Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Monday 18th November 2013 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I support the noble Lord, Lord Flight. I remind the Committee that I sit as a magistrate in central London, and in my time I have certainly given many ASBOs for persistent and aggressive begging. When I sit, it is relatively commonplace to have an ASBO application from Westminster City Council, and it is something that magistrates are experienced at dealing with. As I said at Second Reading, in my experience, magistrates are more sceptical about granting ASBOs than they were when they were first introduced, and certainly not all ASBOs that are applied for are given.

The noble Lord, Lord Flight, has set out the case very well. I have been lobbied by Westminster City Council and the central point is that, if the existing mechanisms within local authorities are used to dealing with a particular administrative structure, there will inevitably be a cost if one changes that structure. Therefore, I think that it is incumbent on the Minister to explain why he thinks that the new measures he proposes to introduce will work more effectively and potentially reduce those costs. As I said, certainly from the point of view of magistrates administering this, it is a relatively well oiled machine, and we take a sceptical view when we put them in place in the first instance.

[Baroness Hamwee (LD)]

My Lords, the noble Lord knows that I have concerns about this amendment. I hear what he says about other cities. I have obviously not been able to undertake a scientific assessment but there seems to be quite a variation in views—in London, at any rate—about whether this is the right way to go about the matter.

The language in the amendment seems to be very general;

“intentional or deliberate anti-social behaviour”,

could mean pretty much anything, as we heard earlier. I would have thought almost all anti-social behaviour could potentially be persistent; most conduct would be potentially persistent, but that is not really my concern. The begging that we have heard about troubles me a lot for a variety of reasons; one of them is the criminal gangs behind the beggars. I am not immediately convinced that this measure, dealing with those who are forced into the activity, will actually solve the problem or deter the activity. I am also concerned—though I accept this might be the position with the current arrangements—about the revolving door of arrests. Some are in the cells overnight and then they are out again.

There is other legislation as well; I am sorry that the Minister has apparently not responded at length. I had understood that quite a long letter giving the Government’s views had gone out. That is a matter for my noble friend. I have not seen the letter; I just heard that there was one. It dealt with the other legislation, which might be quite old. That does not mean to say that it is necessarily bad.

I went to the noble Lord’s briefing with Westminster City Council. I heard Councillor Aiken’s views very powerfully expressed. I did not gain the impression that everything was okay now, so I was a bit confused as to the argument against scrapping the current system. I may have been wrong, but I picked up the feeling that there were problems now.

[Lord Flight]

I would like to respond to that. Yes, there are problems; persistent begging is a very hard thing to deal with. I think that the Westminster argument is that its present tools include a tool which has had some success; it is concerned that the new arrangements, because of the double doing, would be less useful.

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[Lord Taylor of Holbeach]

My Lords, I am very pleased to have the chance to talk about this issue because I am concerned that Westminster City Council, a flagship council, has expressed anxieties. I reassure my noble friend Lady Hamwee that the letter has gone to Councillor Nickie Aiken from my honourable friend Norman Baker, who was the Minister responsible for crime prevention and was the lead on this Bill in the Commons. I have met with my noble friend Lord Flight. I hope that we had a very productive discussion. Much of the information that he has been able to give came out of that meeting on Friday. It is now Monday and things have moved in a rather compressed way.

I will conclude my remarks in saying what I intend to do but, first, I should express that we are aware of the problems of persistent and aggressive begging with which a number of councils are faced. I attend the meetings of the safer communities board of the LGA fairly regularly nowadays because I enjoy them and find them very useful. When I went, I think that I was able to explain to those gathered, who included the leader of Bradford City Council—a large city—that the measures provide a portfolio of remedies to deal with this sort of circumstance. The criticism from Westminster City Council came to me rather out of the blue.

However, the Government appreciate those concerns and acknowledge the impact that aggressive begging can have on individuals, businesses and communities. I am aware that Westminster is working with its partners to do what it can to tackle the problem. I think that noble Lords will realise that it is extensive. Westminster has expressed its concerns. It is important that councils, the police and others work together on all these matters, which is one of the underlying themes behind this Bill.

As I have said, last Friday I met my noble friend Lord Flight. It seems that the concerns about the injunction to prevent nuisance and annoyance stem from its differences from the ASBO with regard to powers of arrest. The breach of an ASBO is of course a criminal offence and, as such, someone can be arrested simply for a breach. In contrast, the new injunction is a purely civil measure with civil penalties for a breach. Consequently, we do not consider it appropriate or proportionate for it to have an automatic power of arrest. As such, we have limited the court’s ability to attach a power of arrest to the most serious cases; that is, cases where a perpetrator has been violent or has threatened violence, or if there is a significant risk of harm to another person.

I understand the intention of my noble friend’s amendment and I am sympathetic to local councils’ concerns. He has mentioned other councils and I accept that others may have notified him of their concern. However, I should like to make two points. First, the effect of the amendment may not actually achieve its aim and, secondly and more importantly—we can change the amendment but it is a question of how the Bill operates—there are more appropriate powers that could be used as provided for in this Bill.

The amendment would require a threat of,

“intentional or deliberate anti-social behaviour”.

As has been mentioned by my noble friend Lady Hamwee, this is rather a broad brush. These words insert subjective elements that raise evidential thresholds for enforcement agencies and the courts. The courts would have to consider the state of mind of the perpetrator in ensuring that the power of arrest has been used lawfully. Before arresting an individual under the amendment, the police would need to satisfy themselves that the perpetrator had deliberately or intentionally committed anti-social behaviour. That may look easy to do on the face of it but may be different in practice. For example, it has been suggested that some of the foreign nationals who beg aggressively are coerced into these activities by organised crime gangs. My noble friend Lady Hamwee referred to that too. This is rather different from the current situation with the breach of an ASBO where there is no subjective element. That is why we say this amendment may not help councils in practice in the way that they hope.

However, there is a more fundamental reason why I believe the amendment is not necessary. I can understand why councils have focused on the injunction. It is, on paper at least, the direct replacement for the ASBO on application. However, it seems what the councils actually want are swift, efficient and cost-effective powers to prevent anti-social behaviour, supported by meaningful punishments. As I indicated earlier, as did my noble friend, such powers are in this Bill. The community protection notice under Part 4—which we will being coming to, I hope, soon—is intended to deal with particular ongoing problems or nuisances which negatively affect the community’s quality of life. The notice could be used to direct an individual to stop causing the problem and can, if necessary, be served on the spot. While a written warning is required, depending on the behaviour in question, it would not be necessary to wait too long before the actual notice was issued. It could almost be done immediately where appropriate and necessary.

The notice could be used to stop a specified action or wider behaviour, such as aggressive begging. It will then be available to councils as well as the police to ensure either agency was able to deal with the problem there and then. Breach of any requirement in the notice—for instance, failing to cease begging in a certain area—will be a criminal offence, subject to a fixed penalty notice or prosecution. Critically, a person may be arrested on suspicion of a breach. On conviction an individual would be liable to a fine of up to £2,500. That to my mind is a significant punishment.

Alternatively, where a persistent problem is detrimental to the local community’s quality of life, the public spaces protection order could be used by the council to impose restrictions. For instance, in areas where aggressive begging is a problem, a blanket ban could be imposed on it, ensuring that the council or police can act quickly when it occurs. In addition, the order can be used preventively, so if the council reasonably believed that the problem would simply move to another location—which is a real problem—it could use the new order there too. Local authorities would need to consult the police and other interested parties before seeking to impose an order, but the decision to use the new power would be theirs. It would be vested in local authorities. Again, breach of the order would be a criminal offence, subject to a fixed penalty notice or prosecution. Here again, a person could be arrested on suspicion of a breach. On conviction the offender could face a fine of up to £1,000.

My noble friend mentioned the dispersal power under Part 3, which may be useful to deal with individuals or groups causing problems by allowing the police to move them on immediately and away from the area where they habitually operate, for up to 48 hours. We will talk about how dispersal orders operate when we come to consider relevant amendments. Failure to comply with a direction is a criminal offence which will normally be tried in the magistrates’ court or a youth court for people under the age of 18.

There is a portfolio of measures in this Bill which can be used by local authorities, I think, effectively. The fact that begging persists here in the capital is an indictment of the fact that we still do not have effective measures to deal with it. I think that the Bill provides them.

