Serious Crime Bill [HL]

Baroness Hamwee Excerpts

Monday 16th June 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I confess that I am at a loss. For once, I am not struggling to ask apparently innocent questions as a painful way of masking criticism. My scepticism has also been confounded because so often legislation is added to the statute book when the offences have already been defined and measures have been put in place. I am not a fan of using legislation to promote a message, but the Bill does seem to be about filling lacunae, and I congratulate the Minister and the Home Office on that.

That does, however, make it rather difficult to find a thread running through it on which to base my remarks today. No doubt a theme common to all the issues covered will be—as has already been said—that legislation cannot do everything and that good practice is fundamental. I know that the House will do what it does so well, which is to focus on workability. I am very glad that the Bill has started at this end and I thank the Minister for his introduction.

My noble friend Lord Thomas of Gresford talked quite a lot about tracking down and recovering the proceeds of crime in the context of legal aid. He kept saying, “Just find the money”. The Bill cannot assist investigative skills and I am aware from another part of the legal forest—matrimonial work—of the resourcefulness that some people use to conceal their assets. HMRC is pretty good at ferreting out where assets have been hidden.

I am a bit uneasy about using taxation as a sanction—perhaps this is the “Al Capone” clause. I am not entirely sure that I understand the tax provisions. Is there to be a tax assessment when the source of the income cannot be identified but comes under the spotlight as perhaps coming from criminal assets—my civil liberties antennae are twitching slightly—or are we levying a percentage at the marginal rate on income rather than on the whole of the income-producing asset? We will ask questions in Committee. While my antennae are still active, I note from the material I read from the Home Office that the Crown Court must determine whether the defendant has a “criminal lifestyle” and is to apply the balance of probabilities in assessing whether there is “general criminal conduct”. I can see some questions arising from this.

I welcome the priority given to the victim surcharge and compensation, and the use of the assets. I was reminded by a case study in the material provided by the Home Office—for which I and other noble Lords will be grateful—that we are not dealing with the proceeds of crime in a vacuum: it is the crime itself which we seek to reduce or eradicate. That case study could also be a case study from material for the Modern Slavery Bill. It is the underlying crime that makes these provisions so important. But that will not stop us examining, for instance, the Secretary of State’s powers to amend provisions regarding default sentences; and Clause 14, which allows the Secretary of State to amend primary legislation. I was guilty of the perhaps unworthy thought that parliamentary counsel had simply not had enough time to produce the substantive provisions which the Government have in mind. If not, do the Government intend to produce a draft order so that we can understand what they have in mind here?

As for organised crime groups, the current money-laundering rules are a burden on professionals, and Part 1 might add to that. I am aware that another policy aim of the Government, of course, is deregulation. We have had briefings, from the Law Society and the Institute of Chartered Accountants in particular, about Clause 41 and organised crime groups. Prejudice is often expressed against fat cat lawyers. There may be some, although many are very lean, and there may be some lawyers and accountants who are not straight, and I do not defend them. However, there seems to be a lot of justified concern about how this clause will work. We are told that there has been no prior consultation, so the most important question for now is what plans the Home Office has to engage in discussion with the professional bodies. Everyone has an interest in this provision working well.

Before I received the briefings, I was concerned about things such as the burden of proof, serious crime prevention orders as prevention without a conviction, and the definitions. Like the noble Baroness, Lady Smith, I thought that the meaning of the term “helping” in the context of criminal activities could be taken to absurd extremes. Perhaps the question about gangs is how successful the gang injunctions have been so far and their relationship with joint enterprise. A criminal group seems to be three-plus, so more are needed for joint enterprise. Only 25 of the 33 local authorities who are in the Ending Gang and Youth Violence programme responded to the data request. Is this an indication that they are under enormous pressure and are underresourced, because this is described as a “potentially beneficial tool”? Intriguingly, we are told that gangs can disappear from the radar in one area and reappear in another. Do the Government intend to produce guidance on what enables those people to be identified as being the same gang? We will deal with what constitutes harm to children. This made me wonder whether gang-related violence included psychological harm. I am thinking of vulnerable youngsters—particularly how girls may be used by gangs, becoming part of them but being victims of them at the same time.

I am delighted that the noble Baroness, Lady Meacher, is taking part in this debate, because she always has such sensible things to say about drugs policy and drugs legislation. I accept the need to deal with cutting agents; their use is pernicious in several different ways. The responses to the Government’s consultation on this mentioned legal clarity, but I can see evidential issues raising their heads as well. I wondered about the equipment used for cutting agents. Do they—I am sorry, I cannot now avoid the pun—warrant attention as well as the agents themselves?

As regards children, the House sometimes has a tendency to divide into sort of a Bill half full/Bill half empty approach. It is very likely that the part of the Bill on the protection of children will attract proposed additions, as it gives an opportunity for colleagues to pursue their often very justified concerns. My noble friend Lady Walmsley, who has been unable to change her arrangements for this afternoon to be here, already has an amendment, agreed by the Public Bill Office to be in scope, that would make it a duty for people who work in regulated activities with children or vulnerable adults and who suspect abuse to report it to the local authority.

The change to the Children and Young Persons Act 1933 to spell out that harm includes psychological harm is the result of sustained work by many NGOs and the Private Member’s Bill from my honourable friend the Member for Ceredigion. It is blindingly obvious to us in the year 2014, but the same issue of what is meant by harm arises in other legislation. It has been addressed recently in the context of domestic violence but outside statute. In that and other contexts, I confess that I am concerned that psychological and emotional damage may be regarded as excluded by implication, since it is to be explicitly included in this case.

Noble Lords will have received briefings from children’s organisations on other possible changes to the 1933 Act. I find quite persuasive the argument that the term “wilful” to describe actions is very narrow. Again, I wonder about guidance and the CPS’s view. It is important that the language that is used carries its natural meaning, so that it is easily used by practitioners.

There is also the issue of the age bracket for victims, possibly taking it up to 18. I doubt that anyone who has had more than fleeting contact with teenagers could argue that they are more resilient than younger children, as has been said. I, too, was horrified by what I read in our briefing about the paedophile manual. I was surprised that it needs specific provision, but for the moment I will just ask whether internet service providers have been consulted on Schedule 3.

All the legislation in the world will not deal with the deeper-rooted cultural issues surrounding female genital mutilation. The Government, I know, are very well aware of that and have been very determined in their approach. I count the Member for Hornsey and Wood Green as a real friend and a long-standing colleague as well as an honourable friend, and I can vouch for the activity that she, among many others, has undertaken.

I end with a positive story. I was at a meeting on Thursday, in the margins of the Global Summit on Ending Sexual Violence in Conflict, with a number of Members of other parliaments. A representative from Portugal recounted a tale of the boyfriend of a potential victim protesting and campaigning against the abuse. In a gloomy subject, I thought that was a cheering report.

There may be a common thread to this: that practice is important and that being alert to what technical changes are indeed necessary to implement existing policy is something on which we can profitably use our time.

Passport Office

Baroness Hamwee Excerpts

Thursday 12th June 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the government website still shows the waiting time as being generally three weeks. Are the Government considering putting updated news on that website so that the public are aware of the position? The Post Office is another route to obtaining travel documents. Is it experiencing extra demand? Has there been an impact on Post Office services and on its level of work?

[Lord Taylor of Holbeach]

I cannot answer with specific information on the latter point, but I can say that, even at this point, 97% of passports have been issued within three weeks and 99.24% have been issued within a four-week period. None the less, because of the large number of applications, small percentages can mean large numbers of people whose lives have been inconvenienced. That is why the Passport Office is working seven days a week and efforts are being made to ensure that people are not inconvenienced. The Home Secretary’s Statement made that quite clear.

Queen’s Speech

Baroness Hamwee Excerpts

Monday 9th June 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I thought that after about 50 speakers, a change of pace might be welcome. I had planned to read to your Lordships the poem “Deportation”, by Carol Ann Duffy. The time constraints mean that I can only give noble Lords a taster:

“Love is a look

in the eyes in any language, but not here,

not this year. They have not been welcoming.

