Immigration Bill

Debate between Baroness Hamwee and Lord Bates

Monday 21st March 2016 Lords Chamber

[Baroness Hamwee]

I may have missed it, but the noble Lord, Lord Hylton, asked the Minister whether he had an update on the figures for grants outside the rules on the basis of exceptional, compelling, compassionate circumstances. The year before last it was 12. Can the Minister tell us the updated figure?

[Lord Bates]

I do not have those updated numbers, but I will be happy to write to the noble Baroness. I mentioned a figure of 21,000, but that referred to the whole group of family reunion cases that came to the UK between 2011 and 2015.

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[Baroness Hamwee]

My Lords, I have added my name to these amendments and I was planning to say nothing more than that I agree with everything the three previous speakers have said. However, the point made by the noble Baroness on definition seems to need clarifying. When the Minister has considered that, if there seems to be any doubt that has to be resolved in correspondence, it should be resolved in the Bill at Third Reading. If there is a problem, that is where the resolution needs to be.

[Lord Bates]

My Lords, I thank the noble Earl, Lord Listowel, for moving the amendment. He is one of the Members of this House whom we all greatly admire. He focuses on a particular area that he cares passionately about—namely children, particularly children in care, and seeks to introduce their voice into all pieces of legislation that go through your Lordships’ House. That is to his credit and we appreciate him in that spirit. My officials and I were grateful for the opportunity to meet with the noble Earl about his amendment, and I know that James Brokenshire, the Immigration Minister, was grateful to have the meeting with the Alliance for Children in Care and Care Leavers on 8 March.

The noble Baroness, Lady Lister, invited me to write another of my famous letters. I was particularly proud of the one that we wrote on 11 March following the meetings and the consultation. Not only did we listen to the concerns that were raised, but on page 4 we went into some detail about how we would respond to those concerns. We said that we would look at how provision should be geared to what the local authority is satisfied is needed to support a person through their assisted voluntary return or forced departure. Let us just be clear for those who may not have followed all the aspects of this issue. We are talking about people in local authority care who, after various appeals for leave to remain, are deemed to have no legal right to be here, and furthermore—this is very important from the perspective of the noble Baroness and the right reverend Prelate—there is no barrier preventing their return. These are important provisions to bear in mind in relation to the group that we are talking about.

I emphasise that the great majority of care leavers are not affected by the changes in Schedule 11, including those with refugee status, leave to remain or an outstanding asylum claim or appeal. They will all remain subject to the Children Act framework. Under new paragraph 7B of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, this also includes those who have been refused asylum but have lodged further submissions on protection grounds that remain outstanding, or who have been granted permission to apply for a judicial review in relation to their asylum claim.

Under new paragraph 2A of Schedule 3, the Children Act framework will also continue to cover those awaiting the outcome of their first application or appeal to regularise their immigration status where, for example, they are a victim of trafficking. This means that the young adults affected by the changes in Schedule 11 will be those who have applied for leave to remain here on asylum or other grounds but have been refused, and who the courts have agreed do not need our protection, have no lawful basis to be here and should now leave the UK.

I shall now deal with the points referred to by the noble Earl and the noble Baroness. It is possible for individual cases supported by local authorities under the new 2002 Act framework to continue in a foster placement or to be supported by a personal adviser where the local authority considers this to be appropriate. That is an important safeguard.

The noble Baronesses, Lady Lister and Lady Hamwee, asked about the meaning of “unaccompanied” in Clause 64(10), concerning the transfer of unaccompanied asylum-seeking children. We understand the concern to ensure that all relevant cases are properly safeguarded, including victims of trafficking. We will set out in writing how we intend “unaccompanied” to be defined and how it will operate. My notes do not say when that will be, but it will be done by Third Reading. That is an important point and I am grateful that it has been raised.

The noble Baroness, Lady Lister, asked about care leavers being dispersed across the country. These cases will qualify for Home Office support under new Section 95A only where they are failed asylum seekers facing a genuine obstacle to departure from the UK. It will be possible in these cases for the person to remain in local authority accommodation funded by the Home Office—for example, while they await a travel document from their embassy. We will develop appropriate guidance with the Department for Education on those cases. I am sure that the views of the organisations that the noble Baroness referred to will be valuable in formulating that guidance, and would be appreciated.

Immigration Bill

Debate between Baroness Hamwee and Lord Bates

Tuesday 15th March 2016 Lords Chamber

[Lord Bates]

It is absolutely right for the noble Earl to draw attention to that. I certainly give him that undertaking. We will bear in mind those particular points precisely when we construct the guidance which will be laid before Parliament.

[Baroness Hamwee]

My Lords, I am grateful to everyone who piled in on this. Again, there is an awful lot that we are not going to agree on—but I will not repeat all the arguments I made in moving my amendment. However, I should make it clear that I was asking not about publication of the Home Office’s evaluation but about the work of the panel of the noble Lord, Lord Bates. I think that that is a separate issue.

[Lord Bates]

The noble Baroness raised that point in Committee. I went back to James Brokenshire and asked him whether the minutes could be published. That issue will be raised at the next meeting of the consultative panel. Because other private sector groups are involved there is, of course, a need to get their permission before any action of that kind could be taken. But that issue will be on the agenda for the next meeting of the consultative panel.

[Baroness Hamwee]

I am glad to hear that because it means that the last hour may not have been in vain. I still have concerns about mandatory conviction, discrimination—whether because or in spite of my intermittent Mancunian accent, I am not sure—and criminalisation. My amendment and that of the noble Lord, Lord Rosser, cover very much the same ground and we have discussed this. He asked for sympathy from the Minister. He always gets sympathy from this Minister. Therefore, I assume that he will not lead the troops to support the continuing pilot, if you like, which is the subject of both our amendments. Therefore, very sadly, as I do not want to take up the time of the House, I beg leave to withdraw the amendment.

Immigration Bill

Debate between Baroness Hamwee and Lord Bates

Wednesday 9th March 2016 Lords Chamber

[Lord Bates]

I shall do my best to address the point, and I hear what my noble friend says. He talked about the lack of pre-legislative scrutiny of the Bill, but of course there were two days of evidence-taking sessions in Committee in the Commons, which were all published and which actually helped us greatly in shaping many of these government amendments.

However, the Bill is particularly about protecting, if you like, in two ways. The first purpose of the Bill is to create some discomfort for those who are illegally in the UK so that they cannot have a normal settled life while they are actually trespassing on our laws and are here illegally. The other area, which I think should carry a great deal of support, is about making sure that those people who are here legally are treated properly. In that sense, putting those things together, we believe that the Title of the Bill still stands. I accept that there is an argument or debate on that, but I have made my response to that.

[Baroness Hamwee]

My Lords, with the leave of the House, I asked the noble Lord about a court in “a part” of the country, but I do not think that he has answered that question.

[Lord Bates]

I did not answer that, and it was a good question. There is a court in another part of the Chamber which is rushing advice to me, which will save another letter. In Amendment 21, what does the reference to a court in a “part” of the UK mean? Part of the UK in the context of these provisions on court proceedings means jurisdiction—whether the court is in England and Wales, in Scotland or in Northern Ireland. I hope that is helpful.

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[Baroness Hamwee]

Mr Ewins’s report, and his presentation at that meeting and on other occasions, was very impressive. Has the Minister discussed with him the balance between the prosecution of employers—who in this case, as I understand it, are domestic individuals and not gangs of traffickers—and the protection of individuals? Mr Ewins proposed extending the visa. Does the Minister know Mr Ewins’s view on whether taking the route proposed by the Government instead will mean that more victims will come forward than do at present?

[Lord Bates]

More will come forward than do at the moment. We are implementing the vast majority of what James Ewins recommended. He recommended, supported by Kevin Hyland, that there ought to be information meetings. It will now be a requirement that that will happen within 42 days. We are flexible on that, and if it needs to be sooner, we will look at that very carefully. The reality is that to qualify for this visa people will have to sit down with somebody who is independent—not from the Home Office or the Government—who will ask them if they understand what their rights are. These are unprecedented protections that have been put in place by the Government, alongside the Modern Slavery Act—we are leading the world in this area. I urge the noble Lord to think very carefully about the safety of people and the ability of the police to prosecute those who are carrying out this heinous abuse of the most vulnerable people in our country.

Asylum: Processing of Applications

Debate between Baroness Hamwee and Lord Bates

Wednesday 2nd March 2016 Lords Chamber

[Baroness Hamwee]

To ask Her Majesty’s Government what is their assessment of the amount of training required by employees on temporary contracts who process asylum applications, including gap-year students.

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, all members of staff who make decisions in asylum cases, whether on temporary contracts or otherwise, receive the same level of training. This includes a dedicated five-week foundation training programme that includes training on international and domestic law and safeguarding issues.

[Baroness Hamwee (LD)]

My Lords, the decisions that people dealing with asylum applications have to take are very sensitive and complex. Would the Minister agree that they require skills such as critical analysis, sensitivity and maturity? Is it appropriate for young people—by definition students, as referred to in the Observer article—to be taking such decisions? Is there likely to be an extra cost to the Government from incorrect decisions being taken by people who do not have those attributes?

[Lord Bates]

I can understand the concern, because these are very sensitive issues that people are being asked to deal with. But I can reassure the noble Baroness that out of the 290 decision-makers currently looking at cases, two are undergraduates in law. Under this scheme we have often looked in particular at people who have an interest in law—perhaps with the possibility of their coming in to become decision-makers in future—who might get some experience doing that. They have their induction course with all of that but, crucially, they also have mentoring. An experienced person must sign off on all decisions taken by that individual. That is a very important safeguard which I hope will reassure noble Lords.

Immigration Act 2014 (Commencement No. 6) Order 2016

Debate between Baroness Hamwee and Lord Bates

Wednesday 24th February 2016 Lords Chamber

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, I thank all those who have spoken in this debate. I begin by putting on record that my wife is a small-scale private sector landlord; I want to draw that to the attention of the House.

In considering these matters, I draw your Lordships’ attention to the fact that we had a substantial debate on this issue on 20 January on Amendment 148 to Clause 13, which was from, as I recall, the noble Baroness, Lady Hamwee. That went on for some time and raised many of the issues that have been raised today. If, because of the hour, I touch on a number of the issues lightly as we go through, I think it will be helpful for those who have genuine concerns about this to look again at the Official Report for the second day of Committee, and I am sure we will have the opportunity to revisit this on day one of Report on 9 March. For those reasons, I trust that the House will bear with me if I try to deal with some of the headline issues that perhaps have not been raised before.

First, I shall deal with the context of this measure. The context to legislation is very important. This is a commencement order, Commencement Order No. 6, for a piece of legislation that was passed by the coalition Government. The changes about which many concerns have been raised relate to the Immigration Bill currently going through your Lordships’ House but this relates firmly to the Act that was passed by the coalition Government.

It has to be said that the notion that landlords should have a duty to check that those to whom they rent properties are legally entitled to be here was first introduced by the then Labour Government in the Immigration and Asylum Act 1999, which introduced a duty on social landlords to undertake checks to ensure that they were letting properties only to people who had a legal right to be here. This measure simply extends that further across.

We are of course talking here about human beings and I think that we all recognise the humanity of this, but we are also talking about real problems that are faced in this country. We talk constantly about pressures in the housing market, and it could be that part of that pressure is because a number of properties in the private rented sector are currently rented out to people who have no legal right to be here, which means that they are here illegally and therefore breaking our laws. The question is: should we as a Government, and indeed as a Parliament, be endorsing and basically offering protection to people with no legal right to be here, who are breaking our laws and abusing our hospitality and should leave, to the potential disadvantage of people who are legally here and entitled to rent a property? That is the first point.

The second point, to which a number of issues relate, is on the timing, and I recognise that that is a key point. The original announcement about the pilot exercise was in September 2014—I am looking at the noble Lord, Lord Best—and the original pilot or phased introduction was undertaken some time ago. I readily accept that it was undertaken as a concession to arguments made, not least by the noble Lord, Lord Best, at various stages during the passage of the Immigration Bill through your Lordships’ House. The pilot was set up in the West Midlands, which is the second largest conurbation in the UK and quite an ethnically diverse area. It was therefore deemed to be an appropriate setting in which to test out how this would work. On top of that, an independent panel was set up, which of course the noble Lord, Lord Best, co-chairs. The panel includes representatives from the British Property Federation, the Residential Landlords Association, which has been referred to, the National Approved Letting Scheme, the UK Association of Letting Agents, the Association of Residential Letting Agents, the Royal Institution of Chartered Surveyors and the National Housing Federation. It also includes Shelter, Crisis, Universities UK and, crucially, on the element of discrimination, the Equality and Human Rights Commission.

Why, then, was the decision taken to do this—a point which the noble Lord, Lord Rosser, rightly sought clarification on? The answer is that it was in the Conservative Party manifesto. We stood at the election and our manifesto said that we would clamp down on people who are here illegally to stop them being able to work, rent properties, open bank accounts and obtain driving licences. We said that we would do all those things. Therefore, when we were elected by the people to do that, we announced that we would get on and do it. This is not happening across the country, to take the point made by the noble Baroness, Lady Lister. We introduced it in the West Midlands and that pilot has now been running for over a year, during which we have been gathering the evidence of how it has been operating and evaluating it. This order will enable it to be rolled out to the rest of England but of course further orders will be required for it to be rolled out into Scotland, Wales and Northern Ireland.

On the timing, I took on board the points that were made by my noble friends Lady Gardiner, Lord Hailsham and Lord Cathcart, among others, who were concerned about the time it takes to get documents. That is why a lot of this information can be checked online: there is an online checking service, which is not a premium service, as we said the previous time we discussed this, but a local-rate number that people can ring up. At the moment, that government service delivers 100% as regards its target time, turning work around in 48 hours. When people obtain references at present when a landlord lets out a property, surely they want to establish whom they are letting out the property to. They require some identification and may require proof of employment, with a reference from the employer or from previous landlords. All of that takes time. This part simply checks that the person who is there is legally entitled to be in the UK, and I would have thought that that would be a standard part of due diligence that should be happening in most cases. Therefore that element is there.

I recognise that we all have a deep concern about discrimination in the housing market. That was one of the reasons why the mystery shopping exercise happened there. That sounds like a trivial thing, but it is an established procedure used by all retailers around the country. We used an external firm to undertake the exercise and half the visits were undertaken by BME couples, who were seeking accommodation. What they identified was, sadly, that there is still discrimination— that we know—but that the discrimination levels experienced in the West Midlands control area or pilot area were similar to those in the other areas being used as a comparator. We have to make sure that landlords are more aware of the duties that they already have under the Equalities Act 2010 and the racial discrimination Act of 1965 to ensure that there is no discrimination.

The discrimination point is a key area. We are determined to go much further on this and I know that the independent panel is keen to do that as well. We are updating the code of practice to ensure that landlords know their duties and obligations to ensure that properties are fairly let to people, irrespective of their background. We have done that with great assistance from the Equality and Human Rights Commission, which of course is part of that panel.

A number of noble Lords referred to asylum seekers and refugees. The legislation exempts refuges, hostels and student accommodation, and, where there are vulnerable people who may have lost documents and what have you, there are special procedures to ensure that they are protected.

