passed, he could choose to increase the scope to include all pensioners?
Andrew Western
That brings me to amendment 25, which seeks to include housing benefit, and to later amendments on the affirmative procedure regulations that we propose for being able to bring other benefits in scope. We would need to do that to reflect the changing nature of fraud and the fact that fraudsters, unfortunately, change their behaviour and the benefits they target depending on the safeguards in place and the extent to which they are effective. Therefore the answer to the question is yes, and I will say more on that when we come to the specific amendments in that space.
Border Security, Asylum and Immigration Bill (Sixth sitting)
Thursday 6th March 2025
(3 days, 13 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 6 March 2025 - (6 Mar 2025)
The Chair
Will everyone please ensure that all electronic devices are turned off or switched to silent mode? We now continue line-by-line consideration of the Bill. The grouping and selection list for today’s sittings is available in the room and on the parliamentary website. I remind Members about the rules on declarations of interests as set out in the code of conduct.
Clause 19
Meaning of key expressions
Question proposed, That the clause stand part of the Bill.
The Minister for Border Security and Asylum (Dame Angela Eagle)
It is a pleasure to welcome you back to the Chair, Mr Stuart, for what will be a marathon session. Clause 19 provides definitions for the key expressions used in relation to the electronic devices measure. These definitions mean that the measure will focus the powers only on irregular entrants who are in possession of an electronic device that authorised officers have reasonable groups to suspect contains information relating to facilitation offences under the Immigration Act 1971.
Furthermore, clause 19 defines “authorised officer” as:
“an immigration officer, or…a constable of a police force maintained by a local policing body”.
The aim of the powers is to gain access to information held on such devices on the organised crime groups who help facilitate or plan migrants’ dangerous journey and, as a result, to save lives from being lost. The clause is integral in defining the key expressions relating to how the powers can be used.
Clause 20 enables immigration officers within the United Kingdom of Great Britain and Northern Ireland and police constables in England and Wales only to search an irregular entrant if they have reasonable grounds to suspect that they are in possession of an electronic device that contains information linked to a facilitation offence. That power enables the search of a person, property, premises, vehicle or container. That is to ensure that, in any circumstances in which it is necessary to obtain a device, the authorised officer can use the powers to conduct a search. The clause contains safeguards to ensure the powers are used appropriately. Clause 20 provides clarity over how searches must be conducted in accordance with these powers.
Finally, clause 26 defines any additional expressions referenced throughout clauses 19 to 23. That will ensure that it is clear to users of the powers what key expressions mean. It is important to be transparent about what is meant and to ensure that the public and authorised officers fully understand these expressions.
Matt Vickers (Stockton West) (Con)
We support clauses 19 to 26, but only in so far as they endorse powers that we think already exist to seize, extract and retain data from mobile devices. Clause 19 provides definitions of key terms in sections 20 and 21 relating to the provisions of those clauses to allow authorised officers to search for, seize and retain relevant articles. The definition of a “relevant article” is
“any thing which appears to an authorised officer to be a thing on which information that relates, or may relate, to the commission of an offence under section 25 or 25A of the Immigration Act 1971 is, or may be, stored in electronic form.”
Will the Minister provide some concrete examples of what the Government think such information might consist of?
Clause 20 gives relevant officers—either an immigration officer or a police constable—powers to search a relevant person, which is someone who has entered the UK without leave or in breach of a deportation order. Will the Minister explain why subsection (2) does not allow for any more than one search after the person in question has arrived in the UK? The clause gives officers the power to search for “relevant articles”, which are described in clause 19 as
“any thing which appears to an authorised officer to be a thing on which information that relates, or may relate, to the commission (whether in the past or future) of an offence under section 25 or 25A of the Immigration Act 1971”.
That is quite a narrow definition, as it covers just electronic devices. Will the Minister reassure the Committee that the necessary powers to search for non-electronic items exist elsewhere? In practice, we suspect the power will be used to gather information and evidence to identify smugglers for prosecution. We fully support that, but most mobile devices are destroyed during or prior to travelling across the channel. Will the Minister therefore explain whether she expects any of the evidence gathered using the powers in these clauses to be used to support decision making on immigration enforcement?
If the devices are seized, as the former director general of Border Force pointed out in his evidence, they may contain useful information about nationality, identity, age and travel history, and may provide valuable evidence when assessing asylum claims. Will the Minister explain how effective the new powers will be in supporting evidence gathering to remove those with no right to be here? Will information gathered using these powers be available to asylum screening teams? Will that evidence be used in decision making for immigration appeals? These clauses do not have extraterritorial reach, so can the Minister explain to what extent the Government envisage these additional powers will make a meaningful difference to smashing the gangs, when many of the perpetrators are located outside the UK?
Pete Wishart (Perth and Kinross-shire) (SNP)
These clauses create invasive new search, seizure and retention powers, along with the powers to access, copy and use information contained within an electronic device. The new powers can be applied to any person who arrives irregularly and has not yet been granted permission to enter or remain in the UK. They allow an immigration or police officer to fully search a person, including a search of that person’s mouth. I expect that the Minister will tell us exactly whether that particular qualification is required for these new powers.
This is not the plot and setting of some future dystopian film: it will be the UK sea border in the course of the next few months. These things will not be done to hardened criminals wandering the streets of the United Kingdom or those associated with violent crime. They are to be done to some of the most abandoned and traumatised people in the world. With these clauses we are starting, measuredly, to go into police state territory. They are essentially a hybrid form of stop-and-search powers, without the due qualifications and reassurances. I do not know if profiling will be a part of this—I will be interested in the Minister’s response—but it seems like only one profile will be included in all that, which is that of every asylum seeker. They may all be subject to these new powers.
For these powers to be exercised, there need only be reasonable grounds and suspicion that a relevant article appears to store some electronic information that relates or may relate to the future or past commission of a facilitation offence. That seems excessively broad. Practically any person who arrives irregularly to the UK may be subject to these powers. Any information received from these searches would be used for preventing, detecting, investigating or prosecuting facilitation offences. The property can be retained for as long as considered necessary to assess, examine or copy information for use in proceedings for an offence, before being returned or disposed of.