I used to think the world was where we lived

in space, one country shining in big dark.

I saw a photograph when I was small.

Now I am Alien”.

We do not have an immigration Bill; we will have rules—we seem to get new Immigration Rules almost every week. I will continue to raise the problems of restrictions on family migration, although not as effectively as the Poet Laureate. I note the irony of those restrictions, and how families are split up when according to the Queen’s Speech we are to have tax benefits for married couples—support for marriage.

Without a Bill, there is still a lot to be said about immigration. From the negatives, last week a report from the Chief Inspector of Prisons said that deportees are treated as commodities by security staff; and from the positives, recent reports on immigrants’ contribution to the economy have come from the Office for Budget Responsibility, the OECD, and the Institute for Fiscal Studies.

By way of legislation we have the modern slavery Bill, to which many noble Lords referred, which is one of those Bills which we will all welcome and strive to make even better. The focus, as other noble Lords have said, has tended to be on the trafficking of children and young women for sexual exploitation. I agree with the points made by other noble Lords that it is important to extend our focus to all victims: domestic workers, boys and young men, vulnerable people, and people who have left the services. I very much welcome the comments made by the pre-legislative scrutiny committee on supply chains.

Of course, legislation is not everything, as other noble Lords have said. We need to increase support for victims as witnesses and to help them rebuild their lives. I very much liked the phrase of the right reverend Prelate the Bishop of Chelmsford that we need affirmation to live well. There is the functioning of the national referral mechanism, the work of witness protection, the work and resources necessary for social services and for the criminal justice system—in that case, how it operates—and not criminalising victims. I know that the Government are very well aware of those and other issues. The challenge is to achieve changes in practice. The right reverend Prelate the Bishop of Derby asked whether we can afford all this, or at least said that that would be the question. Is not the question: can we afford not to focus on this?

This week the Government are hosting the Global Summit to End Sexual Violence in Conflict—an admirable initiative. Some of the issues to which I have referred are the international ones found in different contexts, including the appropriate response by authorities and services, identifying victims as victims and treating them appropriately. As the right reverend Prelate the Bishop of Carlisle said, I have decided to refer only to the Bishops’ Benches in my speech.

We recently debated problems police forces have in recognising victims of domestic violence—there is a read-across there. The Howard League recently reported on children within the criminal justice system. It told us that a child was arrested every four minutes in the past year in England and Wales and recommended a reduction in arrests for trivial matters. That is a matter of appropriate responses.

It is ten to nine now and we will be back in less than a week to debate the Serious Crime Bill. I will not say more now than that I welcome, as others have done, the statutory recognition of psychological injury to children, putting it on the same footing as physical injury. It is extraordinary that it needs to be spelt out but clearly it does, as was done—again I mention domestic violence—some months ago.

It seems it is also necessary in terms of legislative lacunae to add to our laws on female genital mutilation. I cannot help noting that this is just a few days after the deportation of Afusat Saliu and her daughters whom she was seeking to protect from FGM in Nigeria.

I had planned to ask the Minister about the extremism task force which started last year after the Woolwich murder to such fanfare and then went very quiet. However, there seems to have been something of a coda or possibly even a new movement in that. It is extraordinarily important to be open-minded and imaginative in addressing the issues around extremism and radicalisation. I guess that many NGOs have less baggage than government institutions in the eyes of the individuals at risk. The NGOs need to be supported.

I wonder whether the time has come to consider extending the role of the independent reviewer of terrorism legislation whose experience might well be used more proactively. Above all we need to talk—Northern Ireland showed us that at home. There must be so many different personalities among the boys and young men at different stages of their development—such a range of reasons for their conduct. Legislation, in itself, will not persuade them to buy into the rule of law. We must be prepared to take risks. It was brave of the American Government to exchange prisoners they were holding for the US soldier whom they retrieved last week.

My Lords, I have one more stanza:

“They are polite, recite official jargon endlessly.

Form F. Room 12. Box 6. I have felt less small

below mountains disappearing into cloud

than entering the Building of Exile. Hearse taxis

crawl the drizzling streets towards the terminal.

I am no one special”.

Crime: Domestic Violence

Baroness Hamwee Excerpts

Tuesday 13th May 2014 Grand Committee

[Baroness Hamwee (LD)]

My Lords, Refuge has been mentioned, so perhaps I should declare an interest as a past chair. I learnt a great deal from Sandra Horley.

Sticks and stones may break my bones but words will for ever haunt me, perhaps break my spirit and even my mind. The impact of non-physical behaviour is often less evident to other people. “How did you get that bruise?” “Oh, silly me, I walked into a door that I didn’t see was open”—not “I didn’t understand and escape the dynamics of a dysfunctional relationship”. Both are manifestations of controlling behaviour, as other noble Lords have said, and have a great deal in common, including the ever present fear of when it will break out, reducing the victim’s capacity to cope with it, being demeaned and diminished.

It is not just words, though. The briefing which we have received from the organisations just mentioned by my noble friend Lady Jenkin of Kennington listed relevant behaviours. Reading that list, I thought, “Where have I seen some of these before?”, such as sleep deprivation and the use of extreme stressors such as rape. There are a number of behaviours in this list which, if they were undertaken by someone in an official capacity, could well be regarded as torture under international law.

Domestic violence has risen up the public consciousness but, as the HMIC report said, the overall police response is not good enough. It talked about it being a priority on paper but, in the majority of forces, not in practice. One of the factors identified was officers lacking skills and knowledge. It is easy to understand how much more straightforward it is to identify a single act of physical brutality than insidious and brutal courses of conduct, still less when this is not immediately evident with a physical outcome. I do not underestimate the problems of evidence, and I agree with quite a lot—not everything—that my noble friend Lord Lester said, particularly about the use of the existing law. Let us use what we have got unless it is clearly inadequate. The work on stalking the year before last indicated that there was an inadequacy, and led to a change in law. However, if it is not inadequate then I for one am not enthusiastic about some sort of duplication. However, having conduct identified and tagged as criminal is very important, as my noble friend Lord Paddick has said.

One of the recommendations of the HMIC report was about the views of victims as an essential element in monitoring police effectiveness. The report said that the Home Office should ensure that the views of victims of domestic abuse are incorporated routinely and consistently into national monitoring arrangements. I ask my noble friend the Minister—if he cannot answer it today perhaps he could write; one has picked this up in thinking about it and he may well not have a briefing on it—how are the views of victims to be included in the monitoring process if they do not report? How do you find the victims? How do you get at their views?

One of the things that have helped raise awareness over a period of perhaps 20 years is when victims’ experiences are made real in fiction through popular culture. Those of us whose soap of choice is “The Archers” are witnessing one character’s charm turning into control at the moment. I congratulate those who work in the media and who bravely—because this is not always welcome—include such storylines. However, all this is important, not just for raising general public awareness but because it gives victims the confidence to identify, recognise and articulate that what they are suffering is not normal; it is abuse, and it is a crime.

Immigration Bill

Baroness Hamwee Excerpts

Monday 12th May 2014 Lords Chamber

[Baroness Royall of Blaisdon (Lab)]

I wish to speak on this amendment—forgive me for being so tardy—as I just wish to place certain things on record.

I support the amendment tabled by the noble and learned Baroness, Lady Butler-Sloss, and am deeply disappointed and irritated by the amendment tabled by the Minister. While the noble Lord has just set out his reasons for not accepting the original amendment tabled by the noble and learned Baroness, the only reason given by the House of Commons was one of financial privilege. As has been said on other occasions, when the Government use financial privilege as the reason for rejecting amendments in the Lords, it too often looks as though the Government simply do not have sufficiently strong arguments to counter the just and moral reasons given by the Lords. Yes, I well understand that it is the Speaker who decides whether or not financial privilege should be applied, but the Government could have asked the House to waive financial privilege and chose not to do so.

This is frustrating for us but, more importantly, it has real implications for the small number of vulnerable children who are subjected to the evils of trafficking. These children have suffered the worst kind of traumatic experiences and they are desperately in need of a guardian, appointed on a statutory basis, to accompany them,

“throughout the entire process until a durable solution in the best interests of the child has been identified and implemented”.