The target of this legislation is two groups of people. The first group is those who have no right to be here and should leave, and therefore should not be occupying premises that should be made available to people who have a legal right to be here. The second group, as the noble Lord, Lord Best, was right to point out, are the unscrupulous landlords who charge extortionate rents for appalling accommodation—I have seen reports on that type of accommodation that people are actually living in. These are the people we have in our sights. All a landlord needs to do is undertake a basic check of the documents and keep a copy of them. They then have a statutory defence that they have complied with the law.

A number of very specific points were raised. Perhaps, if the House will allow me, I can undertake to cover those in communications. We are having ongoing conversations about this: we have had several meetings at the Home Office and other meetings. We are going to come back to this. There are some areas where I think we can get some movement to make sure that there is greater reassurance. However, this particular element relates to legislation from 2014 for which there has been a pilot and a phased introduction. We are confident that the safeguards are in place, but it will continue to be kept under review. Therefore, I commend the commencement order to the House and urge the noble Baroness to reconsider pressing her fatal Motion.

[Baroness Hamwee]

My Lords, I am conscious of time. I hope that in my opening speech I managed to anticipate many of the points that have been made in the debate, and I shall not seek to repeat them. What I had not anticipated was hearing the real-life experiences of three landlords on the Benches opposite. I thought it was very telling when they shared with the House that they became aware of the requirements through their membership of the House. Their talk of real experiences reminded us of the concern of landlords about voids and losing rents, and the inevitable and unintended discrimination that may occur because of the situation.

It is right that I respond briefly to the noble Lord, Lord Best. No one could doubt the work that he has put in to this or that the panel that he co-chairs takes the issue very seriously. However, the Home Office evaluation, which took place some time ago, demonstrated many of the problems. The panel continues to work but we do not know publicly what its conclusions are and what its continuing work is. Perhaps I may summarise the noble Lord’s view as being that the burden on landlords was exaggerated. The Residential Landlords Association has made its views quite clear and it supports the Motion.

The pilot was introduced as a result of negotiations between the partners in the coalition Government in 2014. That negotiation was the basis of the inclusion of the provisions in the Bill at that time. Several noble Lords have quoted the assurances that were given about the evaluation. We were told that there would be a proper one based on a big enough trial. The then Minister said:

“Any decisions on a wider rollout will be taken in the light of the evaluation after the general election during the next Parliament”.—[Official Report, 3/4/14; col. 1090.]

However, the decision was taken immediately after the election before the pilot had even been completed.

I agree that immigration legislation should not be used to crack down on bad landlords. We should use other means for that. Nor do I think that we should lay problems in the housing market at the door of illegal immigrants. Hardly a cigarette paper can be put between the points that I made and those made by the noble Lord, Lord Rosser, who I think used even stronger language than I did, but I think that his argument is, “We shouldn’t behave badly. We should accept that this is policy but ask the Government to think about it all again”. However, if we cannot ask the Government to think about it on the basis of a pilot on which there has been a report, and if we cannot amend the order, how do we do our job? I think that our job is to show our view of the position so far, which is, as I said, that the requirements should not have been rolled out beyond an inadequate pilot. I wish to test the opinion of the House.

Immigration Bill

Debate between Baroness Hamwee and Lord Bates

Tuesday 9th February 2016 Grand Committee

[Baroness Hamwee]

My Lords, the Minister talked about the situation within Syria and potential relocation within Syria. Is he able to say a word about what seems to be quite a fast-changing situation, where the places to which the Syrian population might go are being bombed, starved or both almost out of existence? The situation changes fast. It would be useful to have on record whether the Government’s thinking is moving equally fast.

[Lord Bates]

It is a fast-changing situation and needs to be balanced with what we are talking about, which is wanting to ensure that we do the greatest good for the greatest number of people in need. We should also bear in mind when we talk about 3,000 children that there are currently 2.1 million children who are refugees from Syria, so 3,000 in addition is a relatively small number. You can help more in the region. I do not want to sound heartless: we talk about 3,000 people in this amendment, but our aid is providing 15 million food rations already, supporting 600,000 families, educating or supporting in education 227,000 children and providing 2 million medical interventions. I am not expecting people to say, “That’s fine, then”. The pressure needs to be maintained. It is a great humanitarian crisis and this place should be putting pressure on the Executive to take further action. I hope from what I have set out that I can go as far as to say that the Government are taking this seriously. We are not unmoved by it and Britain is doing a substantial amount of which we can be proud.

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[Lord Bates]

My Lords, Clause 55 provides a power to raise the charge, but details about the rate and scope of the immigration skills charge will be set out in regulations to be laid before the introduction of the charge. At that point there will be an opportunity for an informed debate on the details within the regulations. There are likely to be legal implications of introducing exemptions which will require careful consideration.

The Migration Advisory Committee published its review of tier 2 migration on 19 January, and the Government need time fully to consider the evidence about the likely impact of different rates on different types of organisation. As well as the Migration Advisory Committee’s findings and recommendations, we wish to consider other evidence from stakeholders and any legal implications before recommending the rate at which the immigration skills charge could be set and whether any exemptions should be applied.

The Government believe in consulting those affected by the proposed changes. The independent Migration Advisory Committee carried out detailed stakeholder consultation as part of its review of tier 2 migration. In addition, this Government have welcomed discussions with, and received evidence from, a large number of businesses and representative organisations. The process will continue and will, of course, take into account the representations that have been made today by the noble Lord, Lord Wallace, and those received from academic institutions both by me directly and by other colleagues.

As for consulting on the changes, since the announcement in May, we have been consulting employers and business leaders across the private and public sectors to get their views on the immigration skills charge. This will continue. In addition, the Migration Advisory Committee conducted a review of tier 2 with the remit to advise government on restricting tier 2 to genuine skills shortages and highly specialised experts. As part of this review, the MAC considered evidence from employers on the immigration skills charge.

As to the impact on healthcare, which the noble Lords, Lord Rosser and Lord Wallace, asked about, no decision has yet been made. The details of the charge will be set out in regulations, which will be subject to the affirmative procedure. Therefore, there will be an opportunity for a full debate at that point.

The Government have not said that the immigration skills charge will fund the 3 million apprenticeships; rather, they have said that the immigration skills charge will contribute towards skills funding. The level of the charge has not yet been set. The Government are also proposing an apprenticeship levy, not linked to migration, which will go towards apprenticeship funding. The Migration Advisory Committee recommended a figure of £1,000 per year, which is large enough to raise a reasonable amount of revenue and have an impact on employer behaviour.

That is at the core of what this is about. As the Prime Minister said at the outset, it has been far too easy for some businesses to bring in workers from overseas rather than take the long-term decision to train the resident workforce in the UK. We need to do more to change that, and that is the rationale that is driving this. We are proposing that a charge be enabled through this legislation, and we are continuing to consult because we are not unmoved by the noble Lord’s argument that the level at which this is set and those to whom it is applied will have significant implications. Therefore, we need to get that right.

The noble Lord slightly chastised us by saying that we used to have a policy of attracting the brightest and the best. Of course, there is only one thing better than that, and that is to actually grow the brightest and the best here. That is what this policy is designed to do. More details will follow and the House will have an opportunity to scrutinise those when they are presented.

[Baroness Hamwee]

My Lords, before my noble friend responds on our amendments, I wonder whether the Minister can advise the Committee how noble Lords should deal with this when further government thinking becomes clear. As he well knows, we can scrutinise to our heart’s content but we cannot actually do anything about what is in regulations.

I thought that the Minister said at the beginning of his response that there had not been a decision and that this was permissive of regulations, but at the end he confirmed that this is what is in the Government’s mind, which is obviously common sense. However, by bringing forward such a significant new policy proposal as this, having given the Commons five minutes to debate it, as my noble friend said, I do not know how we can really deal with this just through regulations.

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[Lord Bates]

Her Majesty’s Government’s position is always credible and defensible. Most people would recognise that this is a sensitive area, but the UK has taken a very strong stand in the international community on tackling money laundering. It does that consistently through raising matters at the G20, which is a prime vehicle for operating on this, and through the OECD, which has its regulations as well. We will continue to do that. I would have thought that everybody would welcome the fact that the Prime Minister is taking this leadership and wanting to see how further things could be done. It is absolutely the role of this House to apply pressure to the Executive to make sure that they are living up to the arguments and principles that they seek that others observe.

[Baroness Hamwee]

Can I add a tiny bit of extra pressure on the Executive between now and Report and ask whether the Government have information about the effect on housing numbers and housing prices as a result of this policy? That might be quite difficult as a lot of it will be anecdotal, but it is a jolly big anecdote along the south bank of the Thames, with units that are sold off plan and will probably remain empty. There is a great deal of concern about the impact of the role played by those taking advantage of this route on the housing shortage and on housing prices.

[Lord Bates]

Housing is outside the scope. I know that the effect on the housing market will be an interesting point of research, but we are focusing on the visa that is primarily targeted into government gilts, or loan stock or equity in UK-registered corporations. Those are the bounds of it. I mentioned that we have taken action before. This will probably excite even more attention, but due to EU law on free movement of capital, the Government believe that there would be legal difficulties in treating residents and non-residents differently by, for example, restricting purchases or charging a higher rate of tax.

I have said what I have said. I am quite genuine. A point has been made. I should just temper the Committee’s expectations because I spent the first two pages of my speech defending the scheme, saying that it was important to send out the message and that these investors were coming. I do not accept the generic term of “dodgy” with “investor”. A lot of investment into this country has been of immense value in providing jobs and wealth to the people who are here. However, I will go away and reflect on the points that have been raised about the specific working of the scheme and come back on Report where those arguments can be tested.

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[Baroness Hamwee]

My Lords, I hope this will be quick. This is a probing amendment. Clause 56 is about fees, not really about immigration, although some of it might be. The issue I would like to probe is about passports, not immigration. Clause 56 (4) provides that there may be fees which exceed the cost of “exercising the function” in question. I would be grateful if the Minister would explain to the Committee what is proposed and what lies behind this. Is it about a premium service, rather along the lines of the premium visa service? From time to time, over the years, I have heard complaints about that among the business community—probably not voiced directly to the Government. They are having to pay premium fees for what should be the basic standard service. Is there anything that the Minister can say about customer satisfaction on this? It is worth spending a minute or two getting on record the Government’s explanation of payment over and above the cost of providing proof of citizenship. I beg to move.

[Lord Bates]

My Lords, the passport fee provisions in the Bill require that all Home Office passport-related costs are fully reflected in the fee structure. That means we can recover the costs associated with processing UK passengers at the border through the passport fee. This is reflected in our spending review settlement. They also allow for a surplus on optional, premium and fast-track services, which we intend to use to help protect the quality of, and fee for, the standard passport service and, over time, reduce the standard fee. We do not intend to generate surpluses to fund other unrelated Home Office activity. Premium or fast-track service delivery is currently, and will continue to be, based on insight into and awareness of customer expectations and needs. In future, we intend to set fees for premium services at a level which ensures that they are economically viable to the customer and ensure that Her Majesty’s Passport Office can recover the cost of the services delivered, while protecting and maintaining the standard passport service.

The services and fees will be set out in regulations. As set out in the existing Clause 56(1), fees are set to meet the cost of such functions associated with the issuing of a passport or other travel documents. They will require approval from Her Majesty’s Treasury and Parliament. Therefore, the regulations do not provide for fees to be set at a level deliberately aimed to achieve an excess or surplus on the overall service. The regulations would provide for the fee for specific premium elements of the service to be charged above cost, but any income derived from that would be required to be used to maintain or reduce the cost of other services provided within the overall passport function.

Although I recognise that this is a probing amendment, the proposal would not work, first, because the use of fast-track services is a matter of individual customer choice and therefore subject to fluctuating demand. Unplanned surpluses, or even deficits, may therefore materialise in-year. Secondly, and more importantly, the level of fees for individual services should be determined by the overall cost of delivering the whole passport function, not the other way around. Our ambition is for the standard passport fee to remain at the current level initially and to fall over time as the cost of passport functions is reduced. This will be achieved through transforming delivery through digital and online services, complemented by the customer’s ability to choose the access services with an appropriate level of fees to reflect the higher level and speed of service provided. I hope that, with that explanation, the noble Baroness will feel able to withdraw the amendment.

[Baroness Hamwee]

My Lords, having listened to that explanation, it seems that the amendment pretty accurately reflects what the Minister has been saying, but I will not spend time on that now. Since we are talking about passports, does the Minister have in his brief the target time for the issue of a passport on application at the moment—which I presume is the standard service—against which a premium service will be designed?

[Lord Bates]

It is five days for domestic and 14 days for overseas. There are, of course, some elements of variance, but those are the standard times.

[Baroness Hamwee]

That is helpful, because to issue a passport in less than five days strikes me as going some, though perhaps it may not be so difficult if it is a renewal. I shall be interested to see what the premium service purports to offer. I might be about to hear.

[Lord Bates]

The premium service is four hours: well worth the money.

[Baroness Hamwee]

I might hand it over to the noble Lord, Lord Green, to interrogate. What checks are undertaken for that? I beg leave to withdraw.

Immigration Bill

Debate between Baroness Hamwee and Lord Bates

Wednesday 3rd February 2016 Lords Chamber

[Lord Bates]

Yes, that is something that I am happy to undertake to do. To clarify the situation, the six local authorities I referred to were just for the Kent dispersal scheme. It is invidious to single out particular local authorities. I was making the more general point that it would be wonderful if more local authorities came forward. We certainly want to ensure that the generous offers made, to which the noble Lord referred, are fully explored, so that help can be provided where it is offered.

[Baroness Hamwee]

My Lords, it might be invidious, but I am going to do it, although in a related context. On the call for local authorities to assist with providing accommodation for refugee families, I am ashamed that the leader of my local authority of Richmond upon Thames explained that it was not possible to assist because it is not a housing authority. I think that that is using technical language which could be applied very widely across the country, but has not deterred others.

The statement from the Local Government Association on the current position, issued especially in response to the calls for admitting 3,000 unaccompanied asylum-seeking children, starts by calling for the programme to focus on family reunification, which takes us back to debates we just had. The statement refers to the current financial arrangements for taking on full Children Act responsibilities and funding the leaving care support. It says that these are currently due to expire at the end of March. The statement was dated 27 January and I would guess that the Minister has no further news about that—he shakes his head. Clearly that is worrying the LGA and it must worry us all. Of course, I agree that reaching a consensus and partnership—the word I was struggling for before—is the most important way of addressing this. As I have said before in this Chamber, the costs would be considerable. There is the shortfall in the number of foster carers. Whatever the number of altruistic people who offer to take children, there is no avoiding the cost of support for them in undertaking an extremely difficult job in looking after these children. The LGA also says that a regional approach to resettling refugees rather than a case-by-case model controlled centrally would be more effective in utilising the funding for local authorities to support resettlement.

The Minister answered Amendment 236ZF but I do not think he said whether those factors will be included in guidance. Given the hour, I will not ask him to continue—but he made a sort of semaphore indication that he will write on that point. I am grateful for that. I beg leave to withdraw the amendment.

Immigration Bill

Debate between Baroness Hamwee and Lord Bates

Wednesday 3rd February 2016 Lords Chamber

[Lord Bates]

I am happy to set that out in a little more detail. I think it would be helpful to say how we envisage that working. The plan is for the family engagement officer—who is a key figure in this, working with the family to manage their return—to have cognisance of their circumstances not only while here but when they return, so that will be taken into account and will be something that we look at. I will write more on that; I am happy to do so.