I trying to think why the Government want these clauses. I know they are going to tell us it is all about helping to disrupt organised crime and making sure they can find particular and specific information on electronic devices, but I think a lot of it has to do with the 2022 High Court ruling decreeing that the Home Office’s secret policy of blanket searching, seizing and returning mobile phones from individuals arriving by small boats was unlawful.
Just like the Tories before them, if any particular law that defends and protects people is seen or deemed to be a little bit unnecessary, the Government will just bring in a new one to override it completely, forgetting anything to do with the consequences and implications for people. These new offences clearly compromise a person’s right to a private and family life. Given the confidential, legally privileged, sensitive, private and personal nature of the messages, photographs, information, correspondence and data that may be on such mobile devices, we hold that that could only ever be the case. To be fair, the Government respect that and acknowledge it as fact, and the European convention on human rights memorandum suggests that the new powers could be distinguished and that phones will not be seized on a blanket basis when these powers come into force—well, thank goodness for that.
The memorandum says:
“The Home Office will issue non-statutory guidance about the use of the powers and training which will be required for authorised officers exercising those powers.”
We will have to see that happen pretty quickly, because we have no idea how any of these powers will be exercised. Again, I am entirely happy to take the Minister at her word on how the new law will be exercised as we go forward. However, there is no such guidance for parliamentary scrutiny during the passage of the Bill, so it remains entirely unclear how the Home Office proposes to use these wide and invasive new powers.
I am distinctly uncomfortable with the new powers, and I am disconcerted about how they may be applied and used. A number of agencies have serious misgivings about the type of individuals who will be subject to these new powers. The Minister has to explain just a little more how these powers will be used and what protections will be put in place, particularly for some of the most traumatised people whom we will be ever deal with in this country.
Jo White (Bassetlaw) (Lab)
I very much welcome this element of the Bill on electronic devices. While clause 22 will give officers powers to seize digital devices that are believed to be used for the purpose of people smuggling, clause 23 gives suitably trained and accredited criminal investigators the powers to access the information on mobile devices, phones and laptops that will build the evidence base, history, connections and understanding of the routes of the criminal gangs.
Seizing and extracting data from mobile devices is a powerful tool already used by our security services. There are already established Home Office guidelines on this, and these clauses extend those powers and will help enable intelligence-led profiling of irregular arrivals. That key change will lead to greater opportunities to disrupt the trade of these awful gangs.
Chris Murray (Edinburgh East and Musselburgh) (Lab)
I want to make just a couple of points on the seizure of phones. We have to be incredibly realistic about the threat that the country faces and how these things are organised. We have seen people-smuggling networks and trafficking networks developing in complexity and scale. It does not start in France; it goes all the way through European countries—our allies—and then through countries that are very difficult for us to engage with, including some countries that are at war and some that are hostile states.
The evidence from the National Crime Agency is very clear that the networks are organised by phone, and that that is the primary means by which these criminals orchestrate them. We know that they are evolving, so it is really important that we give officials the power to seize those phones not only to understand where these smuggling networks are coming from, which is the only way to intercede and save people in unsafe vessels, but to disrupt those networks later.
We heard a whole set of arguments earlier about the insufficiency of deterrents in stopping sea crossings. Professor Walsh from the Migration Observatory was really clear that the demand is inelastic. No matter how many deterrents we introduce, there will still be some demand rising to meet them. That is why disruption is so important, which we can only happen if we have the ability to seize those phones. There is a really important distinction between targeting the demand and targeting the supply of the ability to cross the channel.
On the point about whether the powers are applied on a blanket basis, they are not. The Home Office is clear that there will be statutory guidance. The people who seize these phones will be subject to the same rules that are already in place on the handling of material seized from any individual, and they need those powers. The point about family life and private life is absolutely fair, and it applies whenever someone’s phone is stolen, which is a wider debate that we have in society. The truth is, there is no capacity to only seize part of someone’s phone. We cannot seize only some data and not detect, for example, private text messages or family photographs. It is proper that the Home Office officials who seize such data are subject to the rules that we have in this country about protecting the data and returning it when it is decided that it is not required, but we cannot separate out different types of data, and we would be throwing the baby out with the bathwater if we did not allow the powers to seize it.
Dame Angela Eagle
The proposed powers will enable immigration officers and the police to search for, seize, retain and extract information from electronic devices, but only based on two criteria. The first is reasonable grounds to suspect that the person has a relevant electronic device and that it contains information that relates, or may relate, to the commission, whether in the past or future, of an offence under sections 25 or 25A of the Immigration Act 1971—the facilitation offence.
The second criterion is that the person must be an irregular arrival or entrant. Currently, the Illegal Migration Act 2023, which is on the statute book until we get this Bill made into an Act, allows for blanket seizure, and searching for all purposes, of all phones. We are repealing that very wide power and replacing it with this one, which is much more targeted than the IMA one.
The hon. Member for Stockton West hinted that we should use this clause to widen the powers, or allow all the information on the phone to be used for all purposes. That is not what we are suggesting. In fact, part of the reason why the Illegal Migration Act powers of seizure was never operationalised is that building the sheer capacity to take everyone’s phones off them and download the contents and analyse what was on all of them defeated the powers that be, and the technical ability to do so has not yet been developed.
It seems to us, from talking to organisations in the police, and the National Crime Agency, who follow these things very closely, that the best and most targeted way to get at some of this information is to have these criteria. There must be reasonable grounds to suspect, and that is not a blanket thing. These are intelligence-led powers, which will lead us potentially to certain individuals, so that we can take a device off them and analyse what is on it.
Experience suggests that what is on such devices can be very revealing. I will not list things here, because I do not want to produce a list of things that people should not leave on their phones that is essentially public, but we all use our telephones and other devices in ways that we all know about, and we probably would be very sobered if we realised how much Apple knows about us, for example, just by looking at its own records. A lot can be gleaned, but there must be reasonable suspicion that the individuals whose devices are taken are involved in facilitation—not just coming over, under section 24, but under section 25, which is facilitation, the more serious offence.
The hon. Member for Stockton West said he thought those powers already existed. In the Illegal Migration Act, yes, but they are completely uncommenced and not put into effect, and are far too blanket to be useful. There is a current power to seize, but that power does not enable immigration officials or police constables to search and seize devices in many circumstances at all. First, a person must be under arrest before that can be done, and we think that, as part of our intelligence-led, counter-terrorism-style powers to defeat organised immigration crime, being able to search a bit ahead, and certainly ahead of an arrest, is a useful power, so that is what these clauses provide for.