On the subject of financial privilege, I ask the Minister to provide us with the Government’s computation of the predicted costs of the amendment that was rejected in the Commons.

Again I place on record my thanks for the extraordinary diligence and dogged determination of the noble and learned Baroness and the noble Lord, Lord McColl of Dulwich, to get justice for trafficked children. I also say to the Minister that I still do not understand why the Government have been so reluctant to act before now, why they could not have agreed to amendments in earlier Bills and why there was no provision for guardians in the draft modern slavery Bill. I know that pilots have now been announced, but if that has been the Government's intention for some time, why was there not an enabling clause in the draft Bill? I am pleased that the Government clearly now intend to introduce an enabling clause by amendment, but they could have done so much more.

In the absence of the amendment passed by this House, an enabling clause in the modern slavery Bill is welcome, but what would trigger that enabling power? Despite what the noble Lord just said, I am still slightly concerned about the statutory basis for the scheme. I want to be absolutely clear that, when a guardian feels the need to give instructions to a lawyer where a child is incapable of doing so, that lawyer will have the statutory basis to be empowered to represent the views of that child. Can the Minister give that assurance?

I also have a question about the timings. Could the Minister confirm that the trial will start on 1 July? Could he further tell the House when the pilots are due to end? As he would understand, it would be unacceptable if, when it came to the report that is in the amendment of the noble and learned Baroness, the Government were able to say that they had not had time to assess the outcomes of the pilots. I want to ensure that the timescale works.

The Minister in the other place said that the trial would cover 23 local authorities. Will all trafficked children be placed within those authorities, so that all trafficked children are covered by the trial?

I will mention one thing that may seem a bit pernickety. I was slightly concerned by some of the reasons given by the Minister in the other place for rejecting the noble and learned Baroness’s earlier amendment. He said one reason was that it dealt only with children under immigration control and that he wished in the modern slavery Bill to craft provisions covering all trafficked children. Of course, there was nothing to prevent the Government accepting the amendment and then repealing the provision if necessary when replacing it with a clause in the modern slavery Bill.

As I said, I welcome the fact that the Government are now introducing an enabling clause, but I am frustrated that it has taken such a long time. I am also rather frustrated that, in the end, the Government took the advice from the Speaker that financial privilege should be attached to this specific amendment. Sometimes, of course there are questions of money but in this case the money is negligible. Sometimes there are questions of politics but this issue has had cross-party support throughout. I am just frustrated that it has taken so long to get to where we are. Of course, I trust what the Minister said. I just seek clarification on the various questions I asked.

[Baroness Hamwee (LD)]

My Lords, I note that at the last stage the noble Baroness and I both used the term “dogged” to describe the work done by those who advocated—if that is not the wrong term in this context—the guardianship provisions. I sense that the House would like to move on as there is so much agreement, so I will go straight to the one question I have left of those I had on the amendment.

There is a difference, in the normal understanding of the terms, between “advocacy” and “guardianship”. They are not the same thing. Of course, the detail of the role will be described when we come to the legislation so we will then understand just what it will cover. No doubt we will discuss that. The one question I have left for my noble friend that has not already been asked is: how will the Government assess and evaluate the trials or pilots—whatever we call them—including assessing the need for the provisions that are not included in the trial? The noble Baroness mentioned the one about being instructed and being able to carry out instructions, which I was also concerned about that because of my own professional background. If the trials do not cover a part of the role, how are we going to know whether that role was necessary? I hope my noble friend can explain what the approach to the assessment and evaluation will be.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

There can be all manner of speculation about whether, if someone was born in, for example, Somalia but left at the age of three, Somalia might afford citizenship to them. Would Somalia give them citizenship in such circumstances if Britain had removed citizenship on the basis that they were a threat to national security here? Would Pakistan? Would Syria? Would Egypt? The test of reasonable grounds for believing that the person would be able to acquire another nationality does not answer that question. What if they cannot do so? That is the question that my noble friend Lady Smith raised, and at the moment it has not been answered satisfactorily. I wait with interest to hear what the Minister says.

There is a second matter: what constitutes service? It ties in with the point raised by the noble and learned Lord, Lord Hope. What constitutes service when somebody is abroad? Is it good enough to serve notice on relatives living in Britain? Why should it be assumed that they would be able to inform adequately a person who is living somewhere else that they have had their citizenship removed? I would be very interested to hear the Minister’s response to what constitutes service. If someone is in a place such as Syria or Somalia, what is the likelihood of being able to serve notice—in the way that we understand service normally in law—on somebody in a war-torn area or a place where there is chaos and little in the way of government as we understand it?

What do we do about the issue of appeal, which was just mentioned by the noble and learned Lord, Lord Hope? At the moment, the normal period for appeal in the rules of citizenship is 28 days, and nothing suggests that that would change. Is someone in Somalia expected to be able to appeal within 28 days, not having been in receipt of service but having been informed days before, over a very poor telephone line, that they have the right of appeal but time is about to run out? What is the answer to the question of the appeal period?

If a person is unable to acquire another citizenship, will the withdrawal of citizenship then be negated? Will it fall away, and will the person then reacquire their British citizenship? Are we giving that as a guarantee? Will we see reinstatement if no other state is prepared to follow through?

I ask those who are international lawyers, or international lawyers advising the Government: when someone has a right to citizenship, is there not always a level of discretion in a state to say, “Yes, you are entitled because you were born here, but then you went away and you became a British citizen, but we are not going to allow you to apply and become a citizen of this country now because we believe that there is intelligence of your conducting yourself in a way that might be inimical to our national interests”? The question is much more complicated than is being suggested by the way in which the Government are seeking to appease us at this moment. That is why those of us who were concerned about this issue wanted there to be a much more considered review before the law was changed. I fall in line with others: I should like very clear answers to some of the questions raised by the noble Lords, Lord Pannick and Lord Macdonald, and by the noble and learned Lord, Lord Hope, and to the questions that I have raised, before I would be satisfied that the movement by the Government has been far enough.

This is an issue of high moral import. This is an issue that affects not only us here, but which will be looked at around the world. There will be implications for people in other parts of the world, too. I ask the Government to take great care over the answers that are given because, as we have heard from others, courts will deal with applications, appeals and reviews based on some of the answers given today.

[Baroness Hamwee]

My Lords, noble Lords will be glad to know that I will be as energetic as I can in editing my remarks to exclude questions which have already been asked. However, I retain some points and concerns on the amendments, including on the principle.

Questions have been asked about what is meant by being “able”, and also about the practicalities of the matter. The Minister in the Commons said: “I am sure that”, the Secretary of State,

“would … have to consider practical issues and the other surrounding circumstances … She will, therefore, wish to consider those other practical or logistical arrangements as part of her determination”.—[Official Report, Commons, 7/5/14; col. 193].

Can my noble friend give the House assurances as to how all that will actually be reflected in statute or, if not in statute, then in guidelines? I mention here the guidelines published by the UNHCR on statelessness, which specifically refer to the application of nationality laws in practice being,

“a mixed question of fact and law”.

On the right of appeal, the noble Lord, Lord Pannick, has said that he trusts that there will be an assurance that the issues will be dealt with as open evidence. I add to that, while having the same hope, that if there are aspects which cannot be dealt with openly, will the provisions—I do not much like them, but they are what we have got—on gisting and special advocates apply? I have seen some doubt as to whether that would be the case.

On the amendment for review, I am glad that the Government have tabled this, as I did both in Committee and on Report. However, I stressed then the importance of independence. That term is missing from the Government’s amendment. Perhaps I can put it this way to my noble friend: can he confirm unequivocally that the review will not be in the hands of somebody who is within the Home Office?

Like others, I would welcome this being a matter for the independent reviewer of terrorism legislation. Concern has been expressed about resources, but whoever does the job is going to need the resources to do the job. I, too, have a question about why, after the first year, it should be triennial. If we are dealing with small numbers, then the job should be correspondingly small. I also ask the Minister to give us an assurance that the Government will support the reviewer undertaking more frequent reviews if he considers that they should be undertaken.