I hope that I have been able to reassure my noble friend of my earnest desire to get this matter sorted. I am very pleased to meet with Nickie Aiken or for that matter any other councillors responsible for this area of activity in their local authorities, to try to explain to them how in practice they can use the measures provided for in the Bill to deal with what is a very serious problem.

[Baroness Hamwee]

My Lords, the Minister has given a very detailed reply as to the measures available, but I am sure that he would agree that none of that reduces the need to deal with trafficking and immigration control, which I think is actually behind quite a lot of what is happening which is so offensive.

[Lord Taylor of Holbeach]

In some circumstances there is undoubtedly some suggestion that people involved in begging have been brought here as part of criminal gang activity. But that is another crime and there are other measures to deal with it. Meanwhile, local authorities’ concern is to make sure that members of the public, tourists and businesses are not interfered with by beggars in public places.

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[Baroness Smith of Basildon]

My Lords, I think I can move this amendment fairly briefly. It concerns applications made for the issue of an arrest warrant for the breach of an IPNA. One of the things that strike us when we look through the clauses is that there is no timescale from the time when the application is made for an arrest warrant to when it would be issued or the application rejected—the Bill is completely silent on that issue. My attention was drawn to this by the report of the Home Affairs Select Committee, when it reported on delays in county courts, saying:

“We heard that this was likely to severely slow down the process for dealing with ASB”,

and the committee said how concerned it was. Local authorities have also expressed concern about delays in the county court system. In Clause 9(2), it seems that most of the applications would be to a county court; the only time it would go to a magistrates’ court would be if it was a youth court that had granted the IPNA. In other cases it would be a county court, and in some cases the High Court. If there were delays in the county court system, that would be a serious blow to the idea of moving swiftly—one of the major reasons that the Minister has given for having IPNAs rather than anti-social behaviour orders—in the introduction of these new injunctions.

There is another point that is not covered by the amendment but is also relevant to this. All the legislation should be subject to post-legislative review after five years. That seems quite a lengthy time on an issue like this where, if there is a problem, it will have to be dealt with much more quickly than waiting five years to see if there is in fact a problem. With issues of anti-social behaviour rising so high in public concern—and indeed in the Government’s concern, given the Bill before us—it would not be reasonable if we passed legislation but were then not able to enact it because of the delays that are currently being seen in the county courts.

The proposal to the Minister is that we look at this issue first and the Government make an assessment of, and issue guidance on, how long it should take for a county court from the moment it gets an application for an arrest warrant for a breach of an IPNA to when that court has to make a decision. If the Government could issue that beforehand, that obviously would speed up justice, which I understand is the purpose of this measure. That fairly briefly sums up and describes why we are putting the amendment forward. I beg to move.

[Baroness Hamwee]

My Lords, I have Amendment 21C in this group. It is extraordinarily inelegantly drafted, but I hope that the Minister is aware of my concerns that lie behind it. Where a respondent has certain requirements imposed on him as part of the IPNA and these have rehabilitative or therapeutic aspects—indeed, in many cases one would hope that they did—the further proceedings should not be taken in such a way as to prejudice the benefit of those requirements. My straightforward question—I was going to say “simple” question, but it might not be quite that simple—is to ask for some assurance from the Minister that will help to allay that concern.

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[Baroness Hamwee]

My Lords, I propose to speak to this; I realise that a number of people in the Chamber will be aware of that, but not the Chairman. I do not know whether the Committee would wish me to do that now or to save my fire-power. I am just aware of interest in the time, and the very creative way in which the time that I think we had agreed to finish had been reached.

[The Deputy Chairman of Committees]

I put it that Schedule 2 be the second schedule to the Bill, but I did not take the voices on that, so the noble Baroness is entitled to speak on this if she wishes.

Debate on whether Schedule 2 should be agreed.

[Baroness Hamwee]

In that case, my Lords, I apologise to the House but I do want to raise at this point whether Schedule 2 should stand part of the Bill. The Minister is aware of the particular concern that I have, which is that the schedule provides for sanctions in the event of a breach of the injunction. My concern is about the sanction applicable to children—the sanction of imprisonment. Children who breach an IPNA can be given a supervision order or, if they are over 14, up to three months’ detention. I do not think that the Minister will be surprised at concern as to whether such a sanction is proportionate, productive and compatible with children’s rights, for reasons of which the Committee will be very well aware.

Detention of any length in the case of children is something that many noble Lords are concerned about—whether it is not only not effective but also particularly harmful for children. I am not aware of evidence that imprisonment for breaching an ASBO acts as a deterrent for children committing anti-social behaviour. We are all aware of the potential harm for children’s development and the impact on their rehabilitation. We all know stories about fast-tracking children into the criminal justice system by dealing with them inappropriately at a very early stage in what may or may not—one hopes not—turn out to be a criminal career. Only the most serious crimes committed by children lead to custodial sentences. The IPNA is, of course, a civil measure, and detention is a very disproportionate sanction for a breach when the child has not actually committed a criminal offence. In brief—and I have kept it brief—I would be grateful if the Minister could tell the Committee how detention for children can be justified in this way.

[Lord Taylor of Holbeach]

My Lords, I hope that the Committee will forgive me if I rattle through my notes here, as I am aware of the lateness of the hour. I am grateful that my noble friend Lady Hamwee has raised this issue; it is an important point about the justification of detaining under-18 year-olds if they have breached the terms of an injunction in Part 1.

It is important to remember that, although the test for an injunction is the civil standard of proof, in the event of the breach of the test what applies will be the criminal standard of proof—beyond reasonable doubt. The court must also consider whether the young person has a reasonable excuse for breaching the injunction. Only a young person over the age of 14 can be detained and for not more than three months. Currently, under the anti-social behaviour regime, a young person can be detained for up to two years. It is also important to say that detention can be used only as a very last resort,

“where the court determines that because of the severity or extent of the breach no other power available to it is appropriate”.

Secondly, when the breach is established, it will be a civil contempt of court. This means that a young person will not be saddled with a criminal record, unlike with the breach of the anti-social behaviour order. We have also said in draft guidance that informal approaches should be used in most cases involving young people. When agencies believe that a more formal intervention is necessary, the courts must have the power to deal with young people who have not responded to the informal approaches or who wilfully ignore the terms of their injunction.

I hope that I have made it clear to my noble friend that these powers are used extremely sparingly. They are certainly not a power of first resort—they are of last resort only.

[Baroness Hamwee]

My Lords, I have already made clear this afternoon my concern about reliance on guidance. I wonder whether, if this sanction is so rare, a child would find himself faced with it, and there is no other basis on which to consider detention—that is, if you believe that detention, even used sparingly, is a correct approach. I expect to come back to the matter, and apologise to the Committee that, in the rush to get amendments tabled with the change of timing of this Committee stage, I missed this last week.

Schedule 2 agreed.

EU: Eurojust (EUC Report)

Baroness Hamwee Excerpts

Monday 4th November 2013 Lords Chamber

[Lord Stoneham of Droxford (LD)]

As a member of the sub-committee that produced this report, I support what has been said tonight, the report itself and the words of the noble Baroness, Lady Corston.

A lot of the arguments have already been made so I will not repeat them. However, I will say three things that I believe are important. Everyone knows that Eurojust aims to,

“improve the coordination of investigations and prosecutions among the competent judicial authorities of the European Union Member States”.

That is its purpose. It is inevitable, in a competitive single market, that just as capital, labour and goods will move between borders, criminals recognise no borders either. They will use whatever weaknesses there are in domestic legal and police systems to ply their trade and to seek protection. It makes no sense, as the Government have recognised, that we should pull out of Europol, Eurojust or the European arrest warrant. They all complement each other. The Government have agreed this, and last week we also agreed that the further proposal for a linked European prosecutor was a step too far, and the coalition is opposed to that.

However, now we have proposals for a new regulation for Eurojust which will look at its structure, its new provisions for governance and management structure, new provisions for its accountability to the European and national Parliaments—including the fact that the Eurojust president will have to appear before Parliament—the setting up of an executive board, and the removal of individual member states’ discretion.

The Government have concerns about all of those and have pointed them out. They are concerned about the ramifications for fundamental rights, the change to Eurojust’s existing governance and management and the whole nature of the extended powers given to national members. However, as we have heard, it makes no sense at all and it is silly that we are not prepared to get involved in the negotiation of these new proposals, and will mean that in Europe we will be seen as petulant and awkward.