The hon. Member for Stockton West asked whether information found on phones could be used for asylum casework. No, we do not think that is appropriate. This focused power allows us to search for information and evidence about organised immigration criminality, not about any other aspect of the person’s existence. There are clauses that we will come to later, however, that would enable us to operationalise the information we have, particularly if other crimes come to light as a result of a search.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20 ordered to stand part of the Bill.
Clause 21
Powers to seize and retain relevant articles
Question proposed, That the clause stand part of the Bill.
Dame Angela Eagle
Clause 21 provides immigration officers in the United Kingdom of Great Britain and Northern Ireland, and police constables in England and Wales, with the power to seize and retain electronic devices. Clause 21 provides a clear and detailed approach for authorised officers to ensure that the powers are correctly, efficiently and effectively used.
Matt Vickers
Clause 21 gives authorised officers the power to seize any electronic device that has been found in a search under clause 20, or is not found on a search but appears to the officer to be, or to have been, in the possession of a relevant person. How would officers determine whether an article appears to be or to have been in the possession of a relevant person? What is the evidence threshold for that?
My question for the Minister about clause 21 is similar to my one about clause 20. Will the powers be used to gather evidence that can be used in immigration decision making and appeals? The Opposition support the powers in this clause, in so far as they go.
Dame Angela Eagle
I am glad that the hon. Gentleman supports the powers, but I emphasise to him again that clause 21 is very much in the context of the clauses that we have just agreed. It is a more limited—not a blanket—power. It exists within the parameters that I set out in the previous debate.
I emphasise again that none of the information seized in this context could be used in an asylum case; it is for the purposes of dealing with organised immigration crime. It is not for wider purposes, unless other criminality is found, in which case it becomes available and can be passed on. That will be dealt with in some clauses that are coming up. But these provisions are limited to collecting evidence and intelligence on organised immigration crime from people who have just entered the country illegally.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Clause 22
Duty to pass on items seized under section 21
Question proposed, That the clause stand part of the Bill.
Dame Angela Eagle
Clause 22 will provide immigration officers using the powers with the duty to pass on electronic devices to other agencies, such as the police. The clause will be used if an electronic device seized contains information about a non-immigration offence—this is the case that I was hinting at earlier. Clause 22 provides the process to be used in these types of cases. We cannot seize an electronic device without that process in place, because we may discover information relating to a criminal offence, such as a counter-terrorism offence or an offence related to indecent and/or obscene material of a child—those kinds of offence. If we discover evidence of such activities on a phone, we must act, and to act we have to have the processes in place to enable items to be forwarded to police or any other agency that needs to take possession of the device for its investigation into the other criminality.
The clause provides for a robust step-by-step process to ensure that immigration officers know what actions to take to forward the device or if the agency to which we wish to forward the device refuses to accept it for an investigation.
Matt Vickers
Clause 22 gives authorised officers the duty to pass on seized items that have been found in a search under clause 21 where there is a reasonable belief that the article or information stored on it has been obtained in consequence of, or is evidence in relation to, an offence other than the relevant immigration offence. The immigration officer is under a duty to notify someone who has the functions to investigate the relevant offence. What might be the reasons why a person notified under the clause might not accept the article, and what would be an acceptable reason? If a relevant person refuses to accept the article, what are the next steps? We support the powers in the clause so far as they go.
Dame Angela Eagle
It is a bit difficult to talk about specific circumstances in a generalised way. As the hon. Gentleman will perceive, there may be some material on a phone that police or immigration officers are worried breaks the criminal law—I talked about counter-terrorism and child sexual exploitation as potential examples. That information may be passed on and the relevant authorities might decide that it was not at a criminal level—that would be the kind of occasion that the hon. Gentleman was asking me about.
However, one would assume that, with the appropriate training, it would be fairly obvious whether something would be a worry for the purposes of counter-terrorism or child sexual abuse, and police forces could understand whether they have an obligation to try to prevent criminal activity of a category other than that for which the phone was originally seized. Once we begin to seize phones for narrow purposes, we have to make certain that passing on that information is lawful, and that is the purpose of the clause.
Question put and agreed to.
Clause 22 accordingly ordered to stand part of the Bill.
Clause 23
Powers to access, copy and use information stored on relevant articles
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 22—Access to mobile phone location data—
“(1) The Investigatory Powers Act 2016 is amended as follows.
(2) In section 86 (Part 3: interpretation), after subsection (2A)(b), insert—
‘(c) illegal immigration.’
(3) The Immigration Act 2016 is amended as follows.
(4) In paragraph 4 of Schedule 10, (electronic monitoring condition), after subsection (2)(d) insert—
‘(e) involve the tracking of P using P’s mobile phone location data.’”
This new clause would allow law enforcement to access mobile phone location data of people who enter the UK illegally.
Dame Angela Eagle
I will wait until the hon. Member for Stockton West has spoken to his new clause before I respond to anything he says about it; I will briefly outline what clause 23 does and if the hon. Gentleman wants a reply, I will come back at the end.
Clause 23 will ensure that authorised officers can assess, examine, copy and use information stored on a relevant article. It will enable authorised officers to copy the information from electronic devices so that the device can be returned to the owner as soon as possible. The clause is vital to enable authorised officers to obtain the information needed in relation to facilitation offences under sections 25 and 25A of the Immigration Act 1971, to use for purposes relating to the prevention, detection, investigation or prosecution of such an offence. It is very much targeted at organised immigration crime and the facilitation of illegal entry to this country.
Clause 23 will help the Government to tackle organised crime groups, protect migrants from exploitation and prevent lives from being lost on dangerous journeys across the channel. Obtaining that information will further focus our approach to tackling organised crime groups, identifying as early as possible the trends in the activities of gangs, including their modus operandi, and providing the Government with improved information to prevent future fatalities.