[Baroness Hamwee]

My Lords, while we are on this subject, the noble Lord, in response to my Amendment 233, talked about the current process. The amendment was tabled after discussion with the Red Cross in particular and other organisations that commented on the need for the items set out in the amendment, namely,

“a caseworker … a named point of contact … and … legal advice”.

The part of the amendment dealing with a review refers to,

“the level of financial support provided to failed asylum seekers when they leave the United Kingdom, and … the level of contact with organisations in the country of return necessary for the welfare of the failed asylum seekers”,

which was very much the point my noble friend was making. The Minister has just described a caseworker and named person. I am not clear whether this is intended to be a change from the current process or whether his notes are defending the current process. If it is the latter, the comments I received which led to this amendment indicate that the current process, which the Minister described, is not working.

While I am on my feet, I am afraid I must take the Minister back to the Azure card. He said that, generally, support would be in the form of accommodation and cash. What are the exceptions to that?

[Lord Bates]

First, I am a huge admirer of the work of the Red Cross and pay tribute to all that it does in this area. The noble Baroness referred to my charitable endeavours over the recess. Last year, I raised £90,000 for projects for the International Red Cross in China. My response to the point about the Red Cross study is that we are engaging with it. Home Office officials are in contact with the Red Cross and we are working through its recommendations, which I have read. There is some question—which we need to understand better—about the cohort. I think that the Red Cross looked at some 60 case studies. The majority—all but five or six, I think—were failed asylum seekers, but there was not really sufficient explanation of why they had failed. Suffice to say that we take this very seriously. We want to engage with organisations such as the Red Cross so that we move forward sensitively.

I have said that I will write on the point about the Azure card and perhaps I could include the exceptions. With that, I hope that noble Lords will accept my explanation and withdraw their opposition to the clause standing part.

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[Baroness Hamwee]

My Lords, our Amendment 229 also addresses the issue of people who have been granted refugee status, humanitarian protection and various forms of leave to remain accessing mainstream benefits. I am sure that being able to work, and as a secondary to that being able to access mainstream benefits and accommodation, is what people in this situation want. They do not want to be supported. But delays in the Home Office in issuing biometric residence permits and delays at the DWP in issuing national insurance numbers so that people can get identity documents and thus establish a claim to benefits mean that the system is not working as it should.

Our amendment would not make as many changes as its length might suggest. The relevant addition to the definition of when,

“a claim for asylum is determined”,

are the lines,

“and the claimant or dependants of the claimant do not appear to the Secretary of State to be destitute”.

In other words, adding that in as another condition to be met, as it were. I can understand that it must be much easier to have an automatic time trigger for these things, but we have heard throughout the debate on this Bill how matters are considered on a case-by-case basis, and it seems that this is another occasion when that consideration should be applied.

[Lord Bates]

My Lords, I thank the noble Baroness, Lady Lister, for moving her amendment, and the noble Baroness, Lady Hamwee. In the interests of time, perhaps I may first draw the attention of the Committee to my letter of 21 January and in particular to the accompanying document, Reforming Support for Migrants Without Immigration Status: The New System Contained in Schedules 8 and 9 to the Immigration Bill, and specifically to pages 10 to 12 which deal with the handover situation of people on support from the Home Office and moving them on to a local authority, and how that system can be improved.

The noble Lord, Lord Alton, who I respect enormously for his humanitarian instincts, as I do the noble Lord, Lord Judd, referred to the British Red Cross report. It was published on 13 January, I think, which is fairly recent in terms of government decision-making. We are engaging with the charity and we will have more to say on the report in due course.

At the heart of what the noble Baroness wants is whether we will agree to a meeting to look specifically at this issue. The next group of amendments is a significant one about children leaving care. I was going to suggest that we should have a meeting on that issue, which the noble Earl, Lord Listowel, will probably find very helpful. I am happy to incorporate this specific point into that wider meeting, given that we already have five meetings coming up before Report. If that is helpful to her, I shall restrict my remarks to drawing attention to the document I have just mentioned and agreeing to combine this issue with those to be addressed in the meeting as a result of the next group of amendments.

Immigration Bill

Debate between Baroness Hamwee and Lord Bates

Monday 1st February 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am emulating the noble Lord, Lord Kennedy, in retreating to the Back Benches to intervene at this late stage. I was glad to hear the Minister say that the Government would consider further the issues raised by the noble Lord, Lord Rosser, in Amendment 163. The Minister did not quite address—again, I emulate the noble Lord, Lord Kennedy—the point made by the noble Lord about the desirability or otherwise of dealing with the matter either through the CPS taking a view as to whether to prosecute or through sentencing. I hope that the Government will consider whether it might be better not to have a strict liability offence rather than leaving it to the CPS to consider whether it is in the public interest to prosecute in a particular case.

[Lord Bates]

My Lords, the strict liability nature of this offence is consistent with some similar driving offences. It is an offence, for example, to drive whilst disqualified or drive otherwise than in accordance with a licence, regardless of whether or not you realised that you were committing an offence. Therefore, we believe that that is consistent, but obviously, I will look carefully at what the noble Baroness has said and if need be I will respond in writing to her.

[Baroness Hamwee]

My Lords, you are more likely to know whether you are disqualified than whether there is a problem over leave to remain.

Psychoactive Substances Bill [HL]

Debate between Baroness Hamwee and Lord Bates

Tuesday 26th January 2016 Lords Chamber

[Lord Bates]

In a sense, my argument is about what alternative we have to this. The moment for putting something through now, in primary legislation, has passed. We have to allow this to take its course. Our concession was to say that we would undertake a review in consultation with the Department of Health and the Medicines and Healthcare Products Regulatory Agency. Following the enactment of the Bill, and before the Summer Recess, we will consider whether there is evidence to support these claims. There is a question mark there and we believe that that research and consultation need to happen before we take any further action at this stage.

I see that the cavalry has arrived; I am, as ever, grateful my noble friend Lady Chisholm. To add to the list of exemptions requires the Home Secretary only to make regulations subject to affirmative procedure. To remove from the original list of exemptions would require further primary legislation. I think I have already said this, so I rest my case at that point and beg to move Amendments 2 to 4 in my name.

[Baroness Hamwee]

My Lords, the point is well made and this is an almost insoluble dilemma. I entirely see the Government’s concern to have the overall legislation in place quickly. However, first, can the Minister give the House any news as to when this may come into effect? Secondly, with regard to the particular situation which has been described, this is by no means a solution, but has the Minister been advised as to the likely view of the judiciary—if that is not an improper question for a Minister to answer—in a situation where, by the time a charge comes to be heard by a court, an exemption has been made through regulations?

Child Refugees

Debate between Baroness Hamwee and Lord Bates

Monday 25th January 2016 Lords Chamber

[Lord Bates]

My Lords, apologies for confusing the procedure on Statements with Urgent Questions. I will deal with points in the reverse order to which they were raised by the noble Lord, Lord Rosser. First, the criteria for family reunion are set out in the Dublin regulations. They are currently under a period of review, but we will certainly honour the family reunion commitments under the existing Dublin arrangements. Regarding trafficking and the dangers, we are absolutely confident, in terms of the current Dublin regime, that all children—all adults, for that matter—arriving into the European Union should be identified with biometric passes at that point and recorded as such with as much data as are available. Once the data are there, at least that person is correctly identified. We have been providing support through the European Asylum Support Office in those regions to ensure that that recording of children and adults is going ahead.

I should say that the figure of 26,000 is an estimate of the number actually coming in to the European Union; the numbers are not held in one place. The Prime Minister is deeply concerned about that. This time last year, we had a couple of hundred coming in under the Syrian vulnerable persons resettlement programme. The Prime Minister announced that that was to increase to 20,000, and we brought in 1,000 before Christmas, 50% of whom were children. So we are not unmoved by that plea, but UNICEF and the UNHCR have seriously warned about the interests of the child being best served when they remain with wider family networks in the region, as that offers the best prospect for their safety and well-being once, as we hope, the conflict there is resolved.

[Baroness Hamwee (LD)]

My Lords, like others, I suspect, I would have welcomed a rather wider and more positive announcement about immediate steps to be taken for children not just from Syria but from Afghanistan, Iraq and Eritrea. When, as I hope we will, we get a positive announcement about the Government’s plans, will it include detailed proposals for everything that needs to be done to support the children whom we wish to welcome: funding and wider support for local authorities, training and support for social workers and, in particular, a focus on the availability of foster placements and support for foster parents, who will be dealing with very delicate situations?

[Lord Bates]

That is certainly the arrangement that we have under the Syrian vulnerable persons relocation scheme: they get that assistance, which comes out of the overseas development assistance budget in the first instance. We have a real problem with unaccompanied asylum-seeking children who are in the UK already, a high proportion of whom are in Kent. Funding is available to the authorities, and we will make sure that they have the resources necessary to provide the level of care that we expect under our international obligations, and our national obligations under the Children Act.

Immigration Bill

Debate between Baroness Hamwee and Lord Bates

Wednesday 20th January 2016 Lords Chamber

[Lord Bates]

In that respect I might suggest that the partial solution which we came across for our last debate, which was on overseas domestic workers, was to look at organising a meeting in between Committee and Report. However, it would probably be more useful for the House to have the noble Lord, Lord Best, at such a meeting if he were willing to meet with colleagues on that basis. We would certainly be happy to facilitate one to explain more about the process, but we have tried to be as transparent as possible about this. It has been a long trial and there has been a thorough evaluation. It will also continue to be under review because this is not the completion of the process; we are simply talking about moving to the next stage of rollout, which is to England. There will be further opportunities for evaluation thereafter. I hope that, with those suggestions, I might have prevailed upon the noble Baroness to withdraw her amendment at this stage.

[Baroness Hamwee]

My Lords, I will want to go back and read what the Minister had to say about protected characteristics, so I will not spend time on that. I am not surprised that he does not agree with my Amendment 159—that is self-evident.

I would not for a moment accuse the Government of not being transparent on this. It is no secret at all that his party, in the last Government, did not want to have a pilot but to roll the scheme out right across the country immediately. We have information which has been the basis of the argument against rolling it out further. The points made by the noble Lord, Lord Deben, are unanswerable.

--- Later in debate ---

[Baroness Hamwee]

I will move Amendment 158 very briefly. This amendment came about as a result of the report of the Delegated Powers and Regulatory Reform Committee. I will not explain the detail of the clause because I am aware that the Minister intends to make a full response to the DPRR report—as I understand it, before Report. I am moving this amendment in order to ask that we get that response in reasonable time just in case we do not agree with what the Government have to say. If that is the case, we may want to use Report stage as the last opportunity to put down an amendment similar to this one. I beg to move.

[Lord Bates]

My Lords, Clause 16 gives the Secretary of State the power to make such regulations as are appropriate to extend the residential tenancies provisions, as set out in the Immigration Act 2014, to Wales, Scotland and Northern Ireland. It is entirely right that there is provision to make such an extension throughout the United Kingdom as the residential tenancy provisions in this Bill are for the purposes of immigration control, which is a matter reserved to the UK Government.

Amendment 158 seeks to remove the provision for regulations under Clause 16 to confer functions on any person. In order to make appropriate provision that applies in Wales, Scotland and Northern Ireland, it may be necessary to confer functions on a person—for example, the Secretary of State for the Home Department or an immigration officer—under those regulations. The provision in the Bill is helpful as it makes it clear what can be done under these regulations. Removing the provision would serve no useful purpose and would lead to an unhelpful lack of clarity.

I note that the Delegated Powers and Regulatory Reform Committee’s 17th report of Session 2015-16 has drawn attention to some aspects of the Bill but not to this specific provision. As the noble Baroness has asked us to do, we will certainly provide a full response to the committee’s report and also, of course, make sure that Members of your Lordships’ House have a copy of the response before Report. I therefore ask the noble Baroness to consider withdrawing the amendment but to note the further consideration being given by the Government to the points raised by the Delegated Powers and Regulatory Reform Committee.

[Baroness Hamwee]

My Lords, I beg leave to withdraw the amendment.

Immigration Bill

Debate between Baroness Hamwee and Lord Bates

Wednesday 20th January 2016 Lords Chamber

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, I thank the noble Baroness for speaking to her amendments. Before coming to the questions that have been asked, I will briefly speak to Amendments 92 and 93 in my name. Schedule 1 to the Bill concerns the powers to prevent illegal working in premises licensed to sell alcohol or provide late-night refreshment in England and Wales. These are two technical amendments to Schedule 1 which aim to ensure that those who have applied for a premises licence or a personal licence for the sale of alcohol or the provision of late-night refreshment, and who have not had a decision on that licence application before these provisions have commenced, will have their application determined on the basis of the licensing law in force at the time they made their licensing application.

Amendments 78 to 91 are proposed by the noble Baroness, Lady Hamwee. Schedule 1 integrates protection against illegal working into the existing licensing regime, including by adding the Home Secretary to the list of responsible authorities for the purpose of the Licensing Act, by making the prevention of illegal working an objective of the licensing regime and by requiring licence applicants to have the requisite right to work. The amendments proposed by the noble Baroness would adjust the threshold at which the Secretary of State may object to a licensing application. They would permit a court to consider whether the appellant has been granted leave to enter or remain in the UK after the date of the decision being appealed against, in effect duplicating the proper role of the tribunal—the Immigration and Asylum Chamber. The amendments would also make changes to the proposed “entitlement to work” definition from the Licensing Act 2003 to prevent immigration status and, in particular, the lack of it being relevant to alcohol or late-night refreshment licensing decisions.

We do not believe that these amendments would achieve the objective of preventing illegal working in this high-risk sector. They would not provide the necessary clarity for licensing authorities or the Home Office in respect of the proposed power to withhold personal and premises licences based on the absence of the applicant’s right to work in this sector or concerns about the risk of illegal working in the premises concerned. They would also result in inconsistency with the standards employed in the wider licensing framework. Changes made by the Police Reform and Social Responsibility Act 2011 have given licensing authorities greater power to tackle alcohol-related crime and disorder, and it is appropriate that the same level of evidence and discretion is also afforded in respect of the prevention of illegal working.

The Home Office decision to object to the issue of a premises licence to prevent illegal working will not be taken lightly. Schedule 1 makes it clear that the Secretary of State may object only where she is satisfied that the exceptional circumstances of the case are such that issuing a licence would be prejudicial to preventing illegal working. Schedule 1 also provides the necessary clarity on the circumstances in which a person’s immigration status should render them ineligible to hold a licence to sell alcohol. The proposed amendments would permit an individual to apply for a licence even though they are not permitted to work in the UK, or where their immigration status prevents their doing work related to licensable activity. This cannot be right. An applicant who has been refused a licence but is subsequently granted leave would simply need to make a fresh application and include the required information that provides evidence of immigration status.

Let me turn to some of the particular points that were made. The noble Earl, Lord Sandwich, asked what evidence exists that this is a particular problem. Of the civil penalties served for illegal working in the year to June 2015, 82% were served on the retail industry or hotel, restaurant and leisure industry sectors. A large proportion of these sectors hold premises or personal alcohol licences. Enforcement activity is decided as a consequence of intelligence and does not affect only companies that employ a small number of employees.

