Immigration Bill

Debate between Baroness Hamwee and Lord Judd

Tuesday 1st April 2014 Lords Chamber

[Lord Judd (Lab)]

My Lords, I know that my noble friend is anxious to speak on the Government’s amendment so I will leave the main argument to him.

In May 2010, the Government did indeed commit to ending the immigration detention of children. There was a widespread, positive response to this change—and there have been some improvements. Fewer children are detained, and when they are it is for shorter periods. This must be recognised. The Government’s amendments would create a legislative basis for some of these improvements, for example by setting a time limit on child detention in law. However, it is very disappointing that the Government’s amendments do not prohibit or even properly limit child detention. They do not state that detention should be a last resort, as is the current policy, or that detention should be for the shortest possible time. I fear that, in practice, it may become normal for children to be detained for the maximum permissible period, where this is administratively convenient. Amendment 8 seeks to address this concern.

Bail for Immigration Detainees, to which I am sure many of us are grateful for its experience and for what it has shared with us in its helpful briefing, produced Fractured Childhoods, a report on the cases of 111 parents who were separated from 200 children by immigration detention. Children lost weight, had nightmares and suffered from insomnia during their parents’ detention. In 2010, BID dealt with a family whose members were separated for removal. The father was detained when reporting and the mother and young children were asked to make their way to the airport to leave the UK with him the following week. The family had previously complied with the Home Office and reported regularly, as required. Following the father’s arrest, the family did not have access to financial support and the mother was unable to buy food for her children, including milk for her baby. The mother did not speak English and her very distressed eldest child had to translate when an immigration officer telephoned the family. Her younger child began waking up in the night, crying hysterically. The mother was not offered any practical or financial assistance to travel across the UK to an airport, with several young children, for an early-morning flight.

New Section 78A(2)(b) under Clause 2 states that,

“a relevant parent or carer may not be removed from or required to leave the United Kingdom if, as a result, no relevant parent or carer would remain in the United Kingdom”.

This clause envisages that one parent may be split from a two-parent family and forcibly removed from the UK. It also allows that single parents may be removed without children as long as there is a relevant carer remaining with the child.

In many cases, children are likely to be seriously damaged by such separation. In Committee, the noble and learned Lord, Lord Wallace of Tankerness, stated that the separations would occur,

“in exceptional circumstances … for example, where there is a public protection concern or a risk to national security”.—[Official Report, 3/3/14; col. 1125.]

However, the clause does not state that any specific circumstances are needed to justify separation. Amendment 5 would address this concern by providing that families must be separated only where necessary for child protection.

The noble and learned Lord, Lord Wallace, also stated in Committee that families may be split where the presence of one parent,

“was not conducive to the public good”.—[Official Report, 3/3/14; col. 1133.]

This appears to refer to cases where parents have committed criminal offences. However, the fact that a parent has committed, for example, a false document offence is surely not of itself a sufficient reason to deport or remove them without their children.

Clauses 2 and 3 define family returns cases and limit the definition of a “relevant parent or carer” to somebody who is,

“living in a household in the United Kingdom with the child”.

The child may be seriously affected if a parent who is not living in their household is removed and, indeed, may need to leave the UK with them. For example, single parents who are in prison or immigration detention are not living in a household with their child. Furthermore, there will be cases where children living in households with other family members—for example, for financial reasons—would be very seriously affected if their parent were removed from the United Kingdom. Amendments 4 and 6 would remove the requirement for parents to be living in a household with their children in order to take part in the family returns process and would safeguard the welfare of children in the sort of situations I have described.

Current Home Office policy states that unaccompanied children should be detained for removal,

“on the day of the planned removal to enable the child to be properly and safely escorted to their flight and/or to their destination”.

However, Clause 5 would allow for unaccompanied children to be detained overnight for removal, potentially multiple times.

A 28-day period is proposed between families exhausting their appeal rights and enforcement. However, Clause 2(4)(a) states that the removal directions may be set in this period. This would prevent families having a meaningful reflection period. Furthermore, we have to take seriously the evidence that that timeframe is too short for families who have been in the UK for years to consider voluntary return.