Matt Vickers
Clause 23 gives authorised officers the power to access, copy and use information stored on relevant articles that have been retained under powers detailed in clause 21, and authorises the use of any information retained under this clause relating to the prevention, detection and investigation, or prosecution of such an offence. We support the powers in the clause. However, it is important to bolster the utility of the powers in clauses 20, 21 and 23. It is for that reason that we have tabled new clause 22, picking up on the suggestion made by the former director general of Border Force in his written evidence to the Committee.
We have tabled the new clause because currently Border Force and immigration enforcement officers are not able to use mobile devices to track illegal migrants on bail. Although powers exist for electronic tagging, there are difficulties with using these powers and so they are not frequently used. At present, mobile devices can be used only for tracking people for serious offences. Under the Investigatory Powers Act 2016, an illegal entry into the UK does not count as a serious offence for these purposes.
Mobile devices are often used by migrants on bail to report by phone rather than in person, which minimises their risk of arrest and detention on reporting. Without access to location data about illegal migrants, they are able to stay at addresses not listed on their bail forms. If immigration officers were able to make use of location data from mobile devices, they would be better able to secure compliance with bail conditions and thus reduce the risk of absconding.
New clause 22 would allow law enforcement to access the mobile phone location data of people who enter the UK illegally. It would do so by adding illegal immigration to the Investigatory Powers Act 2016 as a serious offence that allows location data to be used. We would also amend the Immigration Act 2016 to allow a person’s mobile phone location data to be used as part of electronic monitoring for immigration enforcement.
Of course, migrants can change phones, but they are more likely to make use of them than electronic tags. In our view, the new clause would add a useful new power to immigration enforcement teams. I am very keen to hear the Minister’s view.
Dame Angela Eagle
New clause 22 proposes an amendment to section 86(2A) of the Investigatory Powers Act 2016. However, I do not think that this proposal is either necessary or appropriate.
The Investigatory Powers Act 2016 provides law enforcement and other relevant public authorities with the ability to acquire communications data covertly, where it is necessary and proportionate to do so. Members of the Committee should particularly focus on the seriousness of the powers conferred in the 2016 Act, including the ability to covertly acquire communications data where it is necessary and proportionate to do so.
With new clause 22, the question arises as to whether it is appropriate to add immigration issues to that area of the law, and whether, with an immigration issue, it would be necessary and proportionate to start acquiring covertly communications in an immigration setting. It is important to consider whether that would unbalance the Investigatory Powers Act 2016 and cause some issues that would probably weaken it.
The Investigatory Powers Act 2016 is intentionally neutral on the specific types of crime for which the powers within it can be deployed. Instead, it sets a threshold for serious crime, to enable access to more intrusive powers. The threshold for the acquisition of communications data—the who, when, how and where of communication, but not the content—is set out in section 86(2A) of the Investigatory Powers Act. Events data, which includes details of where and when a specific communication took place, is available only for crimes that meet the serious crime threshold. The threshold at section 86(2A)(a) of that Act is a crime for which a sentence of at least 12 months’ imprisonment can be handed down.
The proposed new clause does not define illegal immigration, but many of the immigration offences in section 24 of the Immigration Act 1971, as recently amended by the Nationality and Borders Act, will already meet the serious crime threshold. There is no real reason to put immigration crime in there; it is already implicitly included. If we start to add particular instances, that will unbalance the way that the Investigatory Powers Act works. That is a technical point, but it is about keeping our statute book coherent, rather than adding things in for effect. Essentially, since offences under section 24 of the 1971 Act are indictable, the serious crime threshold would already be met, so events data can already be acquired as part of the investigation. We do not need to go through the rigmarole in the new clause to emphasise what is already possible.
Where offences do not meet the serious crime threshold, it would not be proportionate to extend the use of events data to those crimes. The right to private and family life is set out in article 8 of the Human Rights Act 1998, and it is important to uphold our obligations to the European convention on human rights. I know that is not always the most popular thing among Opposition Members, but as someone who voted for it in 1998, I am still quite proud of it. Defending our human rights and ensuring that such things are proper, proportionate and lawful is an important part of trying to pursue and deal with difficult cases with certain standards of behaviour.
Although article 8 is a qualified right, we must ensure that interference remains necessary and proportionate to the level of criminality. By introducing specific crime types that do not meet the sentencing threshold, we risk eroding the safeguards in the regime. By taking away the rights of people who may seem marginalised at the moment, I submit that we are putting at risk our own rights, and human rights in general. That is not something that I would want the Government to do.
New clause 22 would also unnecessarily amend schedule 10 of the Immigration Act 2016. Where a person is subject to electronic monitoring as a condition of their immigration bail, the Home Office can access their location details via the GPS tag or non-fitted device. There is no need to access mobile phone location data, because there are already powers to monitor the whereabouts of individuals at risk of absconding. I hope that, having had that debate, the hon. Member for Stockton West will realise that those things are already covered in the way that we currently do things. I hope that he will not press the new clause to a vote, but obviously we will not know until we get on to voting on it—some time in the future.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24
Amendment of the Criminal Justice and Police Act 2001
Question proposed, That the clause stand part of the Bill.
Dame Angela Eagle
Clauses 24 and 25 deal with amendments to the Criminal Justice and Police Act 2001, extending those powers to other authorised officers and to key definitions in the clauses. Clause 24 includes amendments to the 2001 Act to extend powers of seizure where a device may contain legally privileged material, excluded material and special material. The 2001 Act also contains essential safeguards for the handling of such material. Extending its powers will ensure that the seizure of any device will not be prevented by claiming that it holds legally privileged, excluded or special material, which is often an excuse that is raised when such matters come up.
Furthermore, clause 24 will ensure that this data is protected, but that operationally, the information needed can still be taken for the purpose of these powers, and that seized electronic devices are returned as soon as reasonably possible.
Clause 25 provides the Secretary of State with the ability to extend the powers to other authorised officers, via secondary legislation, if they are required to support the disruption of organised immigration crime. The Government will ensure that any decisions on extending the powers to other authorised officers will be fully considered before action is taken.
Matt Vickers
Clause 24 amends the Criminal Justice and Police Act 2001 so that provisions relating to the protection of legally privileged material and excluded and special material apply when mobile devices are seized under clauses 20 to 23. Can the Minister explain how often the Government envisage that those provisions would need to be invoked?