Surely the great danger to us is that if we opt out of these negotiations things will emerge that we are not happy with. We know that there are many countries in Europe that agree with us on the whole issue of whether or not to have a European prosecutor and on getting further accountability of Eurojust. It is too important a body to us for us to ignore the process of reforming it. Finally, on this question we should send in the openers to bat, not rely on the tail end to pick up the pieces.

[Baroness Hamwee (LD)]

My Lords, my point is a general one. I apologise to your Lordships if it is trite—it probably is—but to me it is blindingly obvious that you cannot play the ball if you have taken your bat home. Every noble Lord will have had experiences of negotiation in some context, if only the domestic, and we know that if you choose to walk away you have to pick your moment. You have to be clear what the deal breaker is and know what your own compromise would be. However, until then you have to remain part of the story, not least because you risk losing respect if you are not prepared to get stuck in and stay stuck in to the project. You certainly risk losing influence. My noble friend’s phrase that you are “looked on as petulant” was absolutely spot on. You risk not being regarded as a serious player if and when negotiations resume. Indeed, you risk being thought of as having disqualified yourself from further negotiations in a serious way if you have distanced yourself.

[Lord Rosser (Lab)]

My Lords, I thank my noble friend Lady Corston for her introduction to the report from her committee and for the clarity of the committee’s case made in its report for the recommendation that the UK opt in to the negotiations on the proposed Eurojust regulation.

As has already been said, the European Union Agency for Criminal Justice Co-operation—Eurojust—was established just over 10 years ago. Provisions in the 2009 Lisbon treaty agreed by the member states included provisions that required the EU’s institutions to pass legislation in the form of regulations to determine Eurojust’s structure, operation, field of action and tasks. The proposed Eurojust regulation seeks to fulfil the member states’ aims.

Eurojust is involved in major crimes such as drug trafficking, human trafficking, terrorism and financial crimes, which cross borders and require co-operation between different jurisdictions if they are to be successfully investigated and prosecuted. Since 2003 there have been just under 1,500 requests from EU member states for co-operation with Britain through Eurojust. The objective of Eurojust is to support member states in conducting investigations, and we are very supportive of the value of the work that it undertakes.

As has already been said, the proposed Eurojust regulation will apply to the United Kingdom only if the Government indicate a decision to opt in by 21 November. The Government’s position in the House of Commons when it was debated there, I think last week, was that we should not opt in to the new Eurojust proposals at the outset of negotiations but should conduct a thorough review of the final agreed text to inform active consideration of opting in to the Eurojust regulation post-adoption, in consultation with Parliament. If the Government decide to opt in to the negotiation of the proposed Eurojust regulation, which seeks to replace two existing Council decisions, the legislation currently governing Eurojust will no longer fall within the scope of the Government’s 2014 opt-out decision, under which the Government are seeking to rejoin the current Eurojust arrangements as part of their 2014 opt-out decision.

In the House of Commons debate last week, the Minister referred to government concerns about the proposed connections between Eurojust and the proposed and strongly opposed European Public Prosecutor’s Office. The Minister also expressed government concern about the proposed new Eurojust regulation creating mandatory powers for national members. These powers, said the Minister, would allow a requirement for coercive measures at a national level with the ability to insist that national authorities take investigative measures in some circumstances, which could cut across the division of responsibilities and separation of powers between police and prosecutors in England, Wales and Northern Ireland, and the sole ultimate responsibility of the Lord Advocate in Scotland for determining investigative action in Scotland.

Unusually for this Government in regard to a European Union agency, they publicly rather value Eurojust. Their stance indicates they would prefer to stay in rather than find themselves outside because they do not like the look of the new regulation once it has been adopted following the deliberations of all those member states participating in the negotiations. In this regard it would at least clarify the Government’s position if the Minister could indicate whether, if the European Public Prosecutor’s Office proposal does not proceed, and with it the references to the link up with Eurojust, the Government will still not opt in to the proposed Eurojust regulation unless other significant changes are made to the proposed regulation. In other words, is it the connection with the EPPO proposal that is the showstopper for the Government or are there other aspects of the proposed Eurojust regulation that the Government also regard as a showstopper as far as opting in to the regulation is concerned?

The Government should be able to answer that question in general terms since they are not disclosing their negotiating position on what significant changes would be required as, under their stance in the House of Commons, they do not intend to opt in to negotiations anyway on the proposed Eurojust regulation. What the question does—if the Minister will give a straight answer—is indicate whether the Government’s relative enthusiasm for Eurojust is greater than their dislike of the proposed new regulation as it stands minus any interweave between Eurojust and the EPPO, or whether the Government’s dislike of the proposed new Eurojust regulations minus the interaction with the European Public Prosecutor’s Office is still such that if there is no significant change in the regulation in line with their position, they are prepared to accept no longer being a full participating member of Eurojust.

The view of your Lordships’ European Union Committee is that were it not for the provisions governing Eurojust’s interaction with the EPPO, the argument in favour of the UK opting into the negotiations would be clear and the committee would have no hesitation in recommending that the UK opt in. The committee’s view is that the Government’s key issues with the text could be dealt with during the proposal’s negotiation, but they recognise that the Eurojust proposal has not been brought forward in a vacuum but is closely associated with the Government’s policy towards the EPPO proposal. However, as has already been said, there will be changes in relation to the EPPO proposals since those proposals have been given what I think is known as a yellow card as a result of decisions by a not inconsiderable number of member states’ national Parliaments, which means that the Commission is now required to review its position.

The European Union Committee considers that the non-participation in the EPPO by other member states in addition to the UK, will inevitably mean that the contentious aspects of the proposal dealing with the reform of Eurojust will be subject to negotiations in the Council, and that the United Kingdom ought not to miss out on such negotiations. The committee takes the view that if the UK Government decide not to opt in to this regulation they will not be at the table for the important discussions addressing the position of those states wishing to co-operate within Eurojust but who choose not to participate in the EPPO. The committee says that it could not advocate such a course of action.

Referring to the Government’s position that they value the work of Eurojust, the committee says that it cannot foresee a situation whereby in practical terms the UK would be allowed to remain a full participating member of Eurojust operating under defunct or superseded legislation that they have decided to opt back in to, while the other participating member states co-operate under the new proposal once it is agreed. The European Union Committee has therefore recommended that the UK opt in to the negotiations on the proposed Eurojust regulations. Its report points out that the Director of Public Prosecutions said that the UK’s involvement in Eurojust provides many benefits and in his view represents good value for money, and that the Lord Advocate said that he would be concerned if the UK left Eurojust.

In his letter to the chairman of the European Union Committee, the Minister in the other place said that the Government would take an active part in the negotiations to protect the national interest, and also on the EPPO. The Government, he said, would also continue to challenge the Commission’s evidence base and justification for bringing forward the Eurojust proposals at this time. In addition, the Minister said that the Government would oppose any changes that would reduce the influence of member state representatives over the functioning of Eurojust, and seek confirmation that the opinions of Eurojust acting as a college are non-binding on member states.

Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Tuesday 29th October 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, scrutiny can be misunderstood. Criticism, however gentle and constructive, can be heard as objection. Therefore, I apologise to my noble friend the Minister that tonight I focus on what concerns me in the Bill—many aspects of which I welcome. However, I am explicit in welcoming my noble friend Lord Paddick.

The focus of the Bill is the issue of victims, which is hugely important. As I thought about anti-social behaviour, which can have an enormous impact, I also thought that identifying all victims is not always easy. Perpetrators may be victims, too. Those who engage in conduct capable of causing nuisance and annoyance may themselves be the victims of health problems, learning difficulties or the failings of society. They may become society’s victims because the response, through measures such as these, is neither appropriate nor effective. They may be victims in the traditional sense—for instance, beggars run by criminal groups.

I welcome the inclusion of positive requirements to help turn around behaviour, which, of course, is resource-intensive. However, there seems to be a blurring of lines between the civil and the criminal. We have due process for a reason: to differentiate between the factually guilty and the factually innocent, and thus between those who should and should not be subject to sanction. However, here we are without the criminal standard of proof that would be appropriate and strict liability means that we risk using orders against those who do not comprehend fully their actions or their impact. That, of course, is once we get past whether we should address through these measures conduct of as low a level as nuisance or annoyance, in the normal sense of those words. The terms are very wide; you do not even have to travel on the Clapham omnibus to invoke them.