The noble Baroness, Lady Hamwee, asked what consultation had taken place. The changes proposed to the Licensing Act in the Bill have been subject to consultation with interested partners, including licensing authorities, the police, and representatives of the licensed trade. The consultation was undertaken last summer via a number of workshops, which were attended by the Local Government Association, the Institute of Licensing, licensing officers from seven licensing authorities, representatives of the national policing lead on alcohol, and the police and crime commissioner lead on alcohol. The second workshop included industry partners such as the British Beer & Pub Association, the Association of Convenience Stores, the Wine and Spirit Trade Association and the Association of Licensed Multiple Retailers. These partners provided a significant contribution to shaping our proposals.

Let me turn to perhaps the most interesting point, raised by the noble and learned Baroness, Lady Butler-Sloss, which is the subject of most of the amendments in this group: the use of the term “appropriate”. This was introduced across the licensing regime in the Police Reform and Social Responsibility Act 2011. We want the test in standards to be consistent across the two pieces of legislation. If we ended up with a differently worded test in the Bill before us, that might require consequential changes to the 2011 Act to bring them into line. I have listened carefully to the arguments that have been made and the point made by the noble Lord, Lord Kennedy, on behalf of the Opposition, and I am very happy to look at this issue ahead of Report to see whether any change is needed. However, that is the rationale for the choice of language.

With that assurance, I hope that the noble Baroness will feel able to withdraw her amendments, and in doing so I commend my amendments to the Committee.

[Baroness Hamwee]

I am grateful to noble Lords who have spoken in support of my amendments. I have to say that my trigger finger on my iPad is not fast enough to have got into the Police Reform and Social Responsibility Act. The Minister will understand that I will want to check whether it is on all fours in this regard. If it absolutely is, I might have to say, “You have got me there”.

The amendments have been described as technical. I do not think that they are; they are about people’s livelihoods, and that is why I am quite persistent with them. That was an impressive list of consultees who, we are told, helped to shape the proposal. I could not deduct whether they were shaping a proposal that they did not like and just making it a little better or whether they were going along with the proposal as it was put to them.

I will finish by saying that what I really do not want to see is a confusing of licensing and immigration—a point that crops up at a number of points in the Bill. They are separate issues and that is why I was so concerned. I am grateful to your Lordships for allowing me to indulge myself with this tranche of amendments, and I beg leave to withdraw Amendment 78.

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[Baroness Hamwee]

My Lords, with the leave of House, perhaps I may respond to some points made by the Minister on these amendments. I will be very quick. As to the requirement as regards private hire licensing and alcohol licensing for an applicant who did not have leave at the point when the initial decision was made but gets leave in the interim period before an appeal, it is very hard on that applicant that the licensing of the appeal court—although “appeal” may not be quite the right term for what I am trying to say—cannot entertain the consideration of that situation. The applicant will incur costs and a delay. Businesses will be affected and third parties—employees—may be affected. Of everything I have heard, that concerns me particularly. I may be misunderstanding some of the procedures but, if I am misunderstanding them and the language is not completely clear, that could cause a problem for those who will have to operate them. I beg to move.

[Lord Bates]

To clarify for the noble Baroness, I understand her point. My understanding is that what we are saying is that the applicant should not be making an application for a licence that extends beyond the period in which they have leave to remain in the country. Therefore, the point we are seeking to hold is that they should have the licence for the period which relates to the legal position that they have been given to be in the UK. We are trying to tie up those two points.

[Baroness Hamwee]

My Lords, I think I follow that—but what if the application for leave has initially been turned down on the basis of a mistake? That would leave the applicant for a licence in a difficult position. I do not think that it will benefit us to take this discussion further now, but I have no doubt that the Minister, in his usual very helpful way, will be able to undertake discussions between Committee and Report. I will certainly look at it again and perhaps we could pursue it.

[Lord Bates]

I am happy to give that undertaking to the noble Baroness.

[Baroness Hamwee]

I beg leave to withdraw the amendment.

Immigration Bill

Debate between Baroness Hamwee and Lord Bates

Monday 18th January 2016 Lords Chamber

[Lord Bates]

I will try to be a bit more helpful if I can. I totally share the view of the noble and learned Baroness that the Gangmasters Licensing Authority is doing an outstanding job in its present field. That is one reason why we are increasing its powers. It is a recognition that it is an effective organisation and we want to make it even more effective. It is unthinkable that someone could come into this role—co-ordinating and sharpening the overall strategy of labour enforcement—who would not embrace the strategy already in place of such an effective organisation as the Gangmasters Licensing Authority.

Clause 7 prevents the director exercising functions or making recommendations in relation to individual cases. Decisions about sanctions to be taken against businesses are a matter for the enforcement bodies, which will remain operationally independent. However, the director may consider individual cases when examining the general issue during the exercise of his or her functions. I know that that relates to a previous comment, not to the comment just made. None the less, I hope that those additional reassurances—that the labour market enforcement director is building on strategies, ensuring that they are coherent and joined-up, and in doing so is absorbing best practice from a wider range of organisations involved in enforcement—will be welcomed. If so, the noble Baroness might feel these amendments are not necessary at this stage.

[Baroness Hamwee]

The noble and learned Baroness expresses my view precisely. I am not particularly concerned with the specific amendments; they were probing amendments. I might enlist her help in drafting something for the next stage. I am not sure—I may have missed it, in which case apologies—whether my question about whether the GLA board was a person for the purposes of Clause 2(6) was addressed, but perhaps that can come later. The board will exercise functions—essentially functions to the director’s priorities. In other words, the GLA board’s role is going to be changed. That is a serious issue for the individuals who will have taken one set of skills to the board and will not be expecting to get involved in something which is essentially more operational.

We are all struggling a bit to articulate the arrangements that we are concerned about and what we think should be in place. That is perhaps because it is quite easy to draw some sort of diagram—an organigram—on a page showing the relationships, but that is not necessarily what real life is like. I am afraid that the intelligence hub does not reassure me at all, because it sounds like two lots of overlapping expenditure, if not complete duplication. That may be something that I return to. The nub of all this is the relationship. I hope that I can find a more felicitous way of addressing this at the next stage, but it has to remain on the agenda. For now I beg leave to withdraw the amendment.

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[Lord Bates]

Touché. I get that point. The point I am trying to make is a very serious one: that the Government will of course listen to and pay very careful regard to the recommendations of a committee of your Lordships’ House. I will have more to say on that by the time we get to the relevant section on Report.

Will our reforms make it easier for rogue gangmasters to operate without fear of detection? Absolutely not. Our reforms will ensure that the GLAA has tough new enforcement powers to tackle criminals in any labour sector, not just those that are licensed. Importantly, the number of licences granted for 2014-15 was 82, with 27 refusals and 23 revocations, out of a total of 954 licences in existence. That shows that it is something more than a box-ticking exercise: that genuine work is being done by the GLA in assessing the quality of those licences, and we want that to continue.

I have touched on reviews—perhaps not to the entire satisfaction of the noble Lord, Lord Alton—but I will come back to that issue and set out the position in a letter. The licensing rules contain detailed provisions on a variety of matters, such as what information should be provided by a licence holder to a worker before they start—for example, shellfish-gathering rules on tide, accommodation, record keeping and sector- specific provisions. This follows a model set out in Section 7 of the Private Security Industry Act 2001 which allows the Security Industry Authority to set its licensing criteria by publishing a document without any parliamentary procedure but with the approval of the Secretary of State.

I come to the point made on PACE powers—that there is no mention of the new labour market enforcement order offence in the proposed new Section 114B of PACE. Amendment 55, which introduces the new clause “Investigative functions”, provides that the enforcing authorities can use the investigative powers they already have for the relevant trigger offence to be investigated in any breaches in LME orders. This means that where the GLAA has PACE powers for the trigger offence, it can use those powers to investigate a breach. I am immediately conscious, as I read that out, that that does not answer the particular point. Staff designated to exercise police-style powers will be subject to the relevant PACE codes and to Independent Police Complaints Commission supervision. As I say, I am conscious that that does not answer the specific question my noble friend asked, and I will undertake to write to him and to other noble Lords whom I have not had the opportunity to respond to in the time available. I hope, with those reassurances, that noble Lords and Baronesses will feel able to withdraw their amendment.

[Baroness Hamwee]

One of the amendments to which I spoke, which was quite unrelated to any others, addressed the supply chain point for the GLAA. I wonder whether the Minister has an answer to that. If not, could that not get lost in the rather more philosophical issues we have been debating?

[Lord Bates]

It is one that we listed in the supply chain regulations which recently came before your Lordships’ House. A number of undertakings were given at that time to examine options for a central database and how that will be done. It should also be said that there was general agreement that we had set the threshold for the reporting of those standards at the lower end of the expected threshold, so that more companies would have to comply. That has a concomitant effect upon the size of the database which would need to be maintained in order to carry those statements of transparency in supply chains by the companies affected. I am very happy to undertake to update noble Lords on progress with that in the course of my responses.

Immigration Bill

Debate between Baroness Hamwee and Lord Bates

Monday 18th January 2016 Lords Chamber

[Lord Bates]

This is an Immigration Bill. I take the point that of course we need to continue to look at all these points. I am simply saying that it has somehow been portrayed that we are being inconsistent in singling out people who have fallen on hard times and are having a tough time in life, and mercilessly pursuing them. In fact, all we are doing is ensuring equality of treatment. Moreover, and more seriously, if we were introducing this measure in 2014, I would feel a lot more uneasy about it. Since the Immigration Bill 2014—taken through by my noble friend Lord Taylor of Holbeach—we have introduced the Modern Slavery Act, Section 45 of which is a statutory defence for people who are the victims of crime. This is widely welcomed and appreciated. That defence was not there in the Immigration Bill 2014 but is there now, and we are plugging a gap.

The noble Lord, Lord Hylton, asked why there are different sentences across the UK. The maximum prison sentence for a Clause 8 offence is the same across the UK. This will remain the case until Section 281(5) of the Criminal Justice Act 2003 is commenced. This reflects devolution and is set out at subsection (3) of the new offence. If that does not make it crystal clear to the noble Lord, I can assure him that he is not alone. If, when we read that in the Official Report, further explanation is needed, I will be happy to provide it. The gist is that the sentence is consistent across the United Kingdom.

The noble Baronesses, Lady Ludford and Lady Hamwee, both asked how many prosecutions had taken place of Bulgarian, Romanian and Croatian nationals. Parliamentary Questions 12752 and 12753 on this were answered in 2015. Between 2007 and 2013 there were three prosecutions where this was the principal offence—that is, the offence where the heaviest penalty may be imposed. During the financial years 2006-07 to 2013-14, a total of 491 penalty notices were issued. This offence, and penalty, only related to those migrants who were subject to accession regulations, while the new offence will relate to all migrants who work illegally in the UK.

It is not the case that an employer of an asylum seeker with permission to work has no protection unless the asylum seeker has leave to be in the UK. Section 24 of the Immigration, Asylum and Nationality Act 2006 ensures that those on temporary admission, including asylum seekers, are deemed to have leave for the purposes of the Section 21 offence. Therefore, if, as an exception, they have permission to work, they will not be committing an offence simply because they do not have leave.

A number of noble Lords asked about voluntary work. For work to fall within the ambit of the offence it must be under or for the purposes of a contract. Genuine voluntary work should not be subject to a contract. Volunteering must not be used as a pretence for paid work. A question was asked about whether visitors can undertake activities on a voluntary basis. The answer is yes, they may volunteer, providing this is incidental to the purpose of their visit to the UK, is unpaid and for a period of less than 30 days. I was also asked about an illegal migrant who starts as an illegal worker but whose working conditions deteriorate to the point where they may become a victim of modern slavery. For illegal workers to benefit from the statutory defence, their illegal working must be as a direct consequence of their slavery or human trafficking. They will therefore not have the defence for any illegal working committed prior to the deterioration of their working conditions to the extent that they became a victim of modern slavery. However, their subsequent slavery or human trafficking will be relevant factors for the Crown Prosecution Service to take into account when considering whether a prosecution is in the public interest. For absolute clarity, only the wages earned before the statutory defence applies to them would be recoverable under the proceeds of crime legislation.

I think I have covered most of the points raised. If there are any that I have missed, I will be happy to deal with them. I covered the point about reasonable excuse and reasonable cause in my main contribution. It remains our view that what is unfair is firms undercutting their competitors through exploitative use of illegal labour, so distorting competition, and those illegal workers taking jobs that should be available to all workers who are legally here and legally part of the labour market. I therefore commend the amendment standing in my name in this group, and ask the noble Lord to consider withdrawing his amendment at this stage.

[Baroness Hamwee]

I have two points, if I may. The Minister might have realised that referring to voluntary work and volunteering provoked quite a lot of chuntering around me, and on the Cross Benches. Listening to him, it seemed that the concepts of volunteering and voluntary work were being confused. When I looked at this a little while ago, I understood that they are different. I was confused at the beginning of the Minister’s speech when he talked about voluntary work not involving a contract. I am not sure whether that is always the case. I do not think we will be able to debate this now, but it would be very helpful if we could understand it a little more clearly—I think I speak for at least four of your Lordships, and possibly those behind me as well.

The other point is quite different. I would not necessarily agree with them but I followed the Minister’s comments about recklessness. He said that if the words “reasonable excuse” were included in the new illegal working provision in Clause 8, it would mean fewer successful prosecutions. That is indeed self-evident but it does not answer the point about whether it should be a defence, or whether the offence should be one where there is no reasonable excuse. Earlier in the debate, the noble Lord, Lord Rosser, raised the possible situation of someone being confused by what permission he had, or by the documents and so on. I would like, at any rate, to understand better what I heard from the Minister on that point.

Immigration Bill

Debate between Baroness Hamwee and Lord Bates

Monday 18th January 2016 Lords Chamber

[The Minister of State, Home Office (Lord Bates) (Con)]

I begin, as I have been invited to, by apologising to the Committee for the late tabling of these amendments, but let me try to explain that a little further. We were faced with a particular challenge. Noble Lords will recall that we had the Second Reading on 22 December, and one issue raised at that point was that the scheduled date for the first day in Committee was 13 January. In the light of the likely publication of our response to the consultation, we agreed to see whether the start date could be put back—which it was until today, 18 January.

We were then faced with a challenge regarding the publication of the report, referred to by the noble Baroness, Lady Hamwee, in response to the consultation document on tackling exploitation in the labour market. We said that we would have a period of consultation, which ran from September through to December, and that we would legislate on the back of that consultation, which seems to me to be general good practice. The question was then: at what stage should the amendments be introduced? There was a little debate—I am looking at the Box, but it is probably best that I do not—as to whether they should be introduced on Report, or in Committee. My noble friends Lord Ashton, Lord Keen and I took the view that if they were introduced for the Committee stage, at least they could receive a thorough airing, which could be reflected on before Report.

There is a large number of amendments. We had a meeting with all interested Peers and again, we tried to listen carefully to the points that were being raised. One was that because the amendments were tabled, it was not easy for an opposition spokesman or any Member of the House, let alone the Minister responding, immediately to correlate the amendment to the specific recommendation. A suggestion was made that we should produce a schedule, which was done within 24 hours of that meeting. That then went out to noble Lords who had attended the meeting, through the usual channels to the official party groupings and to Cross-Benchers, of course.