Before I finish, I should like to put four specific questions to the Minister. First, why does the Bill not clearly state that child detention should be a last resort for the shortest possible time? Secondly, how will children whose parents are in detention or prison be safeguarded, given that Clause 3 defines a relevant parent or carer as,

“living in a household in the United Kingdom with the child”?

Thirdly, is it not possible that families will be separated on removal in any case where a parent has committed a criminal offence? Does this include cases involving non-violent offences, such as possession of false documents? Fourthly, a 28-day period is proposed between the family exhausting appeal rights and removal. New Section 78A(4)(c) under Clause 2 states that “preparatory action” may be taken in this period. Can the Minister clarify whether this will include detention?

At the outset of our deliberations on Report, perhaps as I put these amendments forward I may be forgiven for saying that we all like to pride ourselves on living in a civilised society. In a civilised society, children and their well-being should at all times be central to our concerns. Indeed, many of our obligations under international conventions and agreements arise from undertakings given by British Governments of both parties. Very often, Governments of both parties were pioneers in the changes and legislation proposed.

Detention can have a serious impact on children, too often irreparably. That can lead to alienation and assist social instability in disturbing ways. It lays people open to manipulation by extremists. That is why, for practical reasons in terms of security not less than anything else, our natural concern for children being at the forefront of all our considerations matters the most. My amendments are intended, transparently, to put our commitment to children in the Bill and put beyond doubt that it will always be the prevailing values and culture that matter most. Legislation of itself achieves nothing but it is there to lay out the values to which we subscribe and to underpin them by the law. That is why it is so important.

[Baroness Hamwee (LD)]

My Lords, I welcome the Government’s amendments here. I commented on the need for these issues to be on the face of the Bill at the previous stage, as my noble friend said. I sought clarity and certainty, and it is right that those points are in the Bill. I have a number of questions, but I will not repeat the questions that the noble Lord, Lord Judd, has asked—I have just crossed through that bit of my notes—although the questions are no less valid for that.

In Committee, the Minister gave assurances that removal would not happen where the dependency between the individual and the family member was broken, for instance when the former dependant—as he called him—was a victim of domestic violence. Could my noble friend confirm that that would be covered by the new subsection (2B)(b)? I would be grateful if he could say anything about how it will operate when the immigration officer or Secretary of State considers how a matter would have been dealt with had it been put to him or her.

New subsection (2A)(b) refers to a child,

“where P has care of the child”.

I had a look to see what the phraseology was in the draft regulations we were sent before Committee—I presume they will not go ahead now. They referred to “parental responsibility”. I warned my noble friend that I would ask these questions and realise this might be a technical one, but I would be grateful if he could explain the distinction between having care of a child and having parental responsibility. This may be in the same area as the question of the noble Lord, Lord Judd, about not being in the same household. It is certainly related to that.

I want to take advantage of these amendments to say how much I welcome the Government agreeing to pin down provisions for conditions at short-term holding facilities—a matter that my noble friend Lord Avebury raised—and the consultation, which I understand is to be undertaken. However, like other noble Lords, I feel strongly that the 24 hours that is referred to must not become the norm: it is a maximum.

On Amendment 8, in the name of the noble Lord, Lord Judd, how can the term “last resort” be demonstrated practically or legally? Is it a term found in legislation? Certainly, it was used at the Dispatch Box and is in Home Office policy. I warned my noble friend that I was going to ask about that but, since then, I have found the answer. It is used in the United Nations Convention on the Rights of the Child, which is reproduced in Welsh legislation. It is also used in Northern Ireland justice centre rules and—I hope this will appeal to my noble and learned friend who was previously Justice Minister in Scotland—in Scottish primary legislation. I say that in support of the noble Lord, Lord Judd, because I want to pre-empt the criticism that this is not the sort of language one should put in a Bill but is simply descriptive.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Judd

Tuesday 12th November 2013 Lords Chamber

[Lord Judd (Lab)]

My Lords, I strongly support the amendment. I remember, on a visit to Holloway, being tackled very forcefully by a prison officer, who said how outraged she was, fulfilling her duties, sometimes quite late at night, of receiving and processing people who were being taken in to that prison after court proceedings, that only at that stage did the staff discover that there was somebody vulnerable at home. It is outrageous in any decent society that there is any possibility of something like this happening. I think sometimes that we just do not think through the consequences. Apart from the possible inhumane results, not that infrequently a vulnerable person in that situation will have been in the care of a woman or a man—it is not exclusively a matter for women—in a home that has had more of its share of disrupting influences on that child. For the child suddenly to be left in this predicament only compounds the insecurity that that child has faced in life and, indeed, could well accentuate a tendency to anti-social behaviour at a later stage.