Indeed, some people truly regard as a nuisance what is to others the exercise of civil liberties—many of your Lordships will have heard representations from naturists on this point. Other people will regard conduct that is a nuisance to some as simply normal. Some immigrant communities gather on the street because that is normal to them, but it may make other local residents uncomfortable. ACPO commented yesterday on the importance of not becoming,

“intolerant to normal child-like behaviour”.

It is alert to this, of course, because the police have to respond. We all know that legislation cannot do everything but, to quote ACPO again, talking about the importance of diverting young people from committing anti-social behaviour,

“A small minority of children and young people commit anti-social behaviour so enforcement responses need to be proportionate and effective”.

I would like to understand better why ASBOs have not been successful, given that there is such a high rate of breach. I am depressed that the impact assessment for this Bill assumes a breach rate of 40% for IPNAs, which must mean considerable reliance on the criminal or contempt of court proceedings without, for adults, the possibility of community penalties.

I will mention two other aspects. In the criminal courts, the default position is not to name and shame a child or young person for reasons of rehabilitation and safeguarding. I would like to see the same approach here. In my view, imprisonment as a sanction for breach of a CBO, an IPNA or a dispersal order, particularly in the case of a child, is not proportionate. Surely any action that justifies detention will be an offence under other legislation. In 1997, the then Government said that ASBOs would rarely be used against under-18s but that has not been the case. It is a reminder that legislation needs to be precise.

The response to many of these points often directs us to guidance and judicial discretion to mitigate harsh impacts. Even if it is appropriate that a matter gets as far as a court, I, for one, would prefer to rely on the law as expressed in statute. My noble friends Lord Dholakia and Lady Linklater, who are voices of compassion—including for those at risk of harm, whom I do not want to be thought to be ignoring— and experience of the dangers of stigmatising and criminalising, will have a lot to say on that part, I am sure.

The community remedy documents, which have been mentioned, involve the community, and I welcome that, but, as their object needs to be solely punishment, should we have concerns such as those which this House expressed when police and crime commissioners were introduced? In preparing these documents, a PCC, for electoral reasons, might not take a rounded view but might respond in a rather simplistic manner.

Having talked about proportionality and reasonableness, noble Lords will not be surprised by my reservations about dispersal powers, which I fear are too restrictive for a society that values its freedoms. I do not even get as far as mere reservations about riot-related powers of possession. Generally, the powers of eviction that the Bill introduces worry me intrinsically and for practical reasons, including the duties of local authorities whose role across the Bill needs more exploration. Nor will noble Lords be surprised at my view that public spaces protection orders are potentially oppressive. That is one issue where we are asked to look to guidance. My noble friend Lord Greaves will have a good deal to say on that.

My noble friends Lady Doocey and Lord Redesdale will talk about dangerous dogs. I take the view that the legislation should be about dangerous owners. No doubt my noble friend Lord Marks of Henley-on-Thames, along with the other stellar cast of lawyers, will address the extradition provisions in forensic detail. I warn him that I will join in on the issue of compensation for miscarriage of justice. Happily, far fewer people are affected by that than by other parts of the Bill—which is an argument in itself for not rolling back the law—but it is ironic that the burden of proof is lowered at the start of the Bill and then raised at the end when it deals with individuals who suffer a miscarriage of justice at the hands of the state. They should not have to prove their innocence, a concept not used elsewhere in the criminal justice system.

Many of my noble friends will speak about forced marriages. I give no guarantee that their views will be the same. I confess that I am not convinced about criminalisation. It has not eradicated female genital mutilation. The danger of increased underreporting because of fear of incriminating family members seems real to me.

My noble friends Lady Harris of Richmond and Lady Doocey have long been concerned about the powers and effectiveness of the IPCC. The accountability and professionalism of the police is particularly topical. So is the extent of the Schedule 7 powers under the Terrorism Act. My noble friend Lord Avebury and I will have a good deal to say in Committee on this, when we will want to understand the justification for powers that are still very broad. I welcome the proposed changes as far as they go, but without justification for the changed powers and how they are exercised in practice public confidence is jeopardised.

I return to and finish on the early clauses. These are not my words but those of Kevin Brown of Newcastle University, whose work on this I read with interest. He said that balancing can become a zero-sum game when policymakers assume that by taking rights away from one set of people they can improve the lot of another.

Drugs

Baroness Hamwee Excerpts

Thursday 17th October 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, it is no surprise that this has been a very intelligent debate on a multifaceted issue. I congratulate my noble friend on packing so much into a scarily short time. I attended a seminar a little while ago. During the first session, the politicians blamed the media for blocking debate through overdramatic reporting. The second session was led by a journalist, who blamed the politicians for being risk averse. We say something about this in the report of the APPG, which is led so energetically by the noble Baroness. I add my thanks, too, to Frank Warburton and Jonathan Hurlow, who did a huge amount of work on it.

We said that we recognised that politicians were apprehensive about proposing change because they might be perceived as irresponsible or soft, so they shy away from rational decisions. The report states:

“Our current drug policy suggests a preference for a flawed policy rather than appear soft on a contentious issue”.

That was addressed to all politicians. However, changes are afoot. Like others, I am attracted by the Portuguese approach of—the description is perhaps more accurate than “decriminalisation”—depenalisation. It is not a soft option, nor is it regulation. There, the number of young people becoming addicted is falling, and so are drug-related deaths.

I will focus on one part of the all-party group’s work. We realised that the world had changed. As others said, drugs are traded on the internet. If we close a site here, another will pop up there. We may ban a new drug, but already there will be several in the pipeline, because scientists in China are poring over published research—using the detail of what is in the public domain—to make small changes in the composition of the drug so that it does not fall within the current classification. It is simply not possible to keep up under the system that we have now.

They are called “legal highs”. Well, yes, they are not illegal—but how do you get over the message that not being illegal does not mean that the drugs are not unsafe? As for cigarettes and alcohol, I cannot defend the fact that some drugs are taxed and some are banned.

The all-party group welcomed the fact that temporary class drug orders do not criminalise the user—not least because a criminal record carries so many problems with employment, relationships and so on, but does not necessarily involve treatment. We heard that some young people use new psychoactive substances—legal highs—because they do not want to break the law. I do not discount that. However, the orders seem to feed a drive for the development of alternatives that are subject neither to the orders nor to the Misuse of Drugs Act. Those alternatives may be very dangerous because their contents are unknown and change from week to week, and because young people make their own risk assessments without reliable information. A harm-based policy, which must be the logical approach, suggests that temporary orders should be in place long enough for a comprehensive risk assessment, with the benefit of avoiding criminalising young people.

The Misuse of Drugs Act is clunky. A witness told us that the system was designed to cope with alcohol, heroin and cocaine, one at a time. It focuses on criminal activity, with the obvious difficulty that if neither users nor police know the content of a substance, in the absence of accurate field-testing devices, what do you do? This and more led to our recommendation that the ACMD should become an independent decision-making body,

“to oversee risk analyses; coordinate the research they need; and make decisions on a scientific basis as to the correct classification for each drug, beginning with new psychoactive substances”,

leaving the politicians to focus on political decisions.

Of course, we need to be as imaginative as the suppliers and to look at all possible responses and tools, such as the use of the internet for good and using trading standards personnel. At the moment they are constrained in what they can do and frustrated by knowing that there has not been any deception of a buyer, who knows that they are not buying plant food or bath salts. It is a very odd collusion.

Like the noble Lord, Lord Birt, I was around in the 1960s. I do not know whether that qualifies or disqualifies me, but life was simpler then. The “war on drugs” is indeed too simplistic, and I have been greatly cheered by a lot of the views that I have heard today.

Visas: Foreign Domestic Workers

Baroness Hamwee Excerpts

Thursday 4th July 2013 Lords Chamber

[Baroness Farrington of Ribbleton]

My Lords—

[Baroness Hamwee]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford)]

My Lords, it is the turn of the Labour Benches.

Immigration and Security

Baroness Hamwee Excerpts

Thursday 4th July 2013 Lords Chamber

[Baroness Hamwee]

My Lords, I thank the noble Lord, Lord Marlesford, for an interesting speech on such a significant issue. The relationship between effective immigration controls and the interests of our security—the words used in the title of his debate—is certainly not the same as it was some years and some centuries ago. He talked about the kaleidoscope that has twisted again, of course, just in the past few hours.