I am trying to explain some of the thought process. It was not intended to be discourteous to your Lordships’ House but sought to be helpful. The other point is on the nature of these amendments. I think that 59 relate to the consultation document. There is also a vast swathe—I did not manage to calculate the number—linked to the licensing of private hire taxi companies. We shall be coming to that issue in later groups. I did not realise that it seems as if every locality in the entire country has its own regulation for private hire taxi companies, so one amendment cannot apply across the entire country but needs to amend legislation pertaining to a particular area. That deals with the large tranche of the amendments.

I add to the previous debate on the minimum wage regulations my appreciation and that of the whole House to the Delegated Powers and Regulatory Reform Committee for its incredibly speedy work, even if it did introduce a bit of a riposte by stating that,

“the Government tabled a substantial number of amendments—54 pages’ worth!”.

I think that is the first time I have seen an exclamation mark in one of its reports. The point was made eloquently by symbol on the committee’s feelings on that. I offer my apologies, and hope that this is by some way of explanation. I also express our appreciation to the Select Committee on the Constitution for its very helpful report, which I know we will be coming to in later stages.

With that attempt at setting out the position, which I know is not ideal, I now turn to the amendments before us. The noble Baroness has rightly noted that the Director of Labour Market Enforcement’s remit covers the work of enforcement bodies that sit under two departments: the Gangmasters Licensing Authority reports to the Home Secretary while the Secretary of State for Business, Innovation and Skills is responsible for the work of the Employment Agency Standards Inspectorate and the HMRC’s national minimum wage team.

The Government have been clear in the consultation that we published and our response to it, as well as in assurances made by my right honourable friend James Brokenshire in Committee in another place, that the director will be a joint appointment by the Home Secretary and the Secretary of State for Business, Innovation and Skills. They will jointly appoint the director and receive the strategy. The noble Baroness may have concerns about how the two Secretaries of State will reach agreement, but I reassure her that preventing abuse of labour market laws is a priority for both departments. Subject to parliamentary approval of the role, they will both be looking to appoint a director with the necessary skills and experience to make a difference.

The requirement to consult Scottish and Northern Irish Ministers in Amendment 3 brings me to the territorial extent of this role. Employment law is broadly reserved as the UK operating as a single labour market brings great benefits to workers and employers. Therefore, the director’s remit will be UK-wide. However, there are parts of the remit where the policy is not reserved. To deal with this, we are legislating to ensure that the director can set the strategy to enforce labour market legislation only to the extent that it already applies and is reserved. That is: the whole of the UK in respect of the national minimum wage; Great Britain for the Employment Agencies Act 1973 and the Gangmasters (Licensing) Act 2004; and England and Wales in respect of the Modern Slavery Act 2015. Therefore, there will be no need for Ministers formally to consult Scottish Ministers or the Department of Justice in Northern Ireland.

However, to allow the strategy to be successful, the legislation requires it to be evidence-based and include the director’s assessment of the scale and nature of non-compliance in the labour market. To do this, the director will draw on the widest possible range of sources. This will include the intelligence hub provided for in Clause 6, but will inevitably include engaging non-governmental organisations, as the noble Lord, Lord Kennedy, requested, bodies representing employers, bodies representing workers and other organisations to develop the fullest possible picture. These will include charities, the enforcement bodies themselves, and other organisations such as the police.

Amendments 6 and 13 would require the Director of Labour Market Enforcement to engage certain people in the development of the labour market enforcement strategy, while Amendment 11 would require the Director of Labour Market Enforcement to engage with civil society and voluntary organisations in the development of the labour market enforcement strategy. It is not yet clear how the director would be able to discharge the legal requirement to,

“engage with civil society and voluntary organisations”,

which is not defined. I fear that putting this duty on the director would be unhelpful as it does not specify the full range of organisations that the Government expect would need to be consulted as part of that provision. These include non-governmental organisations, bodies representing employers, bodies representing workers and other organisations not specified in the amendment. Therefore, my opposition to it rests on it being unnecessary, while risking unhelpfully to narrow the director’s focus.

Amendments 12 and 14 appear to limit the director’s proposed role by not permitting his strategy to alter the strategies set out by any of the other enforcement bodies, or binding the enforcement bodies to delivering the director’s strategy. The director’s strategy is not intended to undermine the strategies of the enforcement bodies, or to take precedence. Rather, we expect those strategies to be informed by the director’s strategy as they deliver their contribution to tackling labour market exploitation.

On the GLA, the GLA board will continue to be responsible for the delivery of the GLA’s functions. What will change is that the delivery of those functions will sit within a wider vision of tackling labour market exploitation. While I will address this in due course, the Government’s amendments will add the functions of the GLA board to the list of labour market enforcement functions as specified. Furthermore, the GLA board will have a duty to exercise its functions in accordance with the director’s strategy. We believe that this will ensure that the enforcement bodies and the director work together more effectively.

The final amendment in this group, Amendment 38, brings me to the intelligence hub. Clause 6 as drafted gives the new director the duty to lead an intelligence hub that forms a coherent view of the nature and extent of exploitation and non-compliance in the labour market.

[Baroness Hamwee]

I think the Minister may have turned over two pages and gone on to the next group.

[Lord Bates]

Well, I have to say in that respect, I have not turned over two pages, but I may well be on to the next group. If so, and with that helpful prompt from the ever-helpful Baroness, I give way.

[Lord Bates]

I can certainly say that. That is a very helpful intervention on a number of levels. I know that officials found our meetings last week and before Christmas very helpful. I think that that will continue to strengthen the work of the Committee. With that, I will pause my remarks and hope that the noble Baroness will feel able to withdraw her amendment at this stage.

[Baroness Hamwee]

My Lords, I certainly will. It would not be profitable to continue the discussion now about the tabling of these quite considerable changes. I. too, am grateful to the officials who have been very helpful in the most difficult circumstances.

It is extraordinary to me how many people outside this House read the report of our proceedings in very considerable detail, particularly those who have an interest in the subject matter. For them, I will say that I checked with the Public Bill Office this morning and it was confirmed to me that, provided we do not divide but merely agree the government amendments, there are no bars to our tabling amendments to what will then be part of the Bill on Report. I apologise to the Minister and officials if that prompts a flood of further amendments—but so be it.

My only other point, with regard to the Minister’s remarks on taxis, is to offer him a piece of advice. He should never tell a taxi driver that he is a Minister in the Government—or indeed a Member of this House—because he will not get out of the taxi without a most difficult conversation.

On Amendment 11, I understand the technical points that the Minister makes, but the third sector is hugely important. As has been said, it is the linchpin of the way in which our immigration service—if that is the right word—deals with asylum seekers and some other immigrants. It is absolutely central. It should not need saying that there will be the contact with the voluntary sector and other organisations that has been spelled out. I think that it says a lot that it was felt necessary to put that down.

With regard to my amendments and which departments do what and how they work together, we are told that the legislation is a priority for both departments, but I would say that each department has its own distinctive and different priorities. That is where I see problems, perhaps, coming. I beg leave to withdraw Amendment 1.

--- Later in debate ---

[Baroness Hamwee]

My Lords, before the noble Lord responds, perhaps I may take some of those comments but in something of a reverse order. On the question of resources, the Minister referred to Clause 1(4), but that relates to provision for the director. Of course, we are concerned not just about the director but about the organisations—if that is the right term for the various entities—which will be implementing the strategy. Whoever’s strategy it turns out to be is the subject of another debate. So, although I accept the point that the Minister has made, I do not think that it goes all the way, as some of us were seeking.

[Lord Bates]

If it would be helpful to noble Lords, I should be happy to set this out in writing. However, I can tell them that the 2015-16 budget for the Employment Agency Standards Inspectorate is £0.5 million and it has 8.6 full-time-equivalent staff. For the same period, the Gangmasters Licensing Authority has funding of £4.268 million, including £100,000 for Northern Ireland enforcement, and it has 66 full-time-equivalent staff. The budget for the national minimum wage enforcement team was increased by £4 million to the current figure of £13.2 million, and it has 230 full-time-equivalent staff. We are saying that the helpful part of the role of the Director of Labour Market Enforcement will be to look at those three groups and the current basket of resource, which has been increased substantially over the past year, and to see how it can be most effectively deployed to tackle the types of wrongs that we are seeing.

[Baroness Hamwee]

My Lords, the figures are interesting. Nobody is ever content and no one will say, “That’s enough”, but my impression—I say this as somebody who hears those figures, although they do not really mean anything to me; I am not an expert in any of those fields—is that there are organisations struggling to do the job that they have and which in some cases they do absolutely extraordinarily. Just hearing figures expressed in millions does not advance the argument in the way that I know the noble Lord and I are concerned with.

[Baroness Hamwee]

My Lords, I am looking to the Minister, but he has not received inspiration on that yet.

[Lord Bates]

I have not received inspiration, but I do not doubt for one minute what the noble Lord rightly observes. He refers to a time when we were having to tackle some pretty sizable problems in the public finances, and that continues to be a pressure. That is one reason why, I think, we are bringing these resources together. It would be helpful—and I will certainly undertake to do this—to set out in one letter to Members of the Committee in your Lordships’ House the situation on resources, perhaps in a way that is easier to assess. However, the point is that when you have different pots in different areas with different groups of people, it makes it all the more important that they are joined up, that there is co-ordination and that we get the maximum effect for every taxpayer pound that is spent. That is, of course, what the remit of the Director of Labour Market Enforcement is envisaged to be.

[Baroness Hamwee]

But within the budgets set by the two departments, as we have just heard. I do not think that anyone is arguing against efficiency, but those budgets are being spent, I assume, to their maximum now. So it is a discussion that will go on.

With regard to the point about the regulations and the possibility of extending the scope of the director’s work, the Minister mentioned parliamentary oversight. Of course, that is a very current issue, because oversight only goes so far. Indeed, one might say that it is “sight” but not “change”, because we cannot do anything about secondary legislation.

I want to comment on the points that have been made about trends and the work, other than that to which the noble Lord and I have pointed, on the protection of workers. I realise that the way in which I have worded my amendment was perhaps not the most felicitous. I did in my speech mention things such as monitoring and trends, and I meant that in a very wide sense. I understand, for instance, that the GLA—this is a very important part of its work—has been extremely successful in its relationship with employers and runs a liaison group with employers and agents in the sectors in which it currently works. One might take any survey with a pinch of salt, but a 93% approval rating—I think I have got that right—from employers in their view of their own regulator strikes me as being pretty high, and I for one certainly do not dismiss the points that have been made by the two noble Lords on the other side.

Refugees: Eritrea

Debate between Baroness Hamwee and Lord Bates

Tuesday 12th January 2016 Lords Chamber

[Lord Bates]

When we hear about this situation, as when the Prime Minister heard about it, the immediate instinct is to think that there are, somewhere, 3,000 unaccompanied children waiting to find placement. Of course, 3,000 is an estimate of the total number, and where they are in the system is clearly a matter to be defined. We think that the way to do that is through the Dublin regulations and by making sure that they are properly recorded when they arrive in the UK. It is worth noting that the conclusion to that report said:

“We strongly commend DFID for setting an exemplary standard in its commitment to funding humanitarian assistance to address the Syrian crisis”.

That is part of the solution, but there is more to be done, and the Prime Minister will make an announcement on his review when he has examined all the facts.

[Baroness Hamwee (LD)]

My Lords, do the Government recognise that some of the factors identified in the special rapporteur’s report—fear of forced conscription; fear of facing the same ordeal as their parents, including imprisonment on the basis of religious affiliation; hopelessness, and so on—are push factors, which are different from the pull factors that are often talked about by the Home Secretary? Will he accept that if the Government recognised some of the push factors at play, tragedies might be avoided, such as that which happened a few days ago, when a young boy died trying to cross the channel to join his sister in the UK, even though I am advised that he would have been entitled to have his case considered here under Dublin III?

[Lord Bates]

It is right to point to that. We have seen an increase from 2012, when 80 unaccompanied asylum-seeking children from Eritrea came to the UK, to last year, when 460 came. The noble Baroness rightly identifies that the point behind that is the arbitrary nature of national service. The Government have given a commitment that that will now be limited to 18 months. The second factor which we weighed in their favour was the fact that they required an exit visa that required them to have completed national service before they could leave the country. That is why we continue to take very seriously applications for asylum from that country, particularly from unaccompanied asylum-seeking children.

Misuse of Drugs Act 1971 (Temporary Class Drug) (No. 3) Order 2015

Debate between Baroness Hamwee and Lord Bates

Tuesday 22nd December 2015 Lords Chamber

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, the order came into force on 27 November, two days after it was laid before Parliament.

I put on record our thanks to the Advisory Council on the Misuse of Drugs for its advice, which has informed the order we are considering today. Its numerous risk assessments over the last six years or so on a range of new psychoactive substances, so misleadingly referred to as “legal highs”, has been the cornerstone of our work to date to ban 500 of the most harmful of these substances under the Misuse of Drugs Act 1971.

Subject to Parliament’s will, the Psychoactive Substances Bill will be enacted in the new year. As I informed the House when we debated the Bill before the Summer Recess, the Misuse of Drugs Act will continue to sit at the apex of the UK’s drug legislation, ensuring we have the most robust controls in place for the most harmful drugs, whether or not they are categorised as new psychoactive substances.

The order relates to methiopropamine, commonly known as MPA—I shall refer to it as MPA for the remainder of this address—as well as its simple derivatives. The effect of the order is to make these drugs subject to temporary control under Section 2A of the Misuse of Drugs Act 1971, thereby making it an offence to produce, import, export, supply or offer to supply these drugs. As with all previous TCDOs, personal possession will not be criminalised. The controls will last up to 12 months while the ACMD considers whether these drugs should be made subject to a permanent ban. The order is already having the desired effect. We are aware that since it came into force, websites marketing MPA have withdrawn it from sale.

It may assist if I now set out the evidence put forward by the ACMD surrounding MPA. The council reports that MPA has recently emerged as a replacement drug for the methylphenidate-based compounds also currently subject to temporary control. While MPA has been monitored by the ACMD, hard evidence of it being injected has only recently surfaced.

MPA is a stimulant psychoactive substance which is similar in structure to other drugs in that class and has effects such as stimulation, alertness and an increase of energy and focus. Side effects reported include abnormally fast heart rates, anxiety, panic attacks, perspiration, headaches, nausea, difficulty breathing and vomiting. As with all injecting drugs, there is also a potential high risk of bacterial infection and local tissue damage.

The National Programme on Substance Abuse Deaths reported 30 cases where MPA was found in post-mortem toxicology between 2012 and 2015. In 22 of these, MPA was implicated in the cause of death. As such, on 18 November the ACMD recommended that urgent action should be taken due to the proliferation in use and an increasing number of associated deaths and harms related to MPA.

For all these reasons, my honourable friend the Policing, Crime and Criminal Justice and Victims Minister accepted the advisory council’s advice that MPA and its simple derivatives should be subject to the order that has been in force across the UK since 27 November. It enables UK law enforcement to take action against traffickers and suppliers of the new temporary class drugs. The order has given enforcement agencies the requisite powers to disrupt the sale of MPA both online and in local head shops. The order has also sent out a clear message to the public, especially to young people, that these drugs and the brand names associated with them carry serious health risks.

We know that the law change cannot on its own deter all those inclined to use or experiment with these drugs. However, we expect the order to continue to have a notable impact on their availability and, in turn, on demand for these drugs, as we saw with other banned substances.

Parliament’s approval of the order will ensure that it remains in force to reduce the threat to the public posed by these temporary class drugs, for up to 12 months. Together with the Advisory Council on the Misuse of Drugs, we will consider the case for placing MPA under permanent control under the 1971 Act. I commend the order to the House and beg to move.