Clause 25 allows the Secretary of State to make regulations to extend the powers given to authorised officers in clauses 20 to 23, to be available to other people, including people designated by the Secretary of State. Why might these powers need to be extended to different categories of people? Who does the Minister have in mind? Why are those not included on the face of the Bill? Why was it judged appropriate that these powers are subject to the negative procedure?
Clause 26 defines key terms used in the preceding clauses, and we have no problem with those definitions.
Mr Will Forster (Woking) (LD)
Clauses 19 to 23 contain very wide powers. Often, police constables have those powers only when they are authorised and monitored by their superiors, but the powers in the Bill almost allow civil servants and immigration officers to use them without oversight. Clause 25, first, allows Ministers to extend those powers to privately employed staff, and secondly, does so without requiring Ministers to give directions for the exercise of those powers. That sits very poorly with me. I am quite concerned about that. I can understand why we need some broad powers, and I was happy to let the others go through on the nod, but clause 25 seems to go further still. Could the Minister try to reassure me—or us? Particularly, would the Government agree to issue directions for the use of those powers, either today or before MPs vote fully, on Report? I think some colleagues out there will say that the private sector should not have these powers, but if they are clearly identified and statutory guidance is issued, I would feel a lot more reassured.
Dame Angela Eagle
The first thing to say is that the powers under the Criminal Justice and Police Act are already used by law enforcement and apply in many statutes. Therefore, all of these powers will be used to ensure compatibility with ECHR protections, GDPR protections and data protection generally. We have a very high level of expectation when it comes to data protection in these instances.
Both hon. Gentlemen—the hon. Members for Stockton West and for Woking—have asked about the extension to further authorised people, which is potentially available as part of the clause. It is not unusual—the hon. Member for Woking has made this point—for the Government to hire and use contractors, on either a short-term or a long-term basis, depending on demand or business needs. One example that comes to mind in this context would be for a forensic data specialist to do analytics of the information that had been downloaded. [Interruption.] I am very sorry if that is me. Hopefully it is not.
Some of this is about ensuring flexibility in the statute, within the protections that I have just talked about—the GDPR, data protection legislation and ECHR requirements —to be able to deal with the information in all circumstances without having to come back to primary legislation. Clearly, those people would be working under the same data protection expectations and requirements as any directly employed person working for the Home Office.
The Chair
With this it will be convenient to consider the following:
Clauses 28 and 29 stand part.
New clause 23—Exemptions from the UK GDPR: illegal migration and foreign criminals—
(1) The Data Protection Act 2018 is amended as follows.
(2) In subsection (2)(b) of section 15 (Exemptions etc), at end insert “, and makes provision about the exemption from all GDPR provisions of persons who entered the United Kingdom illegally and foreign criminals;”
(3) In paragraph (2) of Schedule 2, after sub-paragraph (1) insert—
“(1A) GDPR provisions do not apply if the data subject entered the United Kingdom illegally or is a foreign criminal.
(1B) For the purposes of sub-paragraph (1A)—
(a) a person “entered the United Kingdom illegally” if they entered the United Kingdom—
(i) without leave to enter, or
(ii) with leave to enter that was obtained by means which included deception by any person; and
(b) “foreign criminal” is defined in accordance with section 32 of the UK Borders Act 2007.”
This new clause would disapply data protection laws from data on people who have entered the UK illegally or are Foreign National Offenders.
Dame Angela Eagle
Again, I will reserve my comments on the new clause until after I have heard what Members on the Opposition Front Bench have to say about it.
The group entails clauses 27 to 29, which cover the arrangements for HMRC to supply information that it holds in connection with its customs functions. The group also covers new clause 23, which I will try and separate out so that I can try to answer the questions from the hon. Member for Stockton West, once he has put them.
Government Departments like the Home Office and law enforcement partners rely on information sharing for a range of purposes, including law enforcement and border security-related purposes. Key datasets are held by His Majesty’s Revenue and Customs, many of which are held in connection with HMRC’s customs functions. Existing statutory provisions to share this information are complex, fragmented and restrictive in ways that prevent the Government from taking full advantage of technology such as modern big data analytic tools.
Clause 27 will create a new power for HMRC to supply information that it holds in connection with its customs functions to a range of recipients, including UK Ministers, Government Departments, police, and certain international partners. HMRC will be able to supply information for use for the purposes of any of the functions of the recipient.
The sharing of entire datasets and the use of customs information for more than just customs purposes will enable the Home Office and other partners to analyse the information to identify suspicious activity that would not be apparent if each dataset were considered in isolation. This will support key Government objectives, such as disrupting and dismantling organised crime groups, preventing the unlawful movement of people and goods into the country, prosecuting offenders and protecting vulnerable people, as well as the Government’s safer streets mission.
Clause 28 regulates how the information supplied under clause 27 may be used and disclosed by its recipients. The aim is to ensure that the information is fully safeguarded while also enabling Government Departments to use information received for any of their functions. That will ensure that maximum benefit can be derived from the information received.
Information shared under clause 27 is subject to a general rule: the person who receives it must only use it for the purposes for which it was supplied. They may not further disclose it to anyone without HMRC’s consent. However, there are a number of exceptions to this general rule that will enable certain recipients to use and disclose information more flexibly. UK Ministers, Government Departments and the police will be able to reuse customs information for any of their functions and further share it between themselves for specified border security and law enforcement-related purposes. Additionally, there will be extra onward disclosure permissions for the Home Secretary so that she may disclose the information to any person for use for certain immigration and customs-related purposes.
Clause 29 regulates how the information supplied onwards in accordance with clause 28 may be used and disclosed by its recipients. The aim is to ensure that the information is fully safeguarded. The clause focuses on making clear the restrictions surrounding the reuse and onward disclosure of information supplied under clause 28. Any person supplying information in reliance on clause 28 or 29 must notify the recipients of these restrictions, as they apply to the reuse and onward disclosure of the information. In recognition of the particular importance of protecting HMRC information, which can include a great deal of personal information, clause 29 extends the existing criminal offence of wrongful disclosure under section 19 of the Commissioners for Revenue and Customs Act 2005 to apply to any person who discloses information in contravention of these restrictions.
The intent of clause 29 is a continuation of the safeguards laid out in clause 28, while ensuring that none of the restrictions go against the spirit of the overall information-sharing provision. Clause 29 protects information from being shared beyond the provision’s intent. I will not deal with new clause 23, tabled by the hon. Member for Stockton West until he has spoken to it.