In debate, we have barely touched on the impact on communities of whom an individual in question is a member. I would support the appointment of the independent reviewer of terrorism legislation, because that postholder deals with people who are in rather connected situations where other measures might be applicable—and, indeed, might apply if deprivation is not to be used. It is clear that there is a danger that the use of the state’s powers, which focus on neutralising—if that is the word—the individual without considering the negative effect on the community, is an issue, as well as the specifics for the individual and their family. I am sure that the independent reviewer would focus on that as well.

[Lord Taylor of Holbeach]

My Lords, this has been an extremely good debate: a serious one, on a very serious issue. We have been fortunate to be able to hear from a large and well qualified body of the Members of this House. I am grateful to all noble Lords who have spoken, and I will do my best to provide those assurances that have been sought by noble Lords. The noble Lord, Lord Pannick, in welcoming the Government’s move in tabling their amendments in the Commons, wanted assurances. I am most grateful to him for letting me have sight of the things he was concerned about so that I was able to address them. I can say the same of my noble friend Lady Hamwee, who did not raise all the issues she had intended to because they had been raised by other noble Lords. However, I think that that most noble Lords have a similar need for reassurance, and I am well aware of the responsibility to provide that assurance to Members of the House.

Perhaps most important is the whole question of the meaning of “reasonable grounds to believe” and whether those reasonable grounds of belief are appropriate for determining the ability of a person to acquire another nationality. The Home Secretary’s decision must be “reasonable” based on the evidence available to her on the nationality laws of those countries and the person’s circumstances. That will include having regard to any practical arrangements, but those will vary from case to case, and it is not possible or appropriate to speculate about what weight those issues would carry in a particular case. “Satisfied” has been interpreted to mean that SIAC decides for itself whether a person is a dual national. In some circumstances a person, after being deprived of British citizenship, may take steps which guarantee that another country will not recognise him or her as a national. The appeal should therefore review the decision at the time it was made, which is why the phrase “reasonable grounds to believe” instead of “satisfied” is used.

Both the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy of The Shaws, asked what the position would be if the foreign state had some discretion in whether to approve an individual’s request for citizenship. I think that the noble Baroness went as far as to say that she thought that there were likely to be grounds for discretion in almost any case. The clause refers to whether under the laws of a country or territory a person is able to acquire the nationality of that country. The key issue will be whether the Secretary of State reasonably believes that they are able to acquire the nationality. It does not say that the person must have a right—an automatic entitlement—to that other nationality. Where there is a discretionary judgment there may be reasonable grounds to believe that the discretion will be exercised. However, reasonableness would require something more than saying that the person should apply for the exercise of a general discretion to grant citizenship to any country that has such discretion. I hope I make myself clear on that. The Home Secretary must have reasonable grounds to believe that, at the end of any application process—if one is required—the person will become a national of another country.

Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2014

Baroness Hamwee Excerpts

Monday 12th May 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have difficulties with both the substance of the order and the amendment. It seems that we may be in a world of policy-based evidence and an amendment that is being brought to the House because the Opposition are looking for something to object to without objecting to the ban itself. The matters identified in the amendment seem to be good reasons to oppose the ban, but the Opposition support it.

The ACMD not only recommended no change in the status of khat—that it not be controlled under the Misuse of Drugs Act—but set out a number of other recommendations dealing with local needs assessments; education and prevention initiatives; culturally specific and tailored treatment and recovery services; partnership working; addressing the problems through engagement and dialogue with the local community and interagency working; working through community safety partnerships; and regular monitoring and returns. It also made a specific recommendation about data to form the basis of future research. Those would themselves have formed a very good amendment, but that is not what is before us.

The ACMD was quite clear on the merits of the ban. The Secretary of State, on the other hand, seems to be saying—if I can summarise it—that since it is banned in the rest of the EU, it must be banned here. The ban was announced last July. Will the Minister tell the House what evidence there has been of the drug’s use since that announcement? Some time has now gone by. Indeed, it has been banned in the rest of the EU since January of last year, so if there are concerns, some of those might have come to light.

One of the reasons that we are given for the proposed ban is the risk of this country becoming a regional hub or a haven for criminals. I was interested to read some of the characteristics of khat, one of which is that it has a very short life. The active ingredient declines a couple of days after being picked; it needs to be fresh for it to have an effect. I have no doubt that the users of it, as consumers, are as demanding as consumers of most products, so is it a genuine concern that we would become a regional hub, if what might be distributed through the hub has, in fact, lost its efficacy by the time it is traded on?

The risks identified from a ban include the users moving towards more addictive, harmful and expensive substances; a black market; and organised crime stepping in to supply the drug and criminalising—inevitably—the users. I appreciate the proposals about applying an escalator to how offences are dealt with, but we would be criminalising users and suppliers, and we know that one crime leads to another.

Of course, I am aware that the Minister in the Commons and the Home Secretary, in her response to the Home Affairs Select Committee, have presented the matter as finely balanced, and that the communities where use is widespread are divided. Looking at the reports, I have been wondering how broadly women in those communities want a ban and men do not. I wonder whether that is rather simplistic reporting. I find it difficult to believe that a ban would instantly lead to such a considerable behavioural change and make model husbands of former users. I have my doubts about that. There is one view that clearly comes from the Somali community, and that is that they would prefer their children to use khat rather than alcohol or tobacco. The ACMD has reported that the use of khat has been decreasing over recent years.

In the Commons, there was very little discussion—nothing from the Minister, I believe—about the broader issues of drugs policy or the wider context, to which reference has just now been made, of the economy of Kenya and the potential instability and risks associated with that. I would be very wary of banning something of cultural significance, with the risk of driving a wedge between the police and the already quite marginalised communities. The references in the reports to the use of khat at weddings made me think of sugared almonds at weddings in some other traditions and how one might respond to any suggestion that that tradition be changed. In summary, I am not persuaded by the orders, but I am not persuaded by the amendment: I would leave the balance as it is.

[Baroness Meacher (CB)]

My Lords, I support the amendment to the decision of Home Secretary to ban khat under the Misuse of Drugs Act 1971, although I identify with the comments of the noble Baroness, Lady Hamwee, in relation to the amendment. There are very good reasons to oppose this ban. I make clear at the outset that if khat presented a serious health risk to users, I would support a ban on the importation and sale of the substance. On the other hand, we now have sufficient evidence to show that banning the possession and use of psychoactive substances—even dangerous ones—is counterproductive. Of course, the excessive use of khat by small groups of Somalis needs to be tackled; the question is how. We know that bans on possession and use delay treatment. They divert resources away from public health and education initiatives and into the criminal justice system. We also know that a criminal record is extremely damaging to anyone’s employment prospects. The criminalisation of these people will therefore tend to lead them to continue with their drug habit or—if they ever get away from it—to return to it. There are very severe and negative consequences of banning, particularly on the consumer side.

That is the evidence framework within which I have thought about the Home Secretary’s decision to ignore the advice of the ACMD and ban not only the supply but the possession and use of khat. This is a most serious decision for the communities involved, people principally from Somalia, Yemen and Ethiopia. The small but vociferous group of campaigners from Somalia believe that a ban on khat will get rid of the problems as they perceive them—social problems within families and so on. In reality, those using khat will continue using the substance at a vastly increased price. The Home Affairs Select Committee’s ninth report suggested that a hundredfold increase in price could be expected from a ban on khat. The khat user who continued to use khat would also risk, as I said, a criminal record. The alternative, to which other noble Lords have alluded, is that khat would be replaced by alcohol in particular. We know that alcohol is far more dangerous and would have all sorts all sorts of consequences that khat does not have. Either alternative, therefore, would be much worse than the status quo. I am not suggesting that the status quo is wonderful, but it is nothing like as serious as the possible consequences of a ban. The idea that the household would have more cash to spend on food is, sadly, a delusion. Some women might see their husbands spending £25 on khat and think, “I could do with that to buy some shoes for the kids”, but it is a little more complex than that.