[Baroness Hamwee (LD)]

My Lords, the House will be grateful to the Minister for managing, just about, to get through that presentation. I have one question and one request for him. My question is about the progress of the Psychoactive Substances Bill. He mentioned that it would be enacted in the new year but it seems to have become a bit stranded in the House of Commons, and I wonder whether he has any more detail than that.

My request relates to a completely different matter. It comes from a conversation with colleagues just outside the Chamber during the previous debate. Next time the Minister does one of his amazing walks for charity, can he tell us, as we would like to support him? I do not know whether he is going to the North Pole or the South Pole over Christmas. I prefer to think of him sitting by a fire with a big box of chocolates but I do not think that is quite his style. However, we are so impressed by what he does during recesses, when most of us slob about, that we would at least like to support him in that way.

Syrian Refugees

Debate between Baroness Hamwee and Lord Bates

Thursday 17th December 2015 Lords Chamber

[Lord Bates]

We have looked at that programme, which is impressive but unlike ours is not focused on those in greatest need. We are having discussions at present: the Home Secretary is meeting with NGOs and we are talking to them and to church groups and faith groups about setting up a similar community sponsorship scheme, but perhaps not for people in urgent need of attention. That might not be appropriate, as it could not give the care they need. However, going forward, as the scheme expands, we would want to follow that up.

[Baroness Hamwee (LD)]

The Minister will be aware that there are many people in this country of Syrian and Iraqi origin, who are settled and pay tax here, who are desperate—I do not think that is putting it too highly—to bring in their own family members from the affected countries and care for them. Are the Government considering relaxing the restrictive rules on family visas to allow these people to play their part in helping their own families and the whole situation?

[Lord Bates]

We are not looking at that particular point—we are quite strict on that. Visas are restricted to spouses and dependent children under the age of 18; we will look sympathetically at exceptional cases involving dependent relatives. One of the reasons why the Syrian vulnerable persons scheme is so appropriate is that the UNHCR looks at trying to bring the whole family group to the UK, rather than just one member of it. Therefore, the chances of the situation mentioned by the noble Baroness arising will hopefully be less in the future.

Syrian Refugees: Settlement in the UK

Debate between Baroness Hamwee and Lord Bates

Monday 7th December 2015 Lords Chamber

[Lord Bates]

We do not want that to happen, of course. We must remember that the priority consideration regarding the vulnerable persons scheme is that the people in question are vulnerable. First, we are talking about women and children who are at risk, along with people who have been subject to torture and those in need of acute medical care. They may not be the ideal people to take up the offers coming forward under the community-based sponsorship scheme. Like the right reverend Prelate, I read that report over the weekend. A meeting is going to take place on Thursday between Lambeth Palace and the Home Office to resolve that difference—I am sure it can be resolved—and to make sure that that very generous offer is accepted and taken up.

[Baroness Hamwee (LD)]

My Lords, is the Minister aware of the recent thoughtful report from the Children’s Society, entitled Not Just a Temporary Fix, on the search for durable solutions for separated migrant children? One of its recommendations is that Home Office decision-makers should be trained in how to assess a separated child’s best interests, rather than simply referring to Section 55, the welfare duty, as if such a reference was enough.

[Lord Bates]

I read that report, which I think is good. We are looking at it and it raises a number of issues. Under the unaccompanied asylum-seeking children scheme—UASC—there is an additional level of guidance from the Department for Education, and the Minister for Children and Families, Edward Timpson, has lead responsibility for it. Also, we cannot get away from the fact that although the Home Office might have such responsibility under the Children Act 1989, local authorities have the statutory duty of care for any children under their care, whether or not they are asylum seekers.

Syrian Refugees

Debate between Baroness Hamwee and Lord Bates

Monday 9th November 2015 Lords Chamber

[Lord Bates]

The noble Lord is absolutely right. That is one of the reasons why we want the application and vetting processes to happen under the auspices of the UNHCR in the refugee camps rather than having a group of people attempting to enter the UK so that we have to make those judgments at the border. We want it to take place in the Middle East so that the right people can be brought to this country and the wrong people cannot.

[Baroness Hamwee (LD)]

My Lords, I heard this morning of an asylum seeker from Syria who has been told by the Home Office at Croydon that he cannot even make an application for asylum for another two months, which means that he cannot access Section 95 benefits and is dependent on the charity sector for clothing, food and so on. Can the Minister assure the House that, even though the vulnerable persons scheme is working in conjunction with the UNHCR, there is not a backlog growing in the Home Office as a result of the work which is being done? The person who told me about this also commented that it would be a pity if a backlog grew up because the Home Office seems to be getting much better at processing applications more quickly.

[Lord Bates]

As the noble Baroness knows, many of the people arrive at our border without any identification documents. To come back to the previous point, we need to make those checks and be absolutely sure that we are not putting the people of this country at risk by allowing people in. If there is a specific case, I am happy to take it up with the noble Baroness later. It underscores the importance of getting the message out that the way to approach Syrian refugees is through the UNHCR and the Syrian vulnerable persons resettlement scheme.

Asylum Support (Amendment No. 3) Regulations 2015

Debate between Baroness Hamwee and Lord Bates

Tuesday 27th October 2015 Lords Chamber

[Lord Bates]

There is not a fixed time. The normal time for changing benefits, or for a review to happen, is at the end of the financial year. That could not happen this year for reasons set out by the noble Baroness at the beginning of the debate, and also because of the general election. However, the time that we would be looking at those numbers would be at about the end of the financial year, which would be March 2016. We would certainly welcome evidence and data that could be made available before then, either in the early months of 2016 or by Christmas. That could inform our assessment.

[Baroness Hamwee]

My Lords, I am extremely grateful to the noble Lords who have taken part in this debate. In some cases, I had not expected them to take part, and in some I do not think that they had expected to.

No one would doubt that the Minister’s introductory remarks in particular and the concern he has shown for asylum seekers come absolutely from his heart. I do not for a moment wish to challenge his attitude on this. He said that this should be a temporary situation for individual asylum seekers. Indeed it should, provided that each application is dealt with properly. The issue of asylum seekers’ right to work was also raised. I have no doubt that we will return to that during the passage of the Immigration Bill.

Reference was made to Sweden and other countries but the judge in the 2014 case disposed of that as an argument. There is such variation between the approaches of different countries—for example, some will impose more obligations on local authorities than on central ones—that that is not an issue tonight.

The Minister referred to the substantial basis of support facilities. I have not sought to deny that. Indeed, in my speech I volunteered that various facilities and services are provided. Nevertheless, £36.95 is not generous for food, travel—which I learned during my work on this is far more significant than I had realised—and toiletries, and particularly the requirements of babies. No one seeks generosity. We merely seek adequacy.

I am glad to hear about the Government’s attitude to future consultation. The point made about monitoring is hugely important. I challenge the methodology. Yes, there was methodology but it amounted, in the case of babies and children, to rough and ready economies of scale. I was going to use the word “assessment” but there was no assessment. That is the only justification given. I quote again the Minister for Immigration, who said that,

“any extra needs particular to children are comfortably offset by the economies available to a larger household”.

There was no justification or analysis. Of course, cooking a meal for four has an economy of scale but that does not work if two of the four are children. You cannot feed them the same food as adults.

The Minister said that the evidence shows to the Government’s satisfaction that the work has been done thoroughly. As I say, I challenge the methodology. It is not to my satisfaction. I wish to test the opinion of the House.

Trafficking: Children

Debate between Baroness Hamwee and Lord Bates

Thursday 15th October 2015 Lords Chamber

[Lord Bates]

The noble Baroness makes a very interesting point and I will look at this. It is of course something that the Crown Prosecution Service will produce guidance about, working with the police forces. Also, the national policing lead, Shaun Sawyer, is leading the Modern Slavery Threat Group, which will monitor this very carefully indeed. We are conscious that we need to get to grips with this problem. If in the process of this law—it is just coming into being, with the offences having been introduced on 31 July—that proves to be helpful, I am sure that it is something that we would look at very carefully. I am happy to continue the discussion with the noble Baroness.

[Baroness Hamwee (LD)]

My Lords, what will be the impact of reductions in police budgets on training of police officers to identify victims—I am sure that the Minister will agree that that needs a degree of training and skills—and to question victims in the most supportive and effective way?

[Lord Bates]

The question of police funding will obviously be for the spending review on 25 November. There is a change to the formula there. We have made it very clear that this is a high priority. That is why the national policing lead is taking such a strong role on this. Significant amounts of training are already being done through the Crown Prosecution Service, but we will continue to keep that under review.

Asylum: Sexual Orientation

Debate between Baroness Hamwee and Lord Bates

Monday 20th July 2015 Lords Chamber

[Lord Bates]

We have to be very careful that we do not have overlapping investigations. A serious piece of work was done following some very serious accusations by the Independent Chief Inspector of Borders and Immigration last year, and we have undertaken to implement all the recommendations. In addition, as I mentioned to the noble Lord, Lord Scriven, a further action plan is being discussed with non-governmental organisations. We should allow those to go forward and ensure that the independent chief inspector continues to do his job in monitoring how his recommendations are implemented.

[Baroness Hamwee (LD)]

My Lords, it is good to hear that the action plan has been worked up in consultation with the organisations mentioned by my noble friend. Will they be involved in monitoring, and will the Home Office keep them in line not just for consultation on snapshot investigations and checks, but to ensure that the procedures and practices of the Home Office and of immigration officials are as we would all wish to see?

[Lord Bates]

That was indeed one of the recommendations. Recommendation 4,

“Ensures that all asylum claims recorded on the grounds of sexual orientation are accurately recorded as such”.

I expect that that recording and keeping of records will help us to identify where problems might exist in the system.

Psychoactive Substances Bill [HL]

Debate between Baroness Hamwee and Lord Bates

Tuesday 14th July 2015 Lords Chamber

[Lord Bates]

That is an interesting point which will, of course, be considered by those committees which advise the Government on these important issues. I would imagine that that factor has been considered, and if it has not, I am sure that the noble Lord will ensure that in future it should be considered in making decisions on this issue.

Home Office records confirm that no university that has applied for a Schedule 1 licence has so far been refused one, and we have not seen any evidence that licensees have been unable to comply with the Schedule 1 licence requirements. About 70 Schedule 1 licences are currently held by universities and hospitals enabling them to undertake research with all substances in Schedule 1 under the terms of that licence, as opposed to being limited to a single drug.

Where that research involves live human subjects, there are other, non-Home Office requirements, such as ethics approval, and I think there is some anecdotal evidence that the ethical demands, processes and commitments that must be gone through are more onerous than the licensing ones and may in practice present greater challenges to researchers than the requirements of the 1971 Act.

I have no doubt the debate on the legal status of cannabis, including its scheduling, is one we will return to from time to time as the evidence develops. For now, I hope I have been able to present some evidence to the noble Baroness that while we carefully considered her proposal, we do not regard it as necessary and do not see the case for there being a change in the Government’s position at this time.

[Baroness Hamwee]

My Lords, I apologise to the noble Baroness, Lady Hollins; I had not realised that she had added her name. I am very grateful for her support, as I am to other noble Lords who have supported this amendment. I note that the Labour Party is unconvinced that this is the appropriate vehicle, and I am still unclear whether it is convinced of the need to deal with the issue and therefore perhaps to find another vehicle. I saw the video as well—I picked it up online—but I am mindful of the point made by the noble Lord, Lord Ribeiro, at the previous stage about individual cases and the need for clinical trials.

Psychoactive Substances Bill [HL]

Debate between Baroness Hamwee and Lord Bates

Tuesday 14th July 2015 Lords Chamber

[Lord Bates]

I thank the noble Baroness for presenting this amendment on behalf of the noble Lord, Lord Lucas, who clearly thought that discretion was the greater part of valour, being temporarily absent from your Lordships’ House. This is a subject that he feels very strongly about and one that he raised in Committee. We took that very seriously and it resulted in another letter, on 8 July, to which the noble Baroness has referred.

I signal to officials who may be listening to the debate that I want to respond particularly to the point about the guidance that will be developed as a result of the dialogue that is taking place with the Association of Convenience Stores. I say in parentheses that those stores are very supportive of what we are trying to do because a lot of criminal disruptive activity congregates in areas where there are head shops. That is of concern to their members who are in the vicinity of those shops from a public order point of view. I am therefore keen to be able to provide an answer to the question of when guidance might be available.

For a prosecution to be brought for the supply offence in clause 5(1), the prosecution must show, among other things, that the defendant knew, or was reckless as to whether, the psychoactive substance supplied was likely to be consumed by the person to whom it was supplied, or by another person, for its psychoactive effects. The mental element of the offer to supply offence in Clause 5(2) requires that the defendant knew, or was reckless as to whether, the substance that was being offered was likely to be consumed by the person to whom it was supplied, or by some other person, for its psychoactive effects. In formulating these offences, the mental elements were carefully considered. The Government considered whether the mental element should extend only as far as “knows” but we concluded that this could create an inappropriately high bar for prosecutors to overcome, with defendants arguing that they did not know for certain that the substance they were supplying was a psychoactive substance and likely to be consumed for its psychoactive effects. The Government settled on including the recklessness threshold. A test of “knows or is reckless” is commonly used in criminal law, both in the United Kingdom and other common law jurisdictions. Indeed, the formula is used in Ireland’s Criminal Justice (Psychoactive Substances) Act 2010.

Recklessness is where a person is aware of a risk that a result may occur and unreasonably decides to run that risk anyway. As recklessness involves an actual awareness of the risk, the person’s degree of knowledge, or at least understanding, would be relevant. For example, the degree of knowledge a supermarket worker would have about psychoactive products would be less than a member of staff in a household store used to selling solvents, and less still than a member of staff in a head shop, whose trade is predominately in these substances. The mental state of each would be considered separately.

In seeking to substitute a “should know” test, as the amendment proposes, my noble friend is intending to set a higher bar for prosecution and conviction. We need to bear in mind that the Bill is, in part, directed at stamping out the reckless retail trade in these potentially harmful substances. We know that head shops use a variety of ruses in order to stay on the right side of the law, including labelling their products as “plant food” or “not for human consumption” when they are fully aware that their customers are consuming these substances for their psychoactive effect. The recklessness test is directed at such ruses and, for that reason, we would not want to lose it.

This does not mean that everyone on a checkout at Tesco or Homebase needs to subject all customers buying tubes of glue to a full-on interrogation. But they will need to think twice if two or three young people attempt to buy multiple tubes of glue and nothing else or they are making repeated purchases. The Intoxicating Substances (Supply) Act 1985 already requires a retailer to be alert to such cases, and although that legislation applies only where the supply is to persons under 18, we do not envisage that this Bill will significantly change the burden on retailers. If that were the case, the Association of Convenience Stores would not be among those welcoming the Bill.

At this point I should make it clear that the Home Office intends to work with retail trade associations, such as the Association of Convenience Stores and the British Retail Consortium, on the legislation in the run-up to its implementation. We need to provide simple messaging to ensure that the requirements of the law are clear. As to the timing, we are working with the retail trade associations to produce guidance that meets their requirements. That work is ongoing and we need to see the final form of the Bill. I regret that I cannot commit to having draft guidance ready in time to share with noble Lords while the Bill is still going through its parliamentary stages.