Katie Lam
We welcome the powers in these clauses to share HMRC data. Border Force is responsible for clearing both people and goods at the UK border. There is international precedent for moving towards joint targeting centres for people and goods. From a law enforcement perspective and from ours, the more customs information that can be shared with UK and other Government agencies, the better. HMRC has a range of customs functions, including the collection and management of customs duty, monitoring and controlling the movement of goods, and control of cash entering or leaving the UK. HMRC is bound by a statutory framework of confidentiality and needs a lawful basis to disclose information.
Clause 27 will allow HMRC to share customs information in support of defending the security of the UK borders. The clause allows UK Ministers, Government Departments and the police to reuse customs information for any of their functions, as the Minister laid out. The clause also allows data to be shared with international organisations that have functions relating to the movement of goods or cash across international borders, or if an international arrangement makes provision for co-operation between that organisation and HRMC. We welcome the powers in clause 27. I would like to ask the Minister how often she expects these data-sharing powers to be used for law enforcement and her assessment of what practical effects the powers will have on making it easier to disrupt organised crime networks.
Clause 28, which we support, specifies the circumstances in which UK Government Departments, Ministers and the police can further share customs data. We also support clause 29 on the safeguards included in this clause. We have tabled new clause 23 to disapply data protection laws from data on those who have entered the UK illegally or are foreign national offenders. The purpose of the new clause is exactly the same as the purpose of clauses 27 to 29, which is to minimise barriers to data sharing between agencies for immigration and law enforcement purposes. We table it in the spirit of the support I have already mentioned for the Government’s aims regarding data access.
If someone has entered the UK illegally or is a foreign national offender, law enforcement for their removal is vital and GDPR legislation should not stand in the way of being able to gather and establish any necessary evidence for use in immigration appeals or law enforcement. We wish to remove the barriers to data sharing in these cases, and we know the Government want that too. We hope that they will find the suggested new clause useful.
Dame Angela Eagle
I thank the hon. Lady for speaking to new clause 23. As she said, it seeks to disapply the protections afforded by the UK GDPR regulations to people who have entered illegally or who are foreign criminals. I think that would massively complicate data protection legislation, given that we would always have to keep an eye on who is a foreign national criminal or an immigration offender, over time as well as in the moment. That could make it harder to apply some of the data-sharing rules.
We believe that with the protections in clauses 27 to 29, we can get and share the information that we need to share, to its greatest effect, while protecting people from unlawful disclosure, without complicating things further by trying to check whether somebody is a foreign national offender or has entered the country illegally.
We have a strong history of maintaining high data protection standards. The legislation permits the use of personal data for legitimate purposes, such as immigration control, while giving the public the reassurance that such use will be subject to proportionate safeguards. Our approach will be to rely on the proportionate safeguards, rather than to disapply the entirety of data protection laws to certain groups of people who happen to be in our society at the moment. The proportionality test, with the focus on organised immigration crime, is important.
Becky Gittins (Clwyd East) (Lab)
Does the Minister agree that the lesson learned from the previous Government, with the blanket application of some seizure powers under the Illegal Migration Act being so complicated that they were not actually enforced properly—as we learned from one of our witnesses—is a cautionary tale illustrating why new clause 23 should be rejected?
Dame Angela Eagle
It is certainly a good idea to create legislation that can actually be commenced. Otherwise, we are just all having a fun time in Committee— I can see everyone agreeing with me—and not affecting the statute book, making it easier to do what must be done or enabling the law to help with that rather than having a gigantic problem. As a Minister, I am certainly in favour of enacting laws that we can commence, and I hope that we will be able to commence large parts of the Bill as soon as it has made its proper progress through both Houses.
The UK has a long history of maintaining high data protection standards. Complicating them by trying to disapply them for certain individuals who are in our society whether we want them to be or not implies that we would have to keep very up-to-date, regular records of every single person in the country to check their status. That sounds like ongoing identity checks across the whole population, and that is easier said than done. It is not Government policy, and I did not think it was Opposition policy either. Although the new clause is well meaning, it is a complication rather than an assistance.
Where the exercise of data subject rights, such as the right to seek access to personal data, could undermine the tasks, appropriate exemptions can be applied on a case-by-case basis. Disapplying data protection rules in a blanket fashion for certain groups is unnecessary and could disadvantage some of the most vulnerable people in society, such as victims of trafficking. On that basis, I hope that the hon. Member for Weald of Kent will not press new clause 23, with the reassurance that we think that these clauses give us the power to use big data and big data analytics in a way that is in keeping with data protection laws, the GDPR and the ECHR.
Katie Lam
I take the Minister’s points about practicality, but in situations where new clause 23 created additional complexity, the Home Office would retain the option to adhere to the GDPR if it wished to; it would just not be forced to do so. We really think that the provision would be a useful addition and we hope the Government will consider it further. However, we do not intend to press it.
Question put and agreed to.
Clause 27 accordingly ordered to stand part of the Bill.
Clauses 28 and 29 ordered to stand part of the Bill.
Clause 30
Supply of trailer registration information
Question proposed, That the clause stand part of the Bill.
Dame Angela Eagle
Clauses 30 and 31 concern the sharing of trailer registration information. Clause 30 creates a clear discretionary power for the Transport Secretary and, in practice, the Driver and Vehicle Licensing Agency to share some or all of the trailer registration information they hold with the Home Office, for specified purposes related to border security and law enforcement; the National Crime Agency and HMRC, for use in connection with their statutory functions; policing bodies, for purposes of policing law enforcement and safeguarding national security; and specified persons in the Crown dependencies and Gibraltar for purposes equivalent to their UK counterparts.
The measure is designed in recognition of the limited timeframes that law enforcement bodies have to review information and take decisions when risk-assessing thousands of lorry movements into the UK each day to prevent, detect, investigate and prosecute crime, and to conduct checks at the roadside. Border Force intends to use this information, alongside customs information and other information it holds, to develop a richer picture of vehicle movements and enable timely interventions. For the police, the National Crime Agency, HMRC and recipients in the Crown dependencies and Gibraltar, the value of the information will be realised via the law enforcement data service, which will provide it on demand at the point of need.