I wondered what security was in this context. My noble friend Lord Alderdice tells me that in Northern Ireland during the Troubles they used to distinguish between those involved in the Troubles and ODCs: ordinary, decent criminals. I think that the distinction now between organised crime and terrorism across the UK is quite blurred. As the noble Lord has said, crime threatens security and funds terrorism. I wondered even more what was meant by a “border” in this context; I mentioned this to the noble Lord yesterday. Our physical border is hard enough to defend, with international aviation, a lot of coastline, trading, parcel services and so on, but of course it is the non-physical border and modern communications and their new challenges that are so much the subject of our attention, and so they should be.

The House has debated cybersecurity, which the noble Lord has mentioned, on a number of occasions. It is one of the areas in the national security strategy, along with organised crime, climate change, energy and so on, in which immigration controls certainly have a role, so it must be right that security is intelligence led.

There have been home-grown rebellions through the ages. Disaffection may take new forms now, although there was something very primitive about the attack in Woolwich. Those attackers clearly felt a need to talk to the world, as have those who have formed pre-suicide attack statements. What should we learn from this? What are the needs which those who recruit them are meeting? When talking about some people’s vulnerabilities recently, particularly those of young people, I realised how those have been exploited, how they are let down by the system, or feel that they are, how they feel unseen and not responded to, and that we could have been talking about grooming for sexual exploitation, gang recruitment or terrorism. We need to speak to the needs of these young people and to reach out to them in a way that they understand and not see the problems only through the lens of our own views.

I was grateful to the noble Lord, Lord Harris of Haringey, who I do not think is taking part in this debate but is in his place, for arranging a meeting earlier this week with representatives of a women’s network, the Shanaz Network, which grew out of the worries of mothers about their sons, and sometimes their daughters, and their vulnerability to radicalisation and finding the language and a way to talk to them about this. They said, although not quite in these terms, that fathers may tend to applaud their sons as being masculine and macho whereas mothers are much more inclined to say, “Stop and think”. They have searched for ways to say that, and I am sure in many instances have been very successful in doing so. I mentioned intelligence-led provision. I have heard it said that our security services, in recruiting or “turning “ people, think in terms of, “We must get this person”, not, “We must get to know this person”.

The other major issue that was more than touched on by the noble Lord is the competence—I use the word deliberately—of our border controls. The frustration of the Commons Home Affairs Select Committee is evident in its regular reports on the UKBA. I do not need to spell out what the backlog means at a macro as well as a micro or an individual level. In its last report, the Home Affairs Select Committee said:

“It is possible that tens of thousands of individuals whom the Agency has not been able to trace are still here … We are astonished that the Agency provided this Committee, and its predecessors, with information that turned out to be patently wrong on so many occasions over the last six years”.

I am not comforted by the outsourcing of immigration services, not least because I am not convinced that the level of training needed to undertake the job of, for instance, an entry clearance officer, which is important and often very sensitive, will be given, although I have no doubt that the Minister will tell us of the work that is being done to turn all this around.

Our borders are not under threat from mass movements of people, as is the case, for instance, in north Africa or Italy, but that does not mean that we should not think as seriously and thoughtfully as this debate allows others—I do not include myself in that—to do. We could, of course, turn the question on its head and ask what security we provide for migrants who are open to exploitation, but I suspect that is not what the noble Lord, Lord Marlesford, seeks from this debate.

Immigration Rules: Impact on Families

Baroness Hamwee Excerpts

Thursday 4th July 2013 Lords Chamber

Asked By

[Baroness Hamwee]

To ask Her Majesty’s Government whether they have any plans to review the social and economic impact on families of recent changes to the immigration rules.

[Baroness Hamwee]

My Lords, I could fill my limited minutes and everybody else’s with examples of the impact of the family migration rules introduced a year ago this month. The media covered some of them when the all-party group launched the report by the inquiry that I had the privilege to chair. Those affected tell better than I can the outrage, confusion, puzzlement and anguish of British citizens and taxpayers who had never for a moment expected that their country would put such obstacles in the way of them living with their family in that country.

The All-Party Group on Migration is supported by the Migrants’ Rights Network, which wrote the report, and I thank it very warmly. The report looks at changes to the rules that had previously required someone seeking to sponsor a non-EEA partner and any children to demonstrate the ability to maintain their family without recourse to public funds. Immediately before last July, that was equivalent to income support—about £5,500. A number of sources and a range of evidence of income were counted. Now the minimum income requirement is £18,600, a level that is not attained by getting on for half of British workers, and there are considerable regional variations. The minimum income requirement is greater when there are children and can be met only through limited sources. Those who are successful at the initial stage of application must meet other criteria at later stages, but it is too soon to see their impact.

There is also a block—I use that term advisedly—on applications by adult dependent relatives to join British citizens and permanent residents here. They have to demonstrate a very high level of dependency, one which suggests to me that they would not in fact be able to travel, and that the sponsor’s financial support is not sufficient to provide care in their own country. Will the Minister give an example of when an application by anyone in this group could be successful? If you have the money to meet the requirements to come here, you have the money to be supported in your original country.

The Migration Advisory Committee was asked about the income needed to support applicants,

“without them becoming a burden on the state”.

That is an economic remit, and it gave economic advice, but as the MAC recognised, there are also legal, moral, and social dimensions. Our report calls for an independent review as to these impacts. Noble Lords will be familiar with the work of Oxford University’s Centre on Migration, Policy and Society. COMPAS is just the sort of organisation I have in mind to do such a review. It also calls for a review of the income level and how the system is working. I am well aware that the Government have said in recent answers to Parliamentary Questions that the rules are working as intended. They say that they will keep the impact under review without having any proposal to conduct an immediate review.

A study by Middlesex University suggests that preventing up to 17,800 migrant partners—the Government’s estimate—from coming and working here will cost the UK as much as £850 million over 10 years in lost economic activity. There is no evidence that most migrant partners have claimed public funds during their first five years here. Most, in fact, work and pay tax, and want to do so. Conversely, excluding a partner may increase claims on the state. A single parent may need support, which would not be necessary if there were two parents here to share the care of the child. Both sets of rules are driving out some of the very people who contribute significantly to our society. Of course, that is a double win if this is a numbers game.

The reality of the finances of many families does not fall neatly within narrow criteria. What about an incoming partner’s employability and earnings or indeed a significant job offer? Surely it would be sensible to review the exclusion of these. A lot of employment does not come within tier 2, an alternative route which is often suggested as being available. What about self-employment? It is subject to peaks and troughs and it is not always evidenced in the easy ways that the Government would want; but as a country we want entrepreneurial spirits. What about the length of time that savings must be held and their form when an applicant relies on savings in lieu of earnings? This affects people over a range of circumstances. I have to say that I think anyone holding an awful lot of liquid cash is likely not to be handling his assets very well. I have just heard of a high-net-worth couple that we would surely want within our tax base here who have relocated to another country because of the rules. I urge the Government to review the application of non-cash assets. What about the assistance available from family members—members who feel it natural and who are desperate to help their younger family members? This is felt particularly acutely by grandparents who want to be part of their grandchildren’s lives but cannot if what they can provide by way of accommodation and money cannot be counted to meet the requirements.

A child’s early months and years are hugely significant in his development, not merely—if “merely” is the right word—his well-being. In another part of the legislative forest, a child’s welfare by statute is paramount; so says the UN Convention on the Rights of the Child. Noble Lords are of course very familiar with Article 8 of the European Convention on Human Rights and with Section 55. It was as recently as Tuesday that we discussed in debate on the Children and Families Bill a government clause providing for a presumption that the involvement of a parent in the life of a child will further the child’s welfare. The four UK Children’s Commissioners support an independent review and that the obligation to secure a child’s rights to a family life be reflected. The Chief Inspector of Borders and Immigration recommends that the best interests of the child should be referred to expressly in decisions. We now even seem to see parents who are not allowed to live here being refused a visitor’s visa. It is no answer that the Briton should take his British children and live abroad if that is not the best for his family. I heard someone affected by these rules on a radio phone-in say that he was building up a business here—and that there just was not much call for mortgage-broking in Nigeria.