The ACMD had clear, scientific reasons for advising the Home Secretary that,

“the evidence of harms associated with the use of khat is insufficient to justify control and it would be inappropriate and disproportionate to classify khat under the Misuse of Drugs Act 1971”.

These are very strong words from the ACMD and, particularly, a council led by Professor Leslie Iversen, whom I know quite well and who is a highly regarded scientist known for his incredible moderation, gentleness and so on. He is not a wild man; if he allows such words to go forward to the Government, we really need to take note.

The two central findings concern the medical and social harms, as others have indicated. The ACMD concludes that khat has no direct causal link to adverse medical effects, other than a small number of reports of an association between khat use and significant liver toxicity—a small number and an association. In scientific lingo, as we know, “association” simply means that the two things tend to happen alongside each other. There is no indication of a causal link between the use of khat and medical consequences. On the question of anecdotal evidence of social harms, the ACMD concludes that its research into these has found no robust evidence that demonstrates a causal link between khat consumption and any of the harms indicated.

Professor Iversen emphasised in his letter to the Home Secretary that the council’s recommendations were based on a rigorous and systematic process of evidence-gathering and subsequent analysis of what was submitted and presented to it. In other words, as I understand it, the recommendations should not be set aside other than for matters of serious national security or national interest. Now my understanding is that the main reasons for the Home Secretary’s decision have nothing to do with medical and social risks, and are twofold. First, as others mentioned, Sweden and the Netherlands in particular have banned khat and would find it helpful if the UK took the same step in order to avoid this “hub”. The noble Baroness, Lady Hamwee, dealt very effectively with that point, bearing in mind the very short life of the substances within khat that people are interested in.

The other issue raised, which I find utterly peculiar, is that there is some relationship between khat use and terrorism. That is quite remarkable. I will deal with the terrorism issue very quickly. A very small trade in a perfectly legal, low-cost substance in a few BME communities is just not a serious candidate for a terrorist threat or interest. Indeed, the ACMD was not provided with any evidence of al-Shabaab or any other terrorist group’s involvement in the export or sale of khat, despite consultation with the relevant national and international official bodies. I understand that the Home Secretary has claimed that the ACMD would not have been aware of these things. However, it was aware of the people who are aware of them—and consulted them. The fact that the ACMD picked up nothing in this area should be taken seriously. On the other hand, banning a substance such as khat and increasing its value a hundredfold or more really might interest terrorists. Even on that count, this ban could be—and could be expected to be—counterproductive.

The first question one must ask on the hub possibility is whether the bans in these other countries are working. There is apparently no evidence that they are, or that they are even helpful. I would not expect them to be helpful. The idea that we follow other people simply because they want us to seems a little wrong.

I want to put a proposal with respect to khat. The Government introduced temporary-class drug orders for the purpose of controlling new psychoactive substances. I will not go on for very long on this but I want to put it forward. I applaud the Government for their policy. Its great strength is that these TCDOs do not criminalise the possession and use of these drugs while the TCDO remains in place. However, it provides for the ban of production and sale of substances that may prove dangerous. These orders were designed to enable the ACMD to analyse new drugs and determine whether a full ban under the Misuse of Drugs Act 1971 could be justified. The only possible justification given by the Government and Home Secretary—I emphasise that—for a ban of khat concerns the supply of khat to other European countries or supply involving terrorists, not that that point needs to be taken seriously. An order along the lines of a TCDO, which avoided criminalising users of khat, would fulfil the Government’s objectives while avoiding unnecessary and severe consequences for the BME communities affected.

The 12-month review proposed in the amendment would then evaluate a narrower issue: the supply ban and, for example, the price increase and illegal activity that will inevitably result. The ACMD could do that work, its findings could be put to the Home Secretary and, if the supply ban was seen not to be in the national interest, it could be dropped. If the ACMD recommended education and preventive initiatives, tailored treatments and other social interventions could then be funded instead of that money going into the criminal justice system. There is an awful lot to be said for that approach. The ACMD thought about this very carefully and that is what it came up with.

The above proposition is relevant even at this stage, if I may say so. We know that some 40% of legislation is never implemented. It is surely possible for the Government to implement only the supply side of their ban and defer—I hope indefinitely—the implementation of the ban on possession and use of khat. Such a plan would enable a more focused 12-month review, as I have already mentioned. I hope the Minister will be willing to take this idea away, even at this late stage: a supply ban only could be introduced and then evaluated to see whether it should continue.

European Union: Justice and Home Affairs

Baroness Hamwee Excerpts

Thursday 8th May 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have always said that you cannot play the ball if you take your bat home. If you walk out of a negotiation, you should do it only if you have planned to do so, and if you have a strategy for getting back in. Early in my professional career, I knew a solicitor who mistakenly walked out of a meeting in his own room; there is no way back from that.

My default position is clear: stay in the game and stay in the room, and do not be overconfident—or, indeed, arrogant—about being invited back. The noble Lord, Lord Hannay, and others, put all that far more diplomatically than I just did.

I may be blissfully blinkered, but I recognise the dangers in being too simplistic about all this. I recognise the importance of careful scrutiny, as did my noble friend Lord Faulks. He recognises that the Executive can benefit from that. The points which have been made about the impact assessments are not rhetorical, but points of real substance. Until I listened to this debate, and in particular to what the noble Baroness, Lady Corston, had to say, the importance of an impact assessment of what you are not doing—of what you are opting out of as well as opting in to—had not occurred to me.

Therefore, although my first reaction to the very scathing joint report of the three Commons Select Committees was to wonder whether they were too close to a whinge to be useful, they were not wrong. Process, as well as substance, is important. So, too, is the procedure for the eventual vote, which it appears will be a vote in the singular. The Home Secretary has made it clear that we will be presented with a package. All noble Lords will be acutely aware of the tensions and constraints of being faced with a single decision; we face it every day with secondary legislation, which is unamendable.

It is trite but true that in such an internationally connected world, the bad guys are among those who are internationally connected; the noble Lord, Lord Judd, put that very clearly. Many Europhobes seem to distinguish between the states in the European Union and their roles within the EU, and as holiday destinations. I am sure that many who have very determined anti-EU views would be apoplectic if they were described as being soft on crime. However, if one thinks about the measures which we are being asked to consider, the resistance to many of those measures in the area of justice and home affairs is tantamount to that. I agree very much with my noble friend Lord Teverson that it would be very helpful, essential even, to disaggregate the term “national interest”. It is a matter of identifying the priorities and explaining what you mean by it. Some aspects of national interest are in conflict with one another, so one has to be clear about which ones take priority.

I do not pretend that opting in to everything is any sort of panacea. The Minister mentioned the Passenger Name Record data agreement and the Council decision on that. The annual report confirms:

“The UK has recognised first-hand the benefits of PNR through its own border systems”.

Just after reading that I read a piece by Simon Calder in the Independent about the recent problems with the IT systems at our borders, when,

“the passport readers and ‘e-gates’ stopped working. Manual processing led to ‘longer queues for some passengers’ according to the Immigration and Security Minister … that translated as ‘mayhem’”.

The Minister, he goes on to say, said:

“‘Security must remain our priority at all times’”.

Of course; but we have a very respected journalist saying:

“What the minister actually meant was: the illusion of security must be maintained at all costs”.

He went on to describe the problems around that, saying:

“The authorities want to keep bad people out. Yet the UK’s frontiers … are leaky. So officials plod dutifully through the procedure of manually entering the passport details of returning holidaymakers who they know pose no threat and are merely tired, grumpy and keen to get home”.

I mention that because it seemed to me to point to the experience of some of our systems as experienced by our citizens on a day-to-day basis, and their perception of how we go about some of these things.

I wanted to mention two other matters; so much else has been covered. The first is the probation order. Our EU Committee, in its inquiry on the 2014 opt-out decision, referred to this, reiterating the view that the,

“measure has potential to provide benefits for the management of offenders on a cross-border basis and that nothing is being gained by not implementing its provisions”.

The Government’s response was to support the principle but to be concerned about practical operability and the possibility of different practices among member states, with there being,

“no clear understanding as to how this measure will work in practice and thus very little evidence on which to judge its effectiveness”.