Once retailers have knowledge of the law, we would expect them to consider whom they are selling the product to and make an assessment. For example, what product are they selling, what is its primary use, does it fit the profile of the customer and are there any wider considerations that the retailer can infer from the transaction? The guidance will illustrate the grounds that should be considered.

We need to be reasonable. If a retailer genuinely did not know the law, they need to be educated—the civil sanctions in the Bill allow for this, providing for a graduated response where appropriate—but where retailers either know or are reckless as to the consequences of their actions, they cannot be absolved of responsibility and action can and should be taken.

In any event, the proposed substitution of a “should know” test would be likely to capture some people who would not be caught by the recklessness test. This is because the “should know” test would capture someone who did not appreciate the risk but ought to have known that the substance was likely to be consumed for its psychoactive effects. Such a person would not be caught by the current recklessness test. This would appear to be contrary to the objectives of my noble friend and the noble Baroness who moved the amendment.

I hope that I have been able to satisfy noble Lords on the provisions of the Bill as it relates to retailers and therefore ask the noble Baroness to withdraw the amendment at this stage.

[Baroness Hamwee]

My Lords, it would be inappropriate for me to take the matter any further. I am sorry that the guidance—or guidelines; I am not quite sure which I should have said—will not be ready. I realised that it would not be ready before Third Reading, but I had hoped that it might be ready for the Commons to take some cognizance of it. I remain a little concerned, but, in the circumstances, I beg leave to withdraw the amendment.

Psychoactive Substances Bill [HL]

Debate between Baroness Hamwee and Lord Bates

Tuesday 30th June 2015 Lords Chamber

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, as the noble Baroness explained, these amendments relate to the issuing of a prohibition notice and a premises notice under Clauses 12 and 13.

I begin by saying that the Government fully support the principle of these amendments, so much so that the Bill already contains similar provisions which seek the same thing. A prohibition notice can be issued under Clause 12 where a,

“senior officer or local authority reasonably believes that the person is carrying on, or is likely to carry on, a prohibited activity”,

and,

“that it is necessary and proportionate to give the prohibition notice for the purpose of preventing the person from carrying on any prohibited activity”.

A premises notice in Clause 13 can be issued where a senior police officer or local authority reasonably believes that a prohibited activity, as defined in Clause 11,

“is being, or is likely to be, carried on at particular premises, and … the person owns, leases, occupies, controls or operates the premises”.

Amendments 55 and 58 seek to amend Clauses 12 and 13 respectively to require the relevant senior police officer or local authority to set out the reasons in support of their reasonable belief that the respondent is carrying on, or is likely to carry on, a prohibited activity.

Clause 14 contains supplementary provisions in respect of prohibition notices and premises notices. In particular, subsection (2)(a) of Clause 14 requires that a notice must,

“set out the grounds for giving the notice”,

as well as the consequences of failure to comply. The Government envisage that the grounds specified in the notice will be those supporting the reasonable belief.

Amendments 57 and 60 seek to ensure that the respondent is fully informed of the consequences of a failure to comply with a notice. Again, this is already addressed in Clause 14—the relevant provision being in subsection (2)(b).

In relation to Amendment 60B, the possible consequences of a failure to comply with a notice are unlikely to vary according to the grounds on which a notice was issued. Essentially, the possible consequences are twofold: either a prosecution is pursued for the relevant offence in Clauses 4 to 8 of the Bill, or the relevant law enforcement agency makes an application for a prohibition order or premises order, as appropriate. On the basis that the Bill already delivers the outcome sought by these amendments, I trust that the noble Baroness, Lady Hamwee, will feel able to withdraw the amendment.

[Baroness Hamwee]

My Lords, I am grateful for that response. The Minister’s comment that the explanation in the notice would vary according to the circumstances is an interesting one which I welcome because standard-form official explanations which are not designed for particular circumstances are often pretty much unreadable. One cannot necessarily work out quite how they apply. I hope that by highlighting that, I am not causing the hearts of people outside the immediate part of this Chamber to sink with the extra work that might be required in that regard. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Bates]

I shall respond, first, to the point made by the noble Lord, Lord Tunnicliffe. Clause 23 would require the higher criminal standard of “beyond reasonable doubt”, so that is how the matter would be dealt with.

Turning to the point about appeals, I believe that, as proposed, Amendment 64A would be disproportionate, given the nature of prohibition and premises notices. These notices are the first stage of our graded response to tackling the supply of new psychoactive substances. They are intended as a final warning and can be issued by a senior police officer or local authority requiring that the subject of the notice desist from any prohibited activities.

A prohibition notice can be issued only if the relevant officer reasonably believes that the respondent is carrying out, or is likely to carry out, prohibited activity. Therefore, it cannot be issued without good reason, and the issuing officer must also reasonably believe that it is a necessary and proportionate response, given the circumstances. As I have indicated, a notice acts as a final warning. Breach of a notice is not a criminal offence and there are no other direct sanctions flowing from a failure to comply.

The noble Baroness drew a parallel with community protection notices and pointed to the fact that the Anti-social Behaviour, Crime and Policing Act 2014 provides for a right of appeal against such notices. Indeed, this amendment largely mirrors Section 46 of the 2014 Act, but there is an important difference between a community protection notice and the notices provided for in the Bill, in that breach of the former is a criminal offence—hence the right of appeal.

I am not persuaded that, in the absence of a direct sanction for breach, a right of appeal is called for. If the respondent takes issue with a prohibition or premises notice, they can make representations to the issuing agency, which could then, if appropriate, withdraw the notice in accordance with the provisions in Clause 14.

Where the relevant enforcement agency concludes that a prohibition or premises notice had been breached, it could decide to pursue a prosecution for one of the main offences or make an application for a prohibition order or premises order, as the case may be. If the respondent is charged with an offence, they will be able to defend themselves in court in the normal way. If an application is made for a prohibition or premises order, again, the respondent will have his or her day in court and will also be able to appeal against the making of the order. We therefore have judicial oversight where it is appropriate.

I have tried to set out the nature of our graded response to the trade in new psychoactive substances and to state why I believe that an appeal process is unnecessary in the case of a prohibition or premises notice.

The other amendments in this group seek to provide for the criminal standard of proof, rather than the civil standard, to apply when a court is considering making either a prohibition or a premises order—a point on which the noble Lord, Lord Tunnicliffe, sought clarification.

Clauses 17 and 19, which Amendments 65, 65A, 68 and 68A seek to modify, make provisions for the application process for prohibition orders and premises orders, outlining a number of conditions that need to be met for an order to be made. Proceedings under Clauses 17 and 19 are civil proceedings. Accordingly, it follows that the civil standard of proof should apply. The noble Lord suggested that, as the proceedings are part of the criminal process, the criminal standard should apply, but this is based on a false premise. The whole point of the civil sanctions in the Bill is to enable law enforcement agencies to adopt a proportionate response to any offending behaviour and, in appropriate cases, to seek to tackle the behaviour by action short of a prosecution.

The application of the civil standard to such proceedings is not without precedent. Under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, the civil standard applies to proceedings in respect of anti-social behaviour injunctions. The civil standard also applies to proceedings under Section 34 of the Policing and Crime Act 2009 in respect of gang injunctions. Of course, if a prohibition order or premises order is breached, the criminal standard of proof would apply to any proceedings for an offence under Clause 23, as I stated.

One of the key purposes of these civil orders is to enable the police, local authorities and other law enforcement agencies to act promptly to nip problems in the bud before they escalate. If the criminal standard of proof were to apply, it would necessarily dictate that more time was required for evidence gathering and there might be little to be gained by applying for a prohibition order as opposed to pursuing criminal prosecution for an offence under Clauses 4 to 8. These amendments would circumscribe the current flexibility built into the enforcement powers in the Bill, to the detriment of communities and defendants alike.

Much the same arguments apply to Amendments 85A to 85C to Clause 28. The clause provides that proceedings before the court under Clause 18 or Clause 25 are civil proceedings—those clauses relate to the making or variation of orders on conviction. It is the case that such proceedings take place in a criminal court, but it is important to remember that a prohibition order or premises order, as with similar civil orders, is not a punishment. As such, they do not form part of the sentence of the court. These orders are preventive in nature and in these circumstances it is again appropriate that the civil standard of proof and the civil standard of evidence should apply. Given that these are quite properly civil proceedings, I hope that the noble Baroness and other noble Lords with amendments tabled in this group will, on reflection, consider that the civil standard should operate and, in the light of this explanation, that the noble Baroness will withdraw her amendment.

[Baroness Hamwee]

My Lords, the Minister said that it is not intended as a punishment—I think it was during the debate on a previous group that I wrote down that we heard from the Dispatch Box the term “sanction”. I will need to go back and have a look at that.

As to whether or not we are operating on the basis of a false premise, I do not think that it is quite that, but rather that we have different views as to whether there should be civil or criminal proceedings—it is not so much the premise as the approach.

A premises notice could be given when the activity is being carried on, thought to be carried on or likely to be carried on by somebody other than the premises owner. I am actually quite concerned about how these things interplay.

As regards an appeal, I am glad to hear that representations can be made to the police or the local authority about the notice being withdrawn. However, it does raise the question, certainly to me, of whether there should not be explicit provisions about the right to make representations and how representations should be considered, possibly by providing for a more senior officer to look at the matter. That is not necessarily a very satisfactory way of dealing with it, but there is something in there that we would like to think about—my noble friend is nodding encouragingly; I hope it is encouragingly—as to how to cover the right to make representations and how they can properly be dealt with. Between now and the next stage we will have a think about that—but of course I beg leave to withdraw the amendment.

Psychoactive Substances Bill [HL]

Debate between Baroness Hamwee and Lord Bates

Tuesday 30th June 2015 Lords Chamber

[Lord Bates]

I think I have tried to deal with that important point. Effectively, it is a discussion about which came first, the chicken or the egg. On the exact phraseology—I am just trying to read and, being a simple man, I can do only one thing at a time; it is difficult to multitask at the Dispatch Box—my understanding was that the advisory committee used a particular phrase, which was not as strong as the noble Lord perhaps suggested. However, it was an invitation to the Government to explore legislation, which they then chose to do through a multidisciplinary panel along the lines I outlined earlier.

Clearly, there will be a point—once we have come back and published the Bill—where the Home Secretary, quite rightly, wants to explore further. The letter of 26 May to which the noble Lord referred, and which I do not have in front of me, sought the scientific advice of the ACMD on how we use forensics to determine what is a psychoactive substance. It was a particular task, which I hope demonstrates that there is a healthy relationship between the Home Office and the ACMD, which is not of course uncritical. It has a very important role to play. The fact that the chair and other members of that committee formed part of the group is important.

Let me just read out a point that has been highlighted for me. However, since October 2014, when the Government published their response to the expert panel’s report and Ministers wrote to the ACMD, we have been open and transparent about our plans to develop the blanket-ban approach, now encapsulated in the Bill. The Home Secretary has written again to the ACMD and we look forward to receiving its views on how we can strengthen the UK’s forensic capacity and capability to support the implementation of the legislation. I think that is broadly what I said the letter was about and what the response was. If there is any difference, I will write to the noble Lord.

In the mean time, I would be grateful if my noble friend would consider withdrawing his amendment.

[Baroness Hamwee]

My Lords, it is appropriate to mention that, as well as the two committees to which the Minister referred, the Secondary Legislation Scrutiny Committee also takes an interest in consultation on regulations. I was a member of it for quite a long time and we frequently asked officials to go back to different departments because an Explanatory Memorandum gave very little information about the consultation that had been undertaken and the responses to it. That probably got into my DNA so I did not even realise it was there in prompting me to raise this point. I would not threaten the Minister with the Secondary Legislation Scrutiny Committee but it will certainly be on top of this if the Explanatory Memorandum is inadequate in this respect.

--- Later in debate ---

[Baroness Hamwee]

My Lords, Clause 6, I believe, replicates almost exactly the provision in the Misuse of Drugs Act. Without commenting on either of the areas of concern, although I quite understand the concern, my question to the Minister is: have the Government had any advice about extending the list of aggravating factors generally? Right at the start of Committee we raised the issue of a review of the Misuse of Drugs Act. This is the sort of thing that could well come within the scope of a review.

The Minister will explain to the Committee in a moment the one word which would be different from Section 4A of the Misuse of Drugs Act and that is in his Amendment 43 to Clause 6(6). The MDA talks about delivering a controlled drug to a third person. Like the original drafter of this provision, I would have thought that referring to a psychoactive substance is logical and if we take out the word “psychoactive”—unless we are going to be told that that is what we have to read into it—it would seem to mean that if someone under 18 delivering anything to another person in connection with an offence falls within this. But I had better not further anticipate what we will be told about this.

[Lord Bates]

My Lords, these are two very important areas—prisons and children—and I am grateful to the noble Lords, Lord Rosser and Lord Kirkwood, for introducing these amendments.

I will put some remarks on the record but, given the views that have been expressed around the Chamber regarding children, I will undertake between Committee and Report, if the Children’s Society and noble Lords were interested and the right reverend Prelate was minded to join us, to arrange for us to meet the Children’s Society, with officials, and really examine this part of the Bill to see whether this is something that we need to look at in more detail. I will put some general remarks on the record but that is a commitment that I am happy to give in this important area.

I begin by acknowledging the problem that new psychoactive substances are causing in prisons, and take this opportunity to reassure noble Lords that a wide range of work is currently under way within the National Offender Management Service, including clear and unequivocal guidance to prison governors and staff about the dangers posed by these substances. There is a widespread prison media campaign, including the use of prison radio, to ensure that all prisoners are aware of the very serious risks associated with using new psychoactive substances. A National Offender Management Service steering group has recently been established to deliver actions on supply reduction; demand reduction; data and research; and messaging and communications.

Psychoactive Substances Bill [HL]

Debate between Baroness Hamwee and Lord Bates

Tuesday 23rd June 2015 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I agree with so much of what has been said and will endeavour not to repeat it, other than just a little.

The point made about the appropriateness and therefore the credibility of the person undertaking the education, as I shall call it for want of a better word, is something about which I feel very strongly. When I was about to leave school—they left it until after our A-levels to give us anything that might now come under the heading of PHSE—there was a short, embarrassed and embarrassing discussion, which was not a discussion because we were talked at, by the member of staff least likely to be identified with by any of the 18 year-old girls present. The talk was about the white slave trade, and none of us could identify with her or with it because it was so unrelated to real life. Therefore, the term in subsection (1) of the amendment referring to “the realities” struck a chord with me. This work has to be trusted and be undertaken by somebody who is saying things that seem sensible to the people listening to them. That may include variations in harm and degrees of harm. If some substances are not harmful, one needs to say so. In subsection (1), I also liked the words,

“informed, risk-aware, resilient and responsible”,

which cover an awful lot of important ground.

I would want to see this work done in a wider context. Alcohol, tobacco, coffee and chocolate are I suppose referred to here. I wonder whether one can divorce this kind of education from sex education, for instance, because it is all about recklessness and about kids getting themselves into situations that are difficult and hard to get out of. What is in here is hugely important but it is part of a wider picture and needs to be presented as such.

With regard to Amendment 104, my noble friend and I refer to similar measures as part of our amendment about decriminalisation for possession—in other words, what can be done if someone is found to be in possession but it is not an offence. We have linked drug treatment and awareness. In that context, I should confess to the House, because there are all sorts of awareness courses, that I once had to go on a speed awareness course. Your Lordships can interpret that how you like.