If we are trying to reduce crime and encourage the young to forgo the possibility of delinquent behaviour, a demonstrable sense of care by society is very important. From that standpoint, it seems to me that this amendment is crucial. I will be very sad if the Minister feels unable to accept it, because I am quite certain that it must be pursued on Report. For a prison officer, who was deeply concerned, to raise the matter with me brought the point home to me all the more forcefully. It is quite shocking that this sort of situation can occur. The sooner we eliminate that possibility, the better.

[Baroness Hamwee (LD)]

My Lords, I can well understand the problem that individuals facing sentence may be in denial about the consequences. In what I think is a parallel example, working on adoption through the Select Committee earlier this year and talking about placements of children and whether it was right for a child to be placed away from its birth parents, we were told time and again that it was at a very late stage that other members of the birth family would come forward offering to care for the child. I do not want to leap to conclusions on how this proposal might operate, so I ask the noble Lord whether he or those involved with this campaign—I regret that I have not seen the detail—have consulted, first, the courts and, secondly, the Local Government Association about the operation of such a scheme.

Offender Rehabilitation Bill [HL]

Debate between Baroness Hamwee and Lord Judd

Wednesday 5th June 2013 Lords Chamber

[Baroness Hamwee]

My noble friends Lord Marks of Henley-on-Thames and Lord Dholakia and I have Amendments 10, 11 and 12 in this group. The three amendments are on the same subject, the needs of female offenders, but are a little more specific. I very warmly support the amendment moved by the noble and learned Lord, Lord Woolf.

According to Section 217 of the Criminal Justice Act 2003, the court, in certain circumstances, has to avoid “as far as practicable” imposing a requirement where there might be,

“conflict with the offender’s religious beliefs”,

or with the times when,

“he normally works or attends any educational establishment”.

I use the term “he” to mean any offender, of course. To take the issue of female offenders’ concerns a little further, it seemed to me that those include family circumstances and the need to act as a carer, not just to children but perhaps to a spouse, an infirm elderly parent or to other family members. Building on what we have in the 2003 Act, I suggest that the supervisor shall “have regard to”—using the same words as the noble and learned Lord in that respect—“the compatibility” of the supervision requirements with “the offender’s family circumstances”. Caring is something particularly in my mind. The requirements might include one to attend at a particular place, such as one of the various centres which provide services and activities of a rehabilitative nature. When the offender, generally the mother, is responsible for a child and it is desirable that the child goes with her, that should be taken into account. My noble friend, I think on the first amendment, referred to both “flexibility and common sense”. These seem to me to be common-sense points but it does no harm to spell them out. Although the noble and learned Lord, Lord Woolf, said that there should be no need to be specific, Section 217 is quite specific.

On the second amendment, although we will of course be told that this is the case, I would, again, like the reassurance that a requirement specified under new Section 256AA must be “reasonable and proportionate”. It seems to me that those words are themselves reasonable and proportionate. I hope that the Minister who is answering—it looks as if it is going to be the noble Lord, Lord Ahmad—can give me that reassurance. New Section 256AA(6) provides that the Secretary of State has to “have regard”, as we have said, to the purpose of rehabilitation. However, it seems important to apply these restrictions and to require the compatibility to which I have referred.

Section 217 of the 2003 Act applies to relevant orders which are defined in Section 196 of that Act. I was persuaded by my noble friend that it would be going over the top to check out the drafting of the Bill by tabling an amendment to that section, but I would be glad to know, if not today then before Report stage, whether Section 196 is being amended, and if it is not, whether it does not need to be amended. It refers to community orders, custody plus—which, of course, has gone—suspended sentences and intermittent custody orders.

Finally, I come to Amendment 12. We have referred to flexibility. I am unclear how supervision requirements can be varied during the fixed one-year term of supervision and my Amendment 12 is directed to the ability for the supervisor to deal with variation. I am particularly pleased to be able to support the lead amendment in this group tabled by the noble and learned Lord, Lord Woolf.