The Government’s response to the EU Committee was to say that these issues are,

“unlikely to be resolved during our negotiations with the Commission”.

I latched on to a comment by the Justice Secretary in a debate in the House of Commons, when he said:

“At the moment we believe the measure is flawed and we have therefore decided it cannot be in the list of things to opt back in to”.—[Official Report, Commons, 7/4/14; col. 92.]

I cling on to the phrase “at the moment”, in the hope that the moment will come, because it would be a great pity if those with suspended sentences, who are doing community service or are on probation, cannot fulfil their sentences back in the UK rather than where they have been sentenced. This would be so much in line with our own rehabilitation agenda. In recent weeks we have often discussed such matters as prisoners in this country being released into the areas where they will be at home with their families, and the importance of settling back with family and a job, without delay. I hope that the Government can keep working at this to overcome the difficulties that have been identified.

We have also not opted into the directive on children suspected or accused in criminal proceedings. I mention that as well because the points that I am going to list will resonate with Members of your Lordships’ House. We spend a lot of time, rightly, on considering children within the justice system. The directive covers matters such as a mandatory right to access to a lawyer and not being able to waive the right, as well as a right by children to an individual assessment to identify the child’s specific needs for protection, education, training and reintegration into society. Then there is the questioning of children being recorded. The directive says that,

“all measures alternative to deprivation of liberty should be taken by the competent authorities whenever this is in the best interests of the child”.

It says:

“In proceedings involving children, the urgency principle should be applied to provide a rapid response and protect the best interests of the child”.

I understand that there may be questions over how these things are applied, but the principles are ones that we would all agree with.

I have said that I am concerned about the style of negotiation and how we will be left with a series of bilaterals, which of course always depend on the other party agreeing to play. The short point is we cannot assume that those negotiations will succeed in our terms. This is all work in progress. I do not suppose that my noble friend Lord Taylor of Holbeach will respond to the encomium of the noble Lord, Lord Dykes, with anything other than due thanks.

Like the noble Lords, Lord Teverson and Lord Boswell, I think that comprehensibility and transparency are important because you are not really transparent unless most people understand what you are doing and saying. All this is central to this area of work. It is important that, in dealing with these issues, Parliament and the Government are not just accountable but manage to deal with them in a way which is reasonably accessible and understandable—to Parliament, as a start, as the noble Lord, Lord Boswell, said. I do not want to continue to share the analysis and the gloom of the noble Lords, Lord Bowness and Lord Judd.

Immigration Bill

Baroness Hamwee Excerpts

Tuesday 6th May 2014 Lords Chamber

[Lord Avebury (LD)]

My Lords, the Immigration Law Practitioners’ Association has pointed out that this is a meaningless amendment because a tribunal would not be able to consider a matter that was not within its jurisdiction in any case. It is disappointing that the Government have not noticeably reflected, as my noble and learned friend assured me they would, on the alternative suggestions made by my noble friend Lady Berridge, on this clause, and supported by several noble and learned Lords, to give effect to the recommendations of the Joint Committee on Human Rights in its eighth report. Your Lordships were almost unanimous in condemning a proposal to allow one of the parties to an appeal to instruct the tribunal on what matters it can or cannot consider.

My noble and learned friend the Minister did not challenge the assertion that the tribunal had not allowed abuse of its own process in the past or had treated the Secretary of State unfairly, or that the existing process was inefficient. There was no suggestion on Report that the Government had raised any concern in the past over this alleged problem, but if we concede that there might have been cases in which a new matter—which is only to be defined in guidance, as we heard—was raised, that still does not mean that your Lordships should agree to grant this sweeping power to allow the respondent to veto the consideration of the new matter, even when the reason for its last minute appearance was the difficulty in getting hold of the presenting officer, as in one of the cogent examples given by my noble friend in introducing her amendments. In such cases the presenting officer who may have been unable to get instructions from senior counsel overnight can ask for an adjournment. My noble and learned friend did not say that he knew of any instance when such a request had been refused.

My noble friend said that she thought satellite judicial review went against what the Government were seeking to achieve, but that would still be the only way of challenging a decision by the Secretary of State to prohibit the use of a proposed new matter, after the amendment that is now before us. I asked my noble and learned friend whether the Government had made any estimate of the number of judicial review cases likely to be heard as a result of this provision and what would be the estimated reduction in the savings expected from it. I received no answer. I certainly agree with the suggestion made by my noble friend just now that a record should be kept of such cases.

The main reason why the Government insist that the Secretary of State should have this power seems to be, as we have heard, that she is the primary decision-maker of right on these applications rather than the late arrival of new matters, some of which is due to the inaccessibility of the Home Office. Nobody argues with that in principle, although my noble friend Lady Berridge pointed out that the Secretary of State had, in effect, voluntarily abdicated that role by allowing officials to make such a large number of wrongful decisions at first instance.

Even if that problem is solved, there remains a serious objection to what the Government propose. The fundamental principle of the rule of law is the right to a fair trial. In his wonderful book, The Rule of Law, the late noble and learned Lord Bingham emphasised that the right applies to,

“adjudicative procedures of a hybrid kind … proceedings in which one or more parties may suffer serious consequences if an adverse decision is made”.

He goes on to mention a recent case in the Supreme Court in Canada, where the Chief Justice, delivering the unanimous judgment of the court, said that,

“a fair hearing requires that the affected person be informed of the case against him … and be permitted to respond to that case. This right is well established in immigration law”.

Thus, if the applicant is denied the right to present what may be a crucial piece of evidence, he is denied the right to a fair trial. That right trumps the Secretary of State’s right to be the primary decider. This amendment, leaving Clause 15 effectively untouched, does not cover the mischief dealt with so effectively by my noble friend Lady Berridge.

[Baroness Hamwee (LD)]

My Lords, my noble and learned friend responded extremely speedily to my bank holiday inquiry, and I am grateful to him for that. The points about whether consent should be required for the tribunal to consider a new matter have been covered quite thoroughly, but I would like to mention the question of guidance. I was curious that this is guidance, because it must be guidance by the Home Office, and therefore the Home Secretary, to the Home Secretary. I would have understood had it been called a code of practice. The title does not really matter: it is the content. I wonder whether there is any distinction between the two.

Having seen the letter to the noble Baroness of 29 April, it seems to me that the way the guidance is described comes quite close to the exercise of discretion. I am aware that I have not put a question mark at the end of any of that, but I felt that I wanted to make those points.

[Lord Woolf (CB)]

My Lords, may I be forgiven if, despite my discourtesy in not being here earlier, I say a few words on this matter? It is very important, not only for the principles that noble Lords have clearly expressed already, but purely from a practical point. I urge the Government to think again about this, based on the experience of dealing with immigration cases for the majority of my career in the legal profession. The repeated use of the justice system to obtain delay was always a problem. I understand the motivation of the Government all too well, but that does not justify the departure from principle about which we have heard.

However, this is the point that I am most anxious to make. In reality, if the first tribunal before whom this matter is happening does not have the power to say what the procedure will be, that will create a lacuna which will be exploited more and more frequently by those who realise that they just need to make a new point and the Government’s representative will have to ask for adjournments so that he or she can take instructions on what action to take. Not only is this wrong in principle, it will create an undesirable position. Although it is not intended, it will undermine the status of those who adjudicate on these matters. More and more immigration matters are now being dealt with outside the High Court, so we should not be undermining that status but supporting it.

I urge the Government to take this away again. I do not think that they have met either the problems of principle that were raised on the last occasion that this was discussed or, more importantly perhaps, the practicalities of sitting on a tribunal and having to deal with applications. As an adjudicator, if you are in doubt about the right course to take, of course you can always adjourn. Most legal systems are plagued by unnecessary adjournments. In my view, what the Government are creating here is unnecessary scope for adjournments. Even if there is just the ability to make applications—you can never stop them—they will result in adjournments, which I would have thought is the last thing the Home Office wants.

--- Later in debate ---

[Baroness Hamwee]

My Lords, with the leave of the House—I know that it is unusual to speak at this stage—I promised my noble friends that I would say something at the appropriate point. It will have been an open secret to your Lordships that a number of us on the Liberal Democrat Benches have found these issues particularly difficult. The negotiations within our little group were sometimes quite difficult, because these are difficult issues.