Tom Hayes (Bournemouth East) (Lab)
I am sure that if we cast our minds back to 2019, we will all remember the awful case where 39 Vietnamese migrants died in the back of a trailer in Essex. Reading reports of what people found when they opened the lorry, and hearing about people dying in excruciatingly painful ways, makes us all realise that everything we are doing is about trying to stop harm to vulnerable people and save lives. Does my hon. Friend agree that this group of clauses will make it easier for data held by DVLA on UK-registered trailers to be shared with our law enforcement and police, and that as a consequence we might be able to avoid more misery and loss of life in such excruciating circumstances?
Dame Angela Eagle
I certainly agree with my hon. Friend. That is at the higher end of the harms that one would hope could be prevented by more timely access to this kind of information. These clauses will ensure that those charged with securing the border and beyond can use the information in line with the range of threat types enabled by cross-border lorry movements such as the one my hon. Friend just mentioned, to ensure that the law enforcement community engaged in tackling organised immigration crime, and wider serious and organised crime, are able to tackle it at pace.
Clause 31 complements clause 30 by setting out how information received by the Home Office and the police may be disclosed onwards, with whom and for what purposes. Robust inter-agency and international co-operation is crucial to smashing the criminal gangs. Border Force routinely works with the National Crime Agency and the police for the purposes of criminal investigations connected with the smuggling of people and illicit goods, and with HMRC for customs purposes.
The police, in turn, need to be able to alert law enforcement partners to identify specific trailers of interest. Border Force and the police also need to be able to alert European law enforcement partners to intercept trailers where there might be a threat to life and in support of cross-border co-operation against illicit goods. This clause, subject to safeguards contained in clause 32, enables just such an outcome to be achieved.
Katie Lam
Clause 30 provides a power for the Secretary of State for Transport to supply trailer registration information to the Secretary of State for the Home Department for immigration purposes, law enforcement purposes, human welfare purposes, purposes connected with functions under the Proceeds of Crime Act 2002, protecting national security, and responding to an emergency. The information can also be shared with the National Crime Agency and HMRC.
We support the powers in the clause. As with the previous group of clauses, this is about being able to bring together the information held by different arms of the state to defend the border, and we wholeheartedly agree with that. I must confess that this is going to be a fairly friendly section of the afternoon, for which I can only apologise to all involved.
Clause 31 provides powers for the onward sharing of information in clause 30. It is important that that information can be shared with those exercising public functions, including those outside the United Kingdom. We also support the new powers in the clause.
Question put and agreed to.
Clause 30 accordingly ordered to stand part of the Bill.
Clause 31 ordered to stand part of the Bill.
Clause 32
Sections 27 to 31: general provision about disclosure
Question proposed, That the clause stand part of the Bill.
Dame Angela Eagle
This group includes clauses 32 and 33, which provide for safeguards with respect to the customers and trailer registration information-sharing provisions, which we have just agreed will stand part of the Bill, as well as providing clarity about the meanings of terms within those clauses.
Clause 32 makes general provision about the disclosure of information with respect to clauses 27 to 31. That is information held by HMRC in connection with its customs functions, as set out in clauses 27 to 29, and the DVLA’s trailer registration information in clauses 30 to 31. The clause does two things. First, it clarifies that clauses 27 to 31 do not limit how information may be disclosed outside of the scope of this legislation. It does not tie the hands of a named party to disclosing information subject only to the regime established here if another information gateway exists. Secondly, it clarifies that nothing in clauses 27 to 31 authorises disclosure where it would contravene UK data protection or investigatory powers legislation. In deciding on that, the clauses are to be taken into account. Clause 32 neither treads upon other legal regimes to disclose information outside of the scope of this legislation nor permits anything that would fall foul of existing statutory safeguards—a perfect, balanced approach.
Clause 33 makes provision for the interpretation of clauses 27 to 31—the terms used, their scope and limits. First, it defines the meanings of certain terms through direct definition and in reference to other legislation. Secondly, it seeks to capture all UK police forces and bodies that might be the end users of the information, referring to a “UK authorised person” and a “UK authorising officer” for the purposes of clause 30, and defining what it means in this clause.
The use of the terms “UK authorising officer” and
“the person under whose direction and control the constable…is”
avoids reliance on references to chief constable, commissioner and chief officer, because those terms have prescribed legal meanings that exclude the commanders of the very important ports police and the even more important Mersey Tunnels police, which rely on other ranks to command. That ensures that the definitions apply to everybody, whatever the force. The ports forces and the Mersey Tunnels police are an extremely important part of defending the border, for obvious reasons.
For “UK authorised person”, the term constable, which includes special constable, is used. The clause also refers to
“other person who is under the direction and control of a person who has the direction and control of a body of constables”.
Such is the poetry of legislative diction, but lawyers know exactly what that means. Instead of police civilian staff, or similar terms with prescribed meanings, we have that rather long and convoluted explanation, which includes everybody. That is because not all forces employ police staff subject to employment contracts. Some also use police volunteers. The MOD police uses civil servants in such roles, while the Police Service of Northern Ireland has powers to use civil servants separately from employed police staff. Use of “other person” accommodates all these cases, so it is all-encompassing, and I hope we have not missed anybody out.
Thirdly—this applies only to the trailer data—we have worked with the Crown dependencies and Gibraltar to identify persons undertaking statutory functions equivalent to their UK border security and law enforcement counterparts. We have defined them as a non-UK authorised person and specified them in a table along with the authorising officers.
Finally, the clause establishes a regulation-making power for the Secretary of State to define the meaning of specified purposes related to policing to ensure that the data requirements are met today and can be updated from time to time as operational requirements evolve. Such an extension would be subject to consultation with policing bodies across the UK, Scottish Ministers and the Department of Justice in Northern Ireland, and it would require the affirmative resolution of both Houses. With those reassurances, I hope members of the Committee will be happy to support clauses 32 and 33.
Katie Lam
Clause 32 makes general provision about the powers of disclosure in clauses 30 and 31. Subsection (2), as the Minister laid out, clarifies that nothing in clauses 27 to 31 authorises disclosure where it would otherwise contravene data protection or investigatory powers legislation. How much difficulty does the Minister envisage these provisions causing for the sharing of information? I seek reassurance—she has offered some already—that the safeguard will not frustrate legitimate data-sharing activities. Clause 33 defines key terms included in clauses 27 to 31, and we have no problems with it.