There were some changes in April to the evidence of means that it is required but—this point applies much more widely than to this type of application—the evidential requirements are not sufficiently clear or straightforward for applicants to understand. I do not think it is appropriate that we have managed to create a system where the ordinary applicant has to find legal advice. Indeed, it is a sorry state of affairs if the scope for flexibility and discretion in an assessment is constrained by the abilities of entry clearance officers and other immigration staff.

I would like to talk about the time taken for dealing with applications and appeals, whether the objectives of promoting integration are achieved, whether the rules support family life—which is clearly an objective of the Government—and about the amount of taxpayers’ money which is being spent, and will be spent, on government lawyers defending decisions, but I have to leave time for others who I hope will talk about the real human dilemmas.

We have a higher income threshold than any other major western country except Norway. We are out of step with the rest of the EU. Is it right that if, for practical reasons, you are not able as a couple, one of you not being an EEA citizen, to move to Ireland or France to live and work there for just a few months and then come to the UK under the treaty as EU citizens, you are denied the opportunity to live in this EU country as a family?

We live in an interconnected world, a term which was used in the previous debate. British citizens fall in love with people from Canada, Bangladesh, Costa Rica, Chile and Australia. We want to protect our reputation, a point which is often raised in connection with student visas. We want to protect our values, care for our parents, and have a family life. One of those values is fairness. These rules are not regarded as fair by so many of our fellow citizens. I therefore repeat the inquiry’s call for a review because of, as I have said, the outrage, confusion, puzzlement and anguish that are being felt.

Global Migration and Mobility (EUC Report)

Baroness Hamwee Excerpts

Thursday 6th June 2013 Lords Chamber

[Baroness Hamwee]

My Lords, it is always a privilege to follow Members of the Bishops’ Bench and I agree very much with what the right reverend Prelate said about human trafficking—the dark industry.

I was impressed by the number of speakers who put their names down for this debate. It says a lot, both for the concern of Members of your Lordships’ House about this issue and the value of the report, which I was fascinated to read. I join with others in thanking the noble Lord, Lord Hannay, and the committee for producing a fascinating report.

I realise that to say that we live in a global world is tautologous, but it is certainly an internationally connected world and needs more than a national approach. This is acknowledged both by the report, which says:

“The UK’s migration policy … should not be formulated and implemented in a vacuum”,

and by the Government, who say that,

“Member States’ needs differ greatly, so a ‘one size fits all’ approach to migration and growth would be counter-productive”.

Of course, each state has its own characteristics and needs. There are differing needs even within the UK. We are used to hearing explanations for our migration policy that point to highly skilled people who are so desirable for our country and our economy, but I always think that we should be grateful for the not necessarily technical skills that people from different cultures bring to our country, in particular from those cultures that are very good at caring. My goodness, our society needs people who are good at caring as well as the high-tech end of social care and medicine.

Having spent a lot of my political life in London, I tend to look at a lot of what we do from a London perspective. Yesterday at a lunch I sat next to a retired Permanent Secretary, who was reminiscing that when he was working as a civil servant, London’s population was 8 million. The population now is 8 million, approximately the same as it was in 1961, and indeed in 1931, but as he recalled, when the population was falling in the 1960s and 1970s, we thought the world was going to come to an end; now we think the world might come to an end because it is getting too big.

Of course, concerns about London reflect concerns about students. I am not surprised that other Members of your Lordships’ House have chosen to focus on this issue. The university sector is not short of champions here. As we know, the Government tell us in their response that the anti-abuse reforms have been targeted at the non-university sector.

Concerns about reputation—about our country not being welcoming, as my noble friend Lord Sharkey said, and the feeling that this country does not really want to do business with some other countries—has a knock-on. There are economic effects as well as the reputational ones and effects on business in the widest sense. That involves more than just universities. Perception is very important, and the quicker that the Government can recover ground in this area—the perception about this is unhappy and uncomfortable—the better.

The confidence of our business community is affected by the difficulties in this area to do with process. The concerns among people to whom I talk about immigration are often as much about process as they are about policy. One hears examples such as, “My clients decided not even to bother to try to get visas for particular people to come to work in this country. They are just going straight to Frankfurt”. I think that my noble friend Lord Clement-Jones will speak about tourist visas. That is one concern that the London business community has drawn to my attention and, no doubt, to that of other noble Lords. It mentions that the UK has improved its position in its overall competitiveness as a tourist destination from seventh to fifth in the recent WEF rankings, but we have dropped 24 places in the competitiveness of our visa requirements. We have slipped from 22nd to 46th. London First comments that competitor destinations are doing better at forging relations with new high-value tourism markets, such as China, with Paris, for example, attracting between five and eight times as many Chinese visitors as London.

It is clear to me that a lot of policy is driven by the effectiveness or otherwise—the competence, if you like—of the process, particularly the entry clearance process. It is of course very difficult to suggest that discretion should be applied to immigration applications. I am not going anywhere near that, but the ability to assess information is very important and does not seem to be in oversupply in the entry clearance system. I have no idea of the result when one is faced with an irritating tinkly version of Vivaldi when trying to get through on the telephone to follow up visa inquiries, but I know of considerable frustration that it is simply impossible to talk to a real person.

As I said, process as well as policy is important to build and retain trust among more than the business community, to which I have referred. I was interested that one of the four thematic priorities of the GAMM is organizing and facilitating—I stress the word facilitating—legal migration and mobility. Obviously, that begs the question of what is legal, but, like my noble friend, I took particular note of the paragraphs on family reunification. There was the recommendation that,

“there could be problems with a situation that admits spouses and children more readily to one Member State than another, considering that, once admitted they may eventually acquire the right to freedom of movement throughout the EU. We repeat our view that the Government should seek to opt-in to the Family Reunification Directive”.

British citizens who marry non-EEA nationals and then find that they cannot live in their own country with their partner and children as a family unit or be with elderly parents in the UK because they cannot meet the requirements—which are among the toughest in Europe—regard this, to use a mild term, as unfair. It is puzzling to them. It will not have crossed their minds that this might be a problem. The sense of hurt, betrayal, anger and so on is not reduced when they find that the UK is out of line with the rest of the EU.

The Minister is aware of a piece of work with which I have been concerned. We will be launching our report about family migration on Monday, but I want in this context to share one small piece of evidence received by the group which looked at this. The submission went as follows:

“I served in the British Army for 9 and a half years, have a First Class Honours degree and my husband is also degree educated and currently earning more than I do [overseas] … I am antagonised by the fact that citizens of the EEA face none of these obstacles when bringing their non-EEA spouse to the UK, yet I, a British citizen and former member of the British Army, am not entitled to the same rights in my own country”.

Several noble Lords remarked on integration being of the highest importance. I was impressed that my noble friend Lord Sharkey was able to ask questions about the paragraph in the Government’s response on that because, frankly, I found it quite difficult to understand. As for localisation, yes, local organisations have an important role to play, but that did not seem to be an answer to the point. The right reverend Prelate talked about a ragbag of resources in this context. I would prefer that we find a toolbox, not a set of leftovers, to address it. I do not think that he meant to suggest that. Like him, however, I regard this as an overwhelmingly important issue.

Queen’s Speech

Baroness Hamwee Excerpts

Thursday 9th May 2013 Lords Chamber

[Baroness Hamwee]

My Lords, when my noble friend opened this debate, he said from the Front Bench that he looked forward to working with candid friends throughout the House. I can assure him that we will be friendly and candid.

Archbishop Vincent Nichols, in his homily at a service on Monday, said that,

“the right policy will always be guided by courage and generosity and not by appealing to fear or pessimism”.

I added to that list, as guides, sound information, logic and a clear head. I have also just added “not acerbic or polemic language”. That could be applied to any subject, but in fact the subject was migration, and he was speaking at the mass for migrants. Time and debate both in and outside Parliament will tell how the Bill is guided, and whether it appeals to fear and pessimism.

The components of the Bill are not wholly clear. In March, announcing the splitting up of the UKBA, the Home Secretary said that a Bill in this Session would address its “complicated legal framework”. That matter does not seem to have been discussed publicly but presumably will occupy us. If it is to be part of the Bill, what of the Immigration Services between now and the commencement of legislation—or is that an administrative matter?