I am sure that in the next Session we will tax my noble friend the Minister with matters that are mostly outside the scope of the Bill but which some of my noble friends showed considerable ingenuity in raising. I thank the Minister personally for his generosity, including extraordinary generosity with his time and his patience.

Bill passed and returned to the Commons with amendments.

Immigration Bill

Baroness Hamwee Excerpts

Monday 7th April 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I too applaud the determination of those who have brought this matter before the House again. Having seen that the Government were trialling an advocacy support arrangement across a number of different—and, in some cases, clearly obvious—authorities, I tried to find details on the Home Office website. I could not. Nor could I find anything on any of the local authority websites that I tried. However, if I am right in thinking that the trial follows on from the recently concluded draft regulations on care for unaccompanied and trafficked children, and that the provisions to be trialled reflect what is said in that consultation, I must say that I was disappointed in the lack of robustness in what I read there.

There is comparatively greater robustness in the amendment. The consultation said that the local authority should facilitate access to independent advocacy support where required. I note that the amendment requires the appointment of a guardian with defined responsibilities. The noble and learned Baroness has talked about the powers that go with those responsibilities. I am not sure that they are as explicit in the amendment as I would like, but they are implied. She clearly distinguishes between the social worker support and guardianship. I am aware that the pre-legislative scrutiny committee took evidence on this.

I ask the Minister to describe what is to be trialled—starting, I believe, in July—and also whether he can point noble Lords to where we can read more about this. I am concerned about the timing and how this will fit in with the proposed modern slavery Bill. I understand that the trials will run for a period of six months from July. There will then, quite rightly, be an evaluation. Perhaps the Minister can tell us who will do the evaluation. This is not intended to be an attack on the Minister in any way, but I do not think that the Home Office is necessarily the best department to evaluate this; it is really a cross-departmental matter. The evaluation must be considered and discussed with local authorities and a wide range of agencies. How long will that take? If the evaluation comes to the conclusion that there should be guardianship, will the modern slavery Bill include enabling provisions that will allow this to be fleshed out in regulations? How will this provision actually be achieved, given that the exercises that I have talked about must take us very close to May of next year and the end of the next Session?

The Minister has been extremely generous of his time in discussing the Bill. If this amendment is not accepted—it seems a little impertinent of me to seek to usurp the position of those whose names are attached to it, and I am not doing that—it would be very helpful if, following today, we could unpack the detail of it so that the Government can give a clear indication of where they have concerns, rather than just awaiting the result, as they will evaluate it, of the proposed trial starting in July.

[Lord Quirk (CB)]

My Lords, although I share some of the misgivings already expressed, including that of the noble Baroness, Lady Howarth, particularly in relation to the role of volunteers in this important matter, I find myself at present very much in support of the amendment. However, I wonder whether I could be given clarification in respect of proposed new subsection (8)(b). Clearly—or at least it seems clear to me—the intention is that the child trafficking guardian ceases to occupy that role if the child ceases to be domiciled in the United Kingdom. The subsection says something much fuzzier and possibly open to mischievous interpretation with its wording,

“if … the child leaves the United Kingdom”.

Perhaps in responding to others who will be asking questions for clarification, the proposers could take that small point on board.

--- Later in debate ---

[Baroness O'Loan (CB)]

My Lords, I spoke on the first day in Committee but was unable to attend on the day this clause was discussed, as I was recovering from surgery. Nevertheless, as a member of the Joint Committee on Human Rights, I have put my name to these amendments because it is profoundly important that the Bill which comes to be enacted following your Lordships’ deliberations takes into account the issues which arise. As the noble Baroness, Lady Lister, has said, this would most effectively be done through the amendment of the noble Lord, Lord Pannick.

The outstanding issues have been graphically illustrated by the noble Baroness, Lady Lister, but I will refer very briefly to them. The Government have so far declined to provide any indication of the number of people whose citizenship was taken away from them while they were abroad, on the basis that they are all cases in which the information on which the Secretary of State relied was information which should not be made public. The Government say that they are “unable” to put the numbers into the public domain,

“for reasons of national security and operational effectiveness”.

However, I do not believe that the release of this number, or of many other numbers, will in any way impact on national security.

The Government also indicated in their response that it is anticipated that the new power will usually, and possibly always, be exercised on the basis of closed material. As noble Lords will recall, this is not a procedure which has commended itself to many and is one which carries with it the risk of unfairness. The Joint Committee remains concerned that exercising the power,

“in relation to naturalised British citizens while they are abroad … carries a very great risk of breaching the UK’s international obligations to the State who admitted the British citizen to its territory”.

The first two amendments to which I put my name, Amendments 56ZA and 56ZB, therefore seek to ensure United Kingdom compliance with our international obligations and to ensure the adequacy of the safeguards against arbitrariness in decision-making by requiring that, if it is to be done,

“the deprivation of citizenship is a necessary and proportionate response to such conduct”.

The Joint Committee on Human Rights does not accept the Government’s argument that the clause is compatible with its international obligations to countries that have admitted British citizens whose citizenship is subsequently removed.

The Government assert that out-of-country deprivations of citizenship do not engage the European Convention on Human Rights because it does not apply extraterritorially other than in exceptional circumstances. However, the case which they propose as an authority for this view is by no means an authority for the broad proposition that the ECHR is not engaged by an out-of-country deprivation of citizenship that leaves an individual stateless, as the case itself did not concern a deprivation which left the individuals concerned stateless. Moreover, there have been cases involving extraterritorial jurisdiction. I point your Lordships to the East African Asians case, in which the UK was found to have breached the right not to be subjected to “inhuman or degrading treatment” in Article 3 of the ECHR when it removed the right of abode in the UK from British citizens. Were Parliament to enact Clause 60 as drafted, it would be the first measure adopted by the UK in recent years that gave rise directly to an increase in the number of stateless people in the world.

Amendment 56ZC is about retrospectivity. The noble Baroness, Lady Lister, has already made the point that, under current law, a naturalised British citizen who does not also have another nationality is not liable to being deprived of their citizenship. Yet that is what the Government assert. The law says that they cannot be made stateless by deprivation of UK citizenship which has been conferred. The amendment seeks only to ensure that a person could not lose their citizenship as a consequence of actions which they were unaware could result in such loss, particularly since the information and intelligence which will lead to the decision-making will, in most cases, be withheld from them through the closed procedure.

The final amendment is about children. The Government do not consider an amendment such as this necessary to ensure that the best interests of any children affected are treated as a primary consideration. The Government cite the “children duty” in Section 55 of the Borders, Citizenship and Immigration Act 2009 as applying already to the Secretary of State’s decision-making in respect of deprivation decisions. However, as the noble Baroness has already said, the Section 55 duty applies only to children who are in the United Kingdom. It does not apply if the children affected, who may be British citizens, are abroad at the time, as they very well might be when the power is being exercised in relation to an individual who is abroad at the time of deprivation. Amendment 56ZD is very simple. It seeks to extend the duty in Section 55 of the Borders, Citizenship and Immigration Act to children who are outside the UK at the time when the Secretary of State makes the decision affecting them. Can the Minister explain how else such children could be protected?

[Baroness Hamwee]

My Lords, I have Amendments 57A and 57B in this group and share the concerns that have been expressed about the substance and transparency of the new clause and what the point of it is. In Committee, I asked that question rhetorically. I now ask—I hope it is not a rhetorical question—why we should not use a TPIM, as we have that legislation on the statute book. The conduct of the individuals concerned seems to fall into the same area, and this indeed raises the same issue—that the individual has not been prosecuted. If TPIMs are not to be used, it is bound to raise the suspicion that the power will mainly be exercised when an individual is out of the country.

The charitably funded Bureau of Investigative Journalism has identified 17 cases, mainly through FoI and court records, in 15 of which the individual was overseas at the time of the deprivation under the provisions as we now have them. If these individuals are regarded as such a high risk, I think we can assume that, having lost their status, they would be subject to close surveillance, certainly if they are in this country. If they are overseas, that might raise even wider matters.