Dame Angela Eagle
I reassure the hon. Lady that we do not envisage the definitions causing any practical problems with data sharing and the powers defined in clauses 27 to 31.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
Clause 33 ordered to stand part of the Bill.
Clause 34
Provision of biometric information by evacuees etc
Question proposed, That the clause stand part of the Bill.
Dame Angela Eagle
Clause 34 is critical to the Government’s ability to manage crises and support evacuations effectively. Where the UK Government are considering or have facilitated an individual’s departure from a country in crisis, it is essential to lock in identity and conduct necessary biometric checks at the earliest opportunity, for obvious reasons. Clause 34 ensures that there is a clear legal framework for collecting biometric information outside the UK in these exceptional circumstances. The clause includes important safeguards, particularly for children, to ensure that biometric data is collected responsibly. The provision reflects the UK’s commitment to maintaining both security and efficiency in high-risk international evacuation situations.
Katie Lam
Clause 34 provides a power for an authorised person to take biometric information when the Government are in the process of facilitating their exit from a state or territory. The purpose of the power is to ensure that only those who qualify under particular evacuation schemes are able to come to the UK. The power to take biometric information should help to verify identity and conduct screening checks, as individuals in these circumstances are often undocumented. We fully support the provision.
We would be interested to hear more about whether the Government intend to take further action on biometrics, which could be brought about through the Bill. Countries such as Dubai and Singapore are investing in biometric entry and exit systems, as is the EU. The UK does not routinely capture biometrics at the border, although with the new UK electronic travel authorisation, we will collect digital photographs of all non-visa nationals, with the option of retaining fingerprint scans.
We are aware that there are logistical and financial challenges to enabling Border Force to collect biometrics routinely from all passengers on arrival and departure, but there are also substantial benefits, including helping to match illegal migrants and asylum seekers leaving the country, thereby giving a clearer picture of those who are overstaying through more accurate migration figures. We would be interested in hearing how the Government are thinking about biometrics more broadly in the context of their not extending the power to capture biometrics more widely in the Bill.
Dame Angela Eagle
Working out the potential for electronic borders and a more sophisticated approach to the hundreds of millions of journeys that cross our borders every year is an important part of the day job of my hon. Friend the Member for Feltham and Heston. This is a more limited clause, but we are certainly investigating the potential, costs and benefits of a much more digitalised border. We are not about to introduce that through this Bill, but there will be more to be said when that work has been done in due course.
We understand the potential for making border crossings much more convenient for everybody while having more robust information about who has crossed borders, and when and where they were crossed. Some of this is about goods, trailers and a range of other things crossing borders, and ensuring that we have information on when people smugglers and clandestines cross borders, too.
Tom Hayes
I note that clause 34(3) sets out the requirement for an authorised person only to take biometric information from a child under the age of 16
“in the presence of a person aged 18 or over who is—
(a) the child’s parent or guardian, or
(b) a person who for the time being takes responsibility for the child.”
Does the Minister agree that we ought not to disapply the requirement for consent on such tests for children who are under the age of 16?
Dame Angela Eagle
It is important that we uphold standards and have those requirements, which is why the clauses we are debating do that. These clauses deal with the need, in an emergency situation, to evacuate people who are British citizens and/or people who live in families that include British citizens. It is about being able to get them to safety but, at the same time, to collect biometric information so that we can check who they are. It is much more effective for us to do that at the earliest opportunity rather than getting them to the UK or on UK territory and having to do it then. That is why the clauses will put us in a much better situation from the point of view of identity and security checks, if there is an emergency evacuation of British nationals from a particular place in the future, which we hope will not happen.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35 ordered to stand part of the Bill.
Clause 36
Provision of biometric information at ports in Scotland
Question proposed, That the clause stand part of the Bill.
Dame Angela Eagle
Clause 36 will enable the biometrics of persons detained in Scotland under schedule 8 to the Terrorism Act 2000 and schedule 3 to the Counter-Terrorism and Border Security Act 2019 to be taken at ports, thereby bringing the position in Scotland into line with that in England, Wales and Northern Ireland.
Those schedules allow an examining officer—a constable, or a designated immigration or customs officer—to stop, question, search and detain a person at a port, or at the border area in Northern Ireland, for the purposes of determining whether the person appears to be a person who is, or has been, engaged in terrorism or hostile activity. An examining officer may stop and question a person whether or not there are grounds for suspecting that the person is, or has been, engaged in terrorism or hostile activity. Those are important powers that allow counter-terrorism police officers to detect, disrupt and deter terrorism and hostile activity at the border.
The powers for taking biometrics in Scotland are contained in paragraph 20 of schedule 8 to the 2000 Act and paragraph 42 to schedule 3 of the 2019 Act. Clause 36 amends those paragraphs, removing the unnecessary restriction unique to Scotland that requires that those detained under those powers are taken to a police station to have their biometrics taken. The clause will allow biometrics to be taken much more easily and quickly in situ, rather than the person having to be transported to a police station.
Katie Lam
Clause 36, as the Minister has laid out, extends biometrics powers to ports in Scotland. As we understand it, immigration enforcement already has the power to take biometrics from people arrested in the UK, including at ports, if they are suspected of having entered or remained in the UK illegally. How does the Minister think that the clause will add to existing operational powers?
Dame Angela Eagle
It is a lacuna in Scotland rather than a problem elsewhere. It is simply that, in Scotland, biometrics cannot be taken except in a police station. In his 2020 report on the operation of the Terrorism Acts 2000 and 2006, the independent reviewer of terrorism legislation recommended that we address the issue. We saw the Bill as an opportunity to deal with what is obviously an unintended kink, so we are ironing it out.
Dame Angela Eagle
At the moment, under Scottish law, biometrics—in this instance—must be taken in a police station. Everywhere else, they can be taken in situ. We are just bringing the situation in Scotland into line. It is a minor change, but it will have an important practical effect.
Question put and agreed to.
Clause 36 accordingly ordered to stand part of the Bill.
Ordered, That further considered be now adjourned.—(Martin McCluskey.)