There has been much discussion of restrictions on services and benefits for immigrants, where fear—as many noble Lords said—is too easily whipped up. The big question is whether it is the right thing to do. Another question is whether it is workable. I hope that, before the Government bring forward a Bill, they will undertake very full consultation with landlords who may be required to check the immigration status of tenants, with employers who are already required to check for possible irregular migrants—how realistic is it to give them further immigration responsibility, and how are confusion and discrimination to be avoided?—and with health professionals, who I am sure do not want to go down the road of, “We need to see your papers”, which would be comparable to, “We need to see your insurance” in the US. A framework Bill against a background of an arms race of rhetoric would not be the reminder that we need of the benefits that our country has gained and continues to gain from immigration.

We understand that the Bill will also deal with the deportation of those who have no legal basis to remain. We must be concerned about the impact of that on refugee and migrant children and families, including unaccompanied children and those trafficked into the UK. I echo the reference of the right reverend Prelate the Bishop of Lichfield to the wide impacts of the administration of the immigration system. This in part takes us back to the quality of decision-making. If legislation is to include what is currently within the immigration rules, in what position does that leave the thousands of other rules? I do not understand the need to upgrade.

I mentioned trafficking. I was delighted to hear the Prime Minister say bluntly the other day that trafficking is slavery, and announce his intention to involve himself closely with the issue. On that occasion he met a woman who had escaped domestic servitude—eventually. She was helped by the wonderful little charity Kalayaan, which reports the markedly worse treatment of those it encounters on the relatively new tied migrant domestic worker visa—tied, that is, to the employer. This must be an unintended consequence that we could address in the legislation.

Much of the impact of other rules introduced last year on family migration must have been unintended and unforeseen. I am at the moment involved in an all-party group looking at these rules, and we are working on our report. I will share two stories with your Lordships. The rules make new provision for bringing to the UK adult and elderly dependants. We heard from the BMA of a woman consultant in the NHS who was unsuccessful in her application to bring to the UK her elderly parents, for whom she wanted to care. She decided to move back to Singapore. Her sister, feeling that it was wrong that only one child should take on this responsibility, moved back with her, as did her brother-in-law. They, too, were consultant psychiatrists. This country lost three consultants in that one episode. One was a psychiatrist specialising in children with learning difficulties—a very specialised specialty, if I may put it that way. If all we are looking at is numbers, I suppose that was a double win.

We have also raised considerably the minimum income threshold and other financial requirements for applications to bring in a spouse or partner—with any children—who is a non-EEA national. We heard from a gentleman living in Swansea, an area of very low wages, who is earning an adequate wage for his area but well below the threshold. He has an autistic daughter, and he would like to bring his new wife to this country from Canada, but he is not able to do so because of the financial limits. That woman would help to care for the daughter, which would be a saving to the state, not a drain on it. We heard, too, of British children separated from a parent because of the tightness of the rules. I was particularly struck by hearing more and more of the understanding of the impact of separation on a child’s development, and the attachment disorders that may result.

We will address questions of attachment and identity when this House comes to the Children and Families Bill, to which my noble friend has referred, and the work of the Adoption Legislation Committee. There turned out to be both post and pre-legislative scrutiny. I was a member of that committee, and we will be debating that for the first time next week. I hope, too, that the Bill gives us an opportunity to consider modernising the birth registration system to reflect the diverse forms of family that we now have, and the right of children and adults to know their genetic origins as well as their legal parentage.

I had hoped that we would have some opportunity somewhere to address some aspects of drugs policy, if not wholesale reform—I am with the noble Baroness, Lady Meacher, on that.

In the last Session, the Government acknowledged the role of the victim in rehabilitation of offenders—and therefore, of course, as we all know, the prevention of further offending in future—in legislating for restorative justice. That was very delicate, but welcome. The community trigger for communities on the receiving end of persistent anti-social behaviour will also be delicate. These things need sensitive handling, and there is a difficult line between early intervention and prevention and assumptions of guilt. The fairly new Chief Inspector of Constabulary at the HMIC recently spoke about the police needing to focus on crime prevention, which is something that we would all support. I hope that he did not mean crossing that delicate line when he said that resources would be needed to,

“know where the offenders are—those who are wearing tags and those who are just known”—

I emphasise those words—

“to be the most prolific and persistent and dangerous offenders in the community—and take them off the streets”.

I hope, for my part, that the Bill will extend the restorative justice approach, working with a young person, and with those affected by anti-social behaviour, addressing root causes and perhaps building on acceptable behaviour contracts developed by some local authorities.

Another difficult line is to know what a result is, when an organisation is paid by results. I congratulate the Government on their determination to cut reoffending by recent ex-prisoners, especially those on short sentences—or, to put it another way, to help them back into mainstream society. The Government know that this needs facilitating different, new, imaginative, risk-taking ways of doing things. When I was making notes for today, I decided that I was really too weary of the terms “innovation” and “radical”, which I think are becoming a bit devalued. To find a way to succeed, an organisation must be allowed to fail. The St Giles Trust is rightly held up as a model of this way of working. It is admirable and engages ex-offenders to work with its clients to very great effect.

Conversations between all who come within the very extensive umbrella of stakeholders—another overworked term—must be the right way to go about things. In the interests of time, I will not develop that thought in relation to terrorism and counterterrorism except to say that we would not have got where we did in Northern Ireland if we had not been prepared to talk directly to terrorists. I wonder whether we need the same leap of imagination and faith to take creative steps not just with the moderates in various communities where there is a danger of breeding home-grown terrorism but also with the bad guys.

Terrorism was mentioned in the gracious Speech in the context of foreign affairs and so, too, was my final topic—preventing sexual violence in conflicts worldwide. This matter is more than prevention; it is a case of responding to people’s needs and giving aid. I congratulate the Government, particularly the Foreign Secretary, on the Preventing Sexual Violence Initiative. I very much hope that the Government will be able to use feedback on local capacity in conflict and post-conflict situations provided by those working on the initiative. We must not be yet another entourage of experts who come and go. We must build up lasting relationships as the way to achieve lasting change through working with local experts and local NGOs. After all, it is what we are trying to do at home with payment by results. NGOs in these situations often need very little payment to achieve very significant results.

At the migrants’ mass, Archbishop Nichols talked of very real pressures made sharper in hard economic times. That will be the focus of the Government, but I come back to his wise warning against appealing to fear and pessimism and his advocacy of the guides of generosity and courage.

Crime and Courts Bill [HL]

Baroness Hamwee Excerpts

Monday 25th March 2013 Lords Chamber

[Lord Blair of Boughton]

My Lords, I am sorry that the House is going to hear a series of commissioners being referred to and speaking. I have cut my speech right down because there was nothing that I disagreed with in the speeches that followed the Minister’s speech.

I shall emphasise one thing and ask one question. I gather that in the other place it was said that this is a procedural matter. It is not a procedural matter, but a matter of national security. The deputy national co-ordinator of counterterrorism, a Metropolitan Police officer acting under the command of the Metropolitan Police Commissioner, said in public this week that the terrorist threat is rising. As my noble friend Lord Condon said, and I can vouch for it from my time as commissioner, there has not been a single plot that did not arise in, pass through or aim at London. When the bombs go off, whether in London or Glasgow, only the Metropolitan Police can put thousands of officers on the road or fly people in Chinook helicopters to Scotland. That is because the Metropolitan Police is the size it is. The NCA will never be that size. That is one other aspect of why the Met is the right beast to do this job of enormous national importance.

I echo the points being made to the Minister. Has there been any evidence of failures in counterterrorism by the Metropolitan Police? There is no evidence that anybody seems to be aware of. Is there any evidence that having counterterrorism policing in a separate agency from territorial police forces is a good idea? No, there is not, and there is exactly the opposite if you look across the Atlantic with the divisions between the Department of Homeland Security, the FBI, the CIA, the New York Police Department, and so on. The person who first began to mention the idea that counterterrorism should be taken from the Metropolitan Police is one Boris Johnson. He made that point in 2008 at the Conservative Party conference. I would like reassurance from the Minister that the sectional interests of London Conservatives are not being put in front of national security because the reason that Boris gives for this is that it would allow the Mayor of London alone to choose the Metropolitan Police Commissioner without the influence of the Home Secretary. That is a very poor argument for imperilling national security.