[The Minister of State, Home Office (Lord Bates) (Con)]

I was getting nervous at that point for the noble Baroness, but was it speed as velocity?

[Baroness Hamwee]

It was, and the police were a bit too fast to prosecute, in my view.

[Lord Bates]

My Lords, I am grateful as these are important amendments and I pay tribute to the noble Lord for introducing them. When we had our meeting of all interested Peers, he said that it was vital that we spaced our time in Committee to allow in-depth debates on the key themes which run through drug policy. To me one of the key themes, along with enforcement, must be the value and importance of education. The noble Lord has afforded us that opportunity, along with the Official Opposition, and I am grateful for that.

I want to address some specific concerns, but a number of the points that I will raise were touched upon by my noble friend Lady Chisholm. She was good enough to say something about me but, behind the scenes, the great joy which your Lordships cannot see is that when we are having our briefings, because of her distinguished background in nursing and her volunteering within a drug rehabilitation unit, she brings great sensitivity and understanding to this issue. I have drawn on that many times myself and I am grateful for it.

I want to start with the big picture on education. The more that I have looked into it, the more I think that the most difficult thing in winning the battle in education has been the term “legal highs”. The fact that we have seen this sort of heading everywhere—it is pervasive, even on the high streets—saying there is somehow a high which is not age restricted, and which you can walk into a shop to get without being prosecuted for it, has been one of the most dangerous things for the policy of education. One of the groups which came to see me and officials at the Home Office in support of the Bill said that, above all, they wished that we could get the message out to young people that these are often not legal highs but lethal highs. Because of the point that the noble Lord, Lord Kirkwood, made at Second Reading about the pharmacology of these drugs, the term used was that people are often playing Russian roulette as to which part of the batch they receive. Added to the fact of their being able to get these substances on the high street through a store, without producing any ID or proof of age whatever, it does immense damage to the education cause to which we are all committed.

As in other parts of the legislation, we have sought to draw upon expert opinion where we can. A number of recommendations were made in the report by the Advisory Council on the Misuse of Drugs, Prevention of Drug and Alcohol Dependence. It highlighted the importance of embedding universal drug prevention actions in wider strategies to support healthy development and well-being in general. It also recognised that targeted, drug-specific prevention interventions remain a valid approach to those individuals considered to be at risk of harm. That came on board along with the expert panel’s report. When the noble Lord, Lord Rosser, spoke at Second Reading, he really tried to put me on the spot by saying that there was a substantial section in the expert panel’s report about education. While that was published under the coalition Government, he wanted to know whether it would remain government policy. I made the point that that was absolutely the case and that we remain committed to it.

I am pretty sure—and I will write on this if I am wrong—that the relatively small amount of £180,000, which was quoted in the Written Answer, will be part of a breakdown of the £7 million. The majority of that is a health lead and we were talking about what the Home Office spends, not on overall drug prevention, but specifically on new psychoactive substances. That is a key element.

I know this may sound strange but the legislative programme has a place in provoking awareness. I know this from my own Twitter account, where I now have a large number of new followers who do not necessarily agree with the policies of HMG in respect of new psychoactive substances. I am also realising that saying that might also get me trending on social media. I welcome this, because it is part of people engaging with the debate and the legislative process. People are asking, “Should they be banned?”, “Should there be a universal ban?”, “Should we be having partial bans or temporary banning orders?” and “Should we be widening the debate?”. The more young people who engage with the type of debate we have in this House the better.

In a similar vein, my noble friend Lord Blencathra talked about people in suits not being taken seriously when they talk in schools about drug prevention. I must be careful what I say here, given her presence in the Chamber, but the Lord Speaker’s schools outreach programme is very effective and I had the privilege to take part in it. People engage with it and talk about legislation and about the fact that legislating is not easy.

--- Later in debate ---

[Lord Bates]

At the invitation of the noble Lord, Lord Howarth, I will tell him why we disagree with him. He is right to say that in the previous groups we explored certain elements of common ground and were willing to look at them. But here, in essence, we go to the heart of the difference—a philosophical difference—between the two sides. On the one hand, does one go down the line of leaving the door open—in the right reverend Prelate’s helpful phrase, the “yes, but” approach? Or, do you say, “No. We have tried that. It is a blanket ban. We have been very clear about that”. Do you go down that route?

The expert panel wrestled with this. It was not an easy call. It set out opportunities for creating a regulatory model and looked at the New Zealand model very carefully indeed. The panel saw that there were some opportunities and good standards could be achieved—all of the points the noble Lord mentioned. But the panel said that the problem with creating a regulatory model is that it does nothing about the availability of new psychoactive substances, and use of “approved” NPS may increase, with “low risk” considered “safe” by the public. There could be the possibility that approved NPS may act as a gateway to illicit drugs. There may be a risk that unregulated drugs could be passed off as being regulated. The model could be costly and timely to implement, including establishing a regulatory body. It would not be a simple system to enforce, including the need for substance testing and test purchases. It could be difficult to prove the long-term safety of a product before it is authorised. It would be a challenge to define “low risk” and it could be a legal risk if “low-risk” products actually caused long-term harms.

Having weighed up all those points, the panel came down on the side of a blanket ban, saying that a regulatory model would not provide a proportionate response, as the infrastructure required to support the approach following primary legislation would take 12 to 18 months to develop, based on New Zealand estimates, and a mechanism for controlling NPS that were not “low risk” would still be needed, which could lead to confusing messages about NPS overall.

The regulatory power in Clause 3 has been designed to provide clarity so that there is no doubt as to our position on new psychoactive substances—they are banned—and to future-proof the list of exempted substances and ensure that substances such as medicinal products are not inadvertently caught by a blanket ban provided for in the Bill.

Schedule 1 contains broad categories of established substances and products that we want to exclude from this regime—mostly because they are already regulated by other legislation, not because the Government consider them harm free, as is the case with smoking and alcohol. Certainly the Government do not go around with a cavalier attitude. They spend a great deal of time and employ various taxation and duty regimes to dissuade people from consuming either in excess. The Home Office expert panel considered the merits of a regulatory regime as part of their examination of how best to enhance our legislative response to new psychoactive substances. In looking at the opportunities and risks presented by such an approach, the panel considered the regulatory regime adopted in New Zealand. I will not deny that the expert panel identified some opportunities inherent in such an approach. I have touched on some of those.

Effectively, these amendments challenge what I would call an essential principle of the Bill before us and undermine the essence of the Government’s approach, which has been to listen to the views of the expert panel, consider the evidence and come forward with legislation. That is what we have done. These amendments would challenge the very heart of that principle. For that reason, I am afraid, the Government cannot support them. I ask the noble Lord to consider withdrawing them.

[Baroness Hamwee]

My Lords, I do not know whether I missed it, but the response seemed to be almost entirely to the noble Lord, Lord Howarth. I clearly need to go back and read what the answer was to the first of the amendments and my other amendments in the group. Given the time—

Psychoactive Substances Bill [HL]

Debate between Baroness Hamwee and Lord Bates

Tuesday 23rd June 2015 Lords Chamber

[Lord Bates]

That is not exactly what the amendment says and we see a risk there to the prospects for the Bill, which carries the support of the Official Opposition and was in their manifesto. It was in the Conservative manifesto that we would bring forward this legislation. Norman Baker, who was the Liberal Democrat Minister in the Home Office, wrote to the Advisory Council on the Misuse of Drugs in the following terms:

“As our response makes clear, we will explore the feasibility of a UK wide new offence(s) by which the distribution for human consumption of non-controlled NPS is prohibited, based on the approach taken by the Republic of Ireland in 2010. This would give law enforcement greater powers to tackle NPS in general, rather than on a substance by substance basis. The international experience shows that it would have the most impact on the open availability of non-controlled NPS in high street ‘headshops’ and on UK domain websites, placing downward pressure on NPS related harms”.

That was from a Liberal Democrat Minister in the Home Office, not in history but in August 2014. Lynne Featherstone, who was then the Minister at the time, said on 11 March:

“I will be working right up until the dissolution of Parliament to ensure we have done as much as we possibly can to pave the way for a general ban. This will mean the next government can act quickly to clamp down on this reckless trade”.

Those are not the comments of some distant academic but the words of another former Liberal Democrat Minister in Her Majesty’s Government.

Action needs to be taken urgently to tackle new psychoactive substances, but we have not acted in a knee-jerk way, as has been suggested. The Advisory Council on the Misuse of Drugs looked at this in 2011 and issued a report saying that we should explore legislation to introduce a ban because it was clear that temporary banning orders were not working on an individual case-by-case basis. We then said that we would set up, in addition to that, an expert panel to take a broader range of views, including from law enforcement. That expert panel came to the view that there should be a ban on new psychoactive substances. That view was supported by the Home Affairs Select Committee and by the other committees in Scotland and Wales that the noble Lord, Lord Rosser, referred to. It was also of course endorsed by action by the Government in the Republic of Ireland. This is not a knee-jerk response: it has been gathering pace over a period of some three to four years. We have been steadily building up and testing the case, listening to the police and local government, and finding out what is working and what is not working. This is what they have recommended that they want to see.

This is not the end of the matter. In the wider debate, there is no reason there cannot be ongoing exploration of the effectiveness of the Misuse of Drugs Act. The All-Party Drug Misuse Group frequently produces excellent and thorough reports looking at the effectiveness of that overall policy. The Home Affairs Select Committee has the ability to look at this, and has done so. I think that there have even been specific reviews of the Misuse of Drugs Act; for example, in 2001 under the Labour Government. I am going from memory there rather than the official note, so I have to be very careful, but I think it might have been Dame Ruth Runciman who led a review of that nature. This is about timing, and if we need something further, there are many excellent avenues through which that exploration can take place.

The Government’s response is that we have a piece of legislation—the Misuse of Drugs Act—and we have a cross-government policy, which involves health, education and law enforcement. We listened to that advisory committee, took further evidence from the expert panel and recommended the course of action which we are now taking and which this amendment would delay coming into effect. That is why we do not want this amendment to be agreed and why I urge the noble Lord to withdraw it. We have made our case and built the evidence, and we have a mandate from the electorate on the manifesto to act in such a way—as did the noble Lord’s colleagues who served in the previous Government.

[Baroness Hamwee (LD)]

My Lords, a few minutes ago in his speech, the Minister distinguished between the issue of new psychoactive substances—the substance, if I can use the word, of the Bill—and the review of the Misuse of Drugs Act. My noble friend will deal with the fact that those are linked but distinct and the fact that we are not seeking to wreck the Bill, as some have suggested.

I wanted to intervene because of the reference to the report of the expert panel. We will come on to some of these issues in later groups of amendments, but one of its recommendations was about exploring,

“the feasibility of an approach to control NPS”,

and referred to,

“taking into account the need for … a robust definition in the legislation”—

an issue we are clearly going to come to. It also referred to,

“monitoring … possible adverse implications and unintended consequences”,

which we will come to as well.

In the next recommendation it also refers to “robust” definitions and needing to build,

“on learning and evidence from countries that have already taken this approach”.

It is not quite as simplistic and narrow as perhaps some noble Lords might be thinking from the debate all round the Committee.

[Lord Bates]

I certainly agree with the noble Baroness that the wider issue is not narrow, it is very broad, but what we are trying to do here with this Bill is very narrow. It is very focused and based on the evidence. The noble Baroness says that the two amendments are linked but distinct. Now she is a lawyer and I am not, but to me if they are linked then they cannot be distinct. They are linked in the sense that if they are both moved together, then one effect will be to have a review which will delay action being taken on this menace—or mischief, as the noble Lord, Lord Condon, said—which is happening up and down this country and through which people are suffering and dying. We need to take action and we are doing that on the basis of medical evidence, law enforcement evidence and evidence from the Local Government Association.

--- Later in debate ---

[Lord Bates]

There was a video, which I would be keen to see. Perhaps the noble Baroness could send me the link or I will happily sit down and watch it with her. During the Bill’s passage, we have tried to have meetings with all interested Peers. We have a meeting on health and education on I think 7 July. Notices will be put out to all parties, but that would be a good opportunity for people to come forward. I am thinking particularly of my noble friend Lord Blencathra, who gave us his personal experience of living with multiple sclerosis and its effects. The point about the alternatives might usefully be made at that meeting if he can attend, as I hope he will. As I say, details will be on their way.

The advisory council has reported that there is clear evidence that cannabis has a number of acute and chronic health effects, which prolonged use can bring about. That is why the trials are important and why Sativex went through that process. The position is that it can be prescribed by a doctor, after the Medicines and Healthcare Products Regulatory Agency issued a marketing authorisation.

I do not know whether I have failed the test but the noble Lord, Lord Rosser, and the noble Baroness, Lady Hamwee, set a pretty low hurdle as to whether the Government’s position had changed since last Wednesday. Policy used to change pretty quickly under the previous coalition Government, but now it is a little more set out. Our position is our position but generally, as matter of policy, we have to remain alert and open to the medical evidence being brought forward. The correct channel for that is though the advisory council, which obviously draws on a broad body of research and evidence. I am grateful to the noble Baroness for giving us the opportunity to explore that issue again and, with that additional assurance of a meeting specifically on health matters to give Members of the House an opportunity to talk to those making the decisions, I ask her to consider withdrawing her amendment.

[Baroness Hamwee]

My Lords, I cannot be disappointed because my expectations were not high. The Minister has been very generous, particularly on the Modern Slavery Bill, in holding meetings that included people from outside the House. I wonder whether we could bring into that meeting some who can speak much more coherently on these issues than I can. I do not ask the Minister to commit himself to that now, but perhaps I could put it in his mind.

I am grateful for the support for the underlying issue from the noble and learned Lord. I have often been asked about the high points of my career in this House and I have said that perhaps the highest of them—this shows what a rotten politician I am—was when, on a Bill on family law reform, the noble and learned Lord said from the Dispatch Box of one of my amendments to his Bill, “The noble Baroness’s drafting is better than mine”. That really was the pinnacle of my achievements in your Lordships’ House.

I am delighted that the noble Lord, Lord Blencathra, has found a drug which suits him but, as I think he recognised, these are personal matters. I am quite puzzled as to the apparent differences between the physiologies of Britons—we are by no means a homogenous race—and those of people living in other parts of Europe. Clinical research is of course important and that is very much at the heart of this proposal, as the noble Baroness, Lady Meacher, said. I may have used this phrase already but Professor Curran said that research involving Schedule 1 drugs is “a massive uphill struggle”, for the reasons of time, cost and practicality mentioned in her report. Yes, Sativex is recognised but its expense, not its effectiveness, is the issue. The noble Lord, Lord Howarth, mentioned Bediol, which I think is about 10% of the cost of Sativex. Perhaps this goes against my street credibility but it is important to say that I have in mind boring pills, not getting high from a joint. I want to make that quite clear.

The issue comes down to what is harmful. Skunk is harmful and I do not want to see people continuing to be driven to it, or having to find ways of getting the drug that helps them from outside this country. As I said, my expectations were not high but I am very grateful to noble Lords for contributing as usefully as they have, and at greater length than we did previously. I certainly look forward to discussing the matter with the Minister and his colleagues from the Department of Health pretty soon because whatever happens with an amendment to the Bill, the issue has to go forward. Having said that, I beg leave to withdraw the amendment.