I understand from officials—I thank them as well as the Minister—that if an individual, having been made stateless through this procedure, is in the UK, he will have limited leave to remain. I was referred to the relevant Immigration Rules. Under paragraphs 404 and 406, a person who is,

“a danger to the security or public order of the United Kingdom”,

will be refused leave to remain. Can the Minister tell noble Lords whether that person is then disqualified from leave to remain and what happens to him?

I understand from the old UKBA casework instruction on restricted leave that that will apply, and that restrictions and conditions can be imposed, including a residence restriction. Noble Lords will recall concerns about residence restrictions under the old control order regime. One of the concerns about those restrictions was the impact on the family of the individual subject of an order. Can the Minister explain what will happen to the family of an individual if, on the one hand, he is in this country and if, on the other, he is abroad? Does the family qualify for leave to remain in the circumstances of the individual being a danger to security or public order, as I have quoted? I mention all this because the impact on families was a concern about control orders, TPIMs and terrorist asset-freezing. Reporting on that has been a component in reviews, which we have seen, by successive independent reviewers.

The Bureau of Investigative Journalism mentioned to me two examples of the impact on families. One was of a Sudanese-born man who lost his citizenship. The bureau told me that a Home Office official said in evidence in court that the Government waited until he was overseas before removing it. He had taken his wife and four children to Sudan for the summer. That left the children effectively exiled as well. The other example was of a British-born man whose youngest son was born here and who remains a British citizen. He has developmental disorders and is dependent on both his parents. His mother wishes to return to the UK for treatment for the son but she cannot do so without her husband. One does not want to be too hearts and flowers about this. The issue that we are being asked to consider is a tough one, but I think that the issue goes wider than just the individuals involved. I asked the Minister whether individuals and a family might be left without resources and so left destitute. Can he share with the House the Government’s position on that, particularly if the deprivation has been made while the individual is abroad?

Immigration Bill

Baroness Hamwee Excerpts

Thursday 3rd April 2014 Lords Chamber

[Lord Sutherland of Houndwood (CB)]

My Lords, in support of the excellent and measured speech of the noble Lord, Lord Hannay, and of the other signatories to this amendment, I offer not a speech but a quotation. It runs as follows:

“One of the biggest categories of ‘immigrants’ is overseas students—176,000 last year, over a third of the total. They are not immigrants but they are defined as such because they are here for more than a year … There has recently been a crackdown on the undoubted abuse of visas by some private colleges but the consequence of tightening the rules has been to drive away bona fide students, especially from India, to the US, Canada and Australia. Universities, and Britain, are poorer as a result”.

These are the words of the member of the Cabinet who runs the department that is responsible for universities: Vince Cable. They are not private; they were in the Evening Standard about two weeks ago. I quote them not to make mischief for the coalition Government, because I believe that the country has benefited from the strength of coalition government, but to say that here at the heart of government, the individual responsible for universities and their impact on this country is clearly at odds with what is happening in legislation today. I think that he is right and that his words bear repeating, which is why I happily support the noble Lord, Lord Hannay, and his colleagues.

[Baroness Hamwee (LD)]

My Lords, I am particularly pleased to follow a reference to my right honourable friend Vince Cable, who has been very energetic in spelling out the value, if I can put it this way, as an import and as an export, of overseas students. I have been worried, and have said so publicly, about the use of the phrase “the brightest and the best” in immigration policy, but I have to say that I did not read my noble friend Lady Williams of Crosby as wanting to cream off the brightest and the best; I do not think that was where she was going.

As has been said, we have a very good story to tell. We are curiously inept in some parts of the system at telling it. The word “perception” has been used, rightly, by a number of noble Lords. We should not get stuck on the overall immigration numbers without disaggregation, but I do not want to repeat all the arguments that I and other noble Lords have made.

I have just a couple of comments on this. I doubt that many people, even in this building, know that the Budget added to the funding of the Education is GREAT campaign, which seeks to attract international students to the UK, and that the number of Chevening scholarships supporting students from developing countries who come here to study is being tripled. I will let those two facts speak for themselves, and I hope they will add a little to the perception.

On tenancies I am very much with the noble Lord, Lord Hannay, and others. I want to make use of this Report stage to come back to some rather focused questions on those amendments.

As I understand it, the health levy or surcharge really is an integral part of the Bill. As the Minister will remind us, in absolute terms it is competitive, and I say that it is very good value insurance. Some anomalies and issues need to be followed up, and others have drawn attention to these. I am reassured by the fact that secondary legislation will, I hope, deal with the detail.

I welcome the student tenancy amendments which my noble friend the Minister proposes but, if I may, I will seek a little more assurance. I was concerned about the numbers and types of properties that students use as accommodation. Given the time, I will try to summarise on the hoof the understanding I have gained from Universities UK. I hope that noble Lords will forgive me. It is important to say that about a quarter of international students are likely to still be living in accommodation which is not within the categories specifically defined so far. The Minister has been very generous with his time in meetings and in correspondence, and he foreshadowed the amendment to the halls of residence test at the previous stage. I would have liked to have seen an exemption which focused on the people—the students—rather than on the property.

I am concerned about the term “nominated”, as are other noble Lords. I hope that my noble friend might be able to say that, although this term is used rather differently in other contexts, here it really amounts to “accredited”. I am sure that the Minister will spell out in his reply that there will be guidance, and there will be consultation on the guidance. Perhaps he might also state that, as well as the accommodation owned by a relevant institution, the halls of residence and the nomination for what we might understand to be a private tenancy, where a landlord is approached by a student and none of those three situations is in place, the landlord can in effect obtain the nomination from the university and come within that exemption.

I, too, am concerned about postgraduates and doctoral students, and I looked at the definitions brought into the Bill from the Local Government Finance Act 2012. I hope that my noble friend will be able to confirm that postgraduates and doctoral students fall within the definitions in that legislation. I hope he may also be able to set out the balance between studying and teaching within the work done by, let us say, a postgraduate student, many of whom also teach, that the Government will expect to see in order for the exemption to apply. I assume that research is regarded as study.

I hope—well, I assume—that the relevant orders following from the Bill will be made by the Home Secretary, because many Secretaries of State come within this whole picture. I have probably taken enough time, and the Minister is aware of my concerns. He looked slightly puzzled at my last comment, but I was thinking of the Secretary of State for Communities and Local Government, who makes the order about who is a student. It is a bit of a jigsaw.

[The Earl of Sandwich (CB)]

My Lords, I sense that the House wishes to come to a decision, so I shall be extremely brief in making a couple of points. The noble Lord, Lord Cormack, is always so reassuring and we think that he is going to bridge the gap which exists between the proponents of the amendment and the Government, but I fear that this is not the case. This is a serious disagreement.

I shall speak mainly about higher educational institutions in the widest sense. The noble Baroness, Lady Williams, said that she was concerned about the welcome that we are giving to students—the noble Baroness, Lady Warwick, reiterated that. We used to talk about a climate of disbelief in the Home Office a few years ago; now, I think that there is a climate of frustration, interference with and even prejudice against what I might call the lower order of colleges of education and those which are capable of offering places to bogus students, who have rightly to be returned. I am very concerned about the climate in this society that we have.

That gives me, however, an opportunity to say that the Home Office recognises its mistakes. It can correct its mistakes. I had an example only last week where a college in south London with five years of trusted sponsor status, which I have visited, was quite unfairly threatened with the loss of its licence through an association with one of these lower orders of bogus college. It recognised the mistake in the end, but I want to put over that it is a tough environment out there at the moment if you are one of those colleges. Many immigration officers are being put in positions of making educational decisions. I support the amendment; I hope that my noble friend will move it to a Division. The remarks of my noble friend Lord Sutherland were very timely, because this is after all a disagreement within the coalition. It was very welcome to hear the voice of Vince Cable. I am sure that he agrees, as does the noble Lord, Lord Hodgson, that the disaggregation of numbers, although it is not the subject of this amendment, has become almost a separate issue which we should come back to.