[Baroness Hamwee]

What we are being asked to do this afternoon is to consider the procedure around a substantial issue, but it is the procedure. It seems quite logical that counterterrorism should be dealt with alongside and as part of dealing with serious crime and organised crime. They are often inseparable activities that fund terrorism, and I suspect they largely come within the remit of the NCA, or will do when it is in operation. The NCA will be able to task police forces. Can the Minister confirm that it will not have a lot of bodies on the ground, but will be able to task existing forces—including, presumably, the Met? Is this the way it is to operate?

I appreciate the problems about Northern Ireland, and I do not suggest that they are not important. I also take the point that it is vital not to disrupt effective working relationships, to which the noble Lord, Lord Reid, referred. Again, perhaps that is answered in part by the point about tasking.

We must at some point address overall how this House and the Commons deal with secondary legislation, but that is not a matter for now. The super-affirmative procedure seems to go as far as it can in allowing for consultation with an iterative-process response to comments on the part of the Government.

I did not think that I would ever hear myself say this, but this issue probably comes as close as anything to lending itself to a yes or no answer for this reason: whether there is a super-affirmative order or primary legislation, there will be regulations dealing with transitional arrangements and all the detail. Whichever procedure we have, it will not avoid those. The regulations will go through their habitual course.

Finally, can the Minister explain how, in legislative terms, counterterrorism is to be moved away from the Met, if it is? I am unclear whether any legislation is required for that part of the process. As I read it, counterterrorism is with the Met under a direction—not an order—from the Secretary of State. If that is so, then the Government’s proposals would mean far more involvement by Parliament than has hitherto been the case on this issue; I may have read this completely wrong and the Minister will put me right when he responds.

[Lord Kerr of Kinlochard]

My Lords, I find today’s business difficult. Two categories of difficulty arise. This provision is much less difficult. I find the case made by the noble Baroness speaking for the Opposition persuasive and familiar. I have heard it before. I agreed with it when I heard it in earlier stages of consideration. My difficulty when the Commons reject our proposals is that I always feel cautious about disagreeing with the Commons. However, in this case, they have not heard our reasons for removing this provision. I am inclined to go with the noble Baroness who spoke for the Opposition, and say again what we think, at least to ensure that the Commons hear and listen to it.

I have much greater difficulty with the provisions that we are going to look at today which we have never seen before. The point made by the noble and learned Lord, Lloyd of Berwick, and supported by the noble Lord, Lord Cormack, is very important. For us to have to look under this procedure at language and provisions which are entirely new and were not in the Bill that was worked on here, in a rushed debate, without time to take advice from outside, conflicts with the concept of the House of Lords as a serious revising Chamber. I hope that the Minister will think carefully about that.

--- Later in debate ---

[Baroness Howe of Idlicote]

My Lords, I rise to support the amendment moved by my noble friend Lord Ramsbotham. I believe that what happened in the Commons, the way in which this whole area was tossed aside and not debated at all, was disgraceful. I believe that the very least that the Government can do is to answer the three questions that my noble friend has put to the Minister. I would lay the greatest emphasis on having an annual report on progress that is made in the whole of this area.

I am especially concerned about the differences in the treatment of men and women for two reasons. First, there is a distinct difference in the backgrounds of women who are in prison for very short sentences. As we have heard, such sentences account for the vast majority of women—and indeed men—in prison. As one example, 5% of the prison population are women, and yet 31% of self-harmers in prison are women. The Government should receive full marks for starting to outline, at last, these plans, as we have begun to get a picture of what we hope will happen in the future. I am very supportive of these plans as there are so many women in prison who should not be there, certainly not to serve short sentences as is currently the case.

Secondly, and above all, these women should not be in prison because of the effect that it is having on their families. How many of those families will find their own way into prison as a result of having had their family broken up, having been taken into care or placed with relatives and, above all, having lost that very particular relationship between mother and child? I believe that that is the worst aspect of all. How many facts are we given about the number of families who are repeatedly in and out of prison in a continual spiral of offending?

Good luck to the Government with their plans, but please let us have a report on what is happening, and let us have real progress. Quite apart from the women concerned, I believe that we will find that this kind of treatment could be as applicable to men in our prison service. We need a whole overview of what goes on.

[Baroness Hamwee]

My Lords, I would be surprised if some Members of your Lordships’ House were satisfied with a report as infrequently as annually. The questions, rightly, will come quite often to my noble friend, as they have done over the years. I know that this is something that he holds close to his heart, as does Helen Grant. I note that the document published on Friday—which I, too, thought was shorter than expected—is headed Strategic Objectives for Female Offenders and does not purport to be a complete strategy.

Perhaps I may ask my noble friend one question which follows on from what the noble Baroness has just said. It concerns the effect on children of their mother’s imprisonment. I suppose that this is a plea to include that in the strategy. The developing knowledge about the effect on children of separation from their mothers is something that we should take very seriously, and no doubt we will be considering it in the Children and Families Bill. I hope that my noble friend can reassure the House that the whole-system approach which is referred to in the strategic objectives is a whole system that will extend in all the ways we know it should, and not just to the narrow punitive and personal rehabilitative aspects that we have mostly been talking about this evening.

[Lord Rosser]

My Lords, the Commons amendment seeks to strike out Part 7 of Schedule 15 to the Bill, which provided much-needed statutory provision for women offenders. Part 7 was successfully introduced into the Bill at Third Reading in this House but was subsequently struck out in Committee in the House of Commons without further debate.

The Government have just published their promised Strategic Objectives for Female Offenders setting out their priorities, and they have also announced the setting up of a new advisory board for female offenders chaired by a Home Office Minister which is intended to support the Minister,

“in providing strong leadership on delivery of our strategic priorities”.

However, these developments do not remove the need for statutory measures to ensure that the distinct needs of women in the justice system are prioritised and met. I understand that there have been 10 previous reports across the UK on the matter of women in the justice system, but none, it seems, has been implemented in full. In the light of the publication of their strategy but in the absence of any statutory backing, how will the Government ensure that all contracting areas in the new environment make provision that is appropriate to the particular needs of women, and how will the Government ensure that progress is sustained and built upon?

It is not clear why the Government do not want to take this legislative opportunity to deal more effectively with women who offend. To begin with, funding is not ring-fenced for service provision delivered by women’s centres or women’s services, and a number of them fear significant funding cuts or even closure. The inclusion in the National Offender Management Service’s Commissioning Intentions for 2013-14 of an intention that provision should take into account the “specific needs” of women offenders falls far short of any statutory guarantee of women-specific provision. There is evidence in recent research published by the Equality and Human Rights Commission that commissioning procedures and outcomes have already had a negative impact on the funding of women-only services, including services for women offenders and those at risk of offending. In the Strategic Objectives for Female Offenders the Government recognise that the,

“relatively small number of female offenders presents particular challenges”.

Unless there is statutory underpinning for women’s community provision, there is a risk that this will result in inadequate provision.

Provision for women offenders in the community is probably best described as patchy and its future uncertain. Unless and until the courts are confident that effective community penalties are available in their area then vulnerable women will continue to be sent to custody to serve short sentences for non-violent crimes. I know the figures are well known, but over half the women in prison report having experienced domestic violence and one in three has been sexually abused. Most women serve very short sentences, with 58% sentenced to custody for six months or less; and 81% of women entering custody under sentence had committed a non-violent offence compared with 71% of men. Women also account, as the noble Baroness, Lady Howe, has said, for 31% of all incidents of self-harm, despite representing just 5% of the total prison population.

The recent joint inspection report on the use of alternatives to custody for women offenders found a lack of women-specific provision for both unpaid work and offending behaviour programmes and noted that,

“women-only groups, where run, were often successful”.

It found that,

“women’s community centres could play an important role in securing a woman’s engagement in work to address her offending and promote compliance with her order or licence”.

At the moment, it looks as though government funding for the national network of women’s centres will be substantially reduced and that, for some, it may run out very soon. The future of the centres under payment- by-results commissioning is uncertain. Placing community provision for female offenders on a statutory footing will at least help to protect the vital role played by women’s centres and other local services in the effective delivery of community provision for women.

If the Government are not prepared to legislate now on this issue, do they have plans to do so at some stage in the future? It is not proposed changes in the provision of probation services or a changed landscape that is preventing the Government making statutory provision. That, frankly, is a red herring: a Government wanting to legislate would not be deterred by that issue. If the Government have no intention at all to legislate, then at least will a Statement be made each year to Parliament, as the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, asked, on the progress being made towards improved provision for female offenders? That, surely, is the least the Minister can offer when he stands up to give his response.