[Lord Judd]

I hope noble Lords will forgive me but, to make a clean breast of it, I came in when the noble and learned Lord, Lord Woolf, was in mid-stream. I just feel I cannot sit here without saying that I think this group of amendments is crucial. It puts into perspective what we are doing. Are we primarily about finding alternative means of punishment or are we primarily about rehabilitation? If we are about rehabilitation, it must be tailored to the individual concerned. If this in any way makes the rehabilitation to full, productive membership of society more difficult—and we all know that in many cases it is because people’s lives are in chaos that they end up in these situations—then we are not helping at all. These amendments are there to strengthen the intention of the Bill, if it really is about rehabilitation.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Hamwee and Lord Judd

Monday 12th March 2012 Lords Chamber

[Lord Judd]

My Lords, this debate relates to one that we had earlier, when there was that magnificent and to be expected contribution by the noble and learned Lord, Lord Woolf. Without saying everything that I said previously, I should like to underline that I do not believe that I am in a small minority. A significant number of people in this country are ashamed of what we are doing.

What kind of society do we want to be? Are we just cynically abandoning people to a system? Perhaps worse, are we really finding devious ways to get negative results which we want? That is what worries me. I am not convinced that our immigration policy operates with fairness. I believe that there is an underlying principle that we want to get rid of people; that we do not want people here; that we want to discourage people from coming.

Are we a country about justice or are we not? If we are a country about justice, those people, often in sad and desperate circumstances, are the very people whom, in the midst of economic pressures, and all the rest, we should be determined to protect.

I am very glad that there is this opportunity to air this matter. I am glad that concern spreads across the House into different political groups. All that I can say is that I am getting very depressed about the real motivation for some of this legislation.

[Baroness Hamwee]

My Lords, I support, in particular, Amendment 93, to which my noble friend Lord Thomas has spoken. No one has yet mentioned—although I suspect that the noble Lord, Lord Bach, may—concerns expressed by the Joint Committee on Human Rights about the extent of Clause 9 and whether it will be practically effective. One of its concerns was about the need for provision of services swiftly. Noble Lords will have read the report.

There is exceptional funding under the current scheme covered by guidance and, beyond that, a funding code. I was pleased to have been able to find that quickly through Google, if not through any government website. I am unclear, but fearful about just how closely Clause 9 and guidance which has not yet been written will reproduce what exists now.

I mentioned earlier today to the noble Lord, Lord McNally, that I was going to ask this question. He said that he would know the answer by now. I hope that that has transmitted itself through the ether or on paper to the noble and learned Lord who will respond. The guidance on exceptional funding refers to “significant wider public interest”; overwhelming importance to the client and other exceptional circumstances such that, without public funding by representation, it would be practically impossible for the client to bring or defend the proceedings; or that the lack of public funding would lead to obvious unfairness in the proceedings. I should have thought that that would amount to “in the interests of justice”. The terms “overwhelming importance to the client” and “wider public interest” are both defined: overwhelming importance to the client meaning a case which has exceptional importance beyond monetary value because it concerns the life, liberty or physical safety of the client or his or her family. I particularly note the reference to family, because in the immigration cases to which we have been referring, there is concern about family or a roof over their heads. Wider public interest could produce real benefits for individuals other than the client, and this particular case is an appropriate one in which to realise those benefits.

We have referred several times to concern about class actions and cohorts. I said on a previous day on Report, although probably not very clearly, that I was glad to know, pending seeing the detail, that people who have been victims of trafficking will be the subject of a government amendment, my noble and learned friend having said previously that they would come within Clause 9. However, if the Government are concerned that they might not come within Clause 9, then my concern is whether Clause 9 is too narrow. I would extend that concern to a very small group of people—victims of torture. Although not large in number, both these groups have substantial needs. All this may benefit from some detailed discussion outside the Chamber but I think that it is appropriate to raise it today. My question is about the extent of the change from the current arrangements.

UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011

Debate between Baroness Hamwee and Lord Judd

Thursday 7th July 2011 Lords Chamber

[Baroness Hamwee]

My Lords, I will not repeat the arguments that my noble friend made so powerfully. I have one point and one question for the Minister. My noble friend mentioned the validation pilot. Before hearing about that, it struck me that the problem may lie in a lack of clarity about the evidence required, and in poor initial investigation. Can the Minister say anything about that?

I will not talk about making rods for our own back, but as a country we owe it to those who are applying for visas to be as clear as possible about what is required. We have talked in many debates about immigration and the importance of warm feelings on the part of other countries towards this country—the reputational area. I will mention that in this context.

[Lord Judd]

I will follow on from that sentiment, but first I feel that it is important to congratulate the noble Lord, Lord Avebury, on raising this matter. In this House, there is sometimes—shall I say?—exaggerated and even slightly operatic flattery, but it is impossible to overdo our appreciation of the noble Lord. Throughout his parliamentary career, he has been a model of what disciplined, detailed scrutiny is about. We may have big and emotional debates and focus on sensational issues, but the noble Lord has demonstrated that for Parliament, doing scrutiny well requires a great deal of detailed application and thoroughness. He does not easily let points of principle escape his attention, and we should all be grateful to him.

The issues on which it would be important to hear comments from the Minister include retrospective legislation of any kind. I deprecate retrospective legislation because on the surface it always casts doubt on the principle of legal certainty. From that standpoint, there has to be a very special case for anything that involves retrospective legislation.

My second point is one that the noble Baroness has just emphasised, namely that we spend a lot of time preaching to the world about the absence of the rule of law. Immigration policy puts us in the front line of relationships with people from other countries. It is terribly important that in our policy we demonstrate an absolute commitment to the rule of law. There is a perception—we could debate this more fully on another occasion—that what we take as important in the general administration of law does not always apply to immigration; that the task of immigration is to say no and to get people to go home rather than to find the truth behind the application; and that it is not to put ourselves in a position to understand a person’s desperate plight and to determine that no stone shall be left unturned in ensuring that justice is fulfilled in their case. From that standpoint, what the noble Lord has put before us today is an applied illustration of why it is so important to take these matters seriously. I hope that the Minister will deal fully and convincingly with what he has put before us.

Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1 to 9) Order 2011

Debate between Baroness Hamwee and Lord Judd

Tuesday 8th March 2011 Lords Chamber

[Baroness Hamwee]

My Lords, the Minister started by giving the context for this order; my personal context falls into two parts. Like the noble Lord, Lord Ahmad of Wimbledon, the events of 7 July 2005 had an enormous impact on me personally, as much as on anyone who was not actually on one of the tube trains or on the bus. In addition, I am hugely aware of the capacity for restrictive measures to act as a recruiting sergeant for actions that seek to achieve destabilisation and that rack up calls for more measures that are contrary to our democratic principles. I have said that because I do not want what I will go on to say to be thought of as being a sort of hearts-and-flowers approach.

The points made in the report done by my noble friend Lord Macdonald of River Glaven and in the recent report by the Joint Committee on Human Rights are issues that I hope the Government take on board in the next stage of dealing with these matters. I hope that both reports will feed into the final design of the measures. Like others, I will not attempt to cover all the ground tonight, but I will make a number of points on which I personally feel particularly strongly.

Respecting the principles of the rule of law and, to the greatest extent possible, applying the normal principles and processes of the criminal law and the criminal justice system are to me, as to other noble Lords, fundamental and indeed essential. I mention simply these requirements: due process within the criminal justice system; judicial, not executive, action; special advocates—the noble Lord, Lord Judd, talked of how what they are required to do is alien to their professional training, but I suspect that it is alien to their instincts as well; the role of the DPP; and that the new measures should be a point on a road to prosecution rather than an end in themselves, which the Minister this evening has confirmed is the objective.

On the issue of curfew, as my noble friend’s report recommends—I will put it more crudely than he did—giving those who are suspected of terrorist activity enough rope to hang themselves is in itself very persuasive, quite apart from the other issues. On the objections to curfews, both in principle and in practice, I have to say that I have never been persuaded that ordering someone to stay at home for up to 16 hours a day would deter him if he was determined to commit terrorist actions. Like others, I am pleased to hear that relocations are to cease. Can the Minister tell us any more about that? A residence requirement, which I hope will mean a requirement just to have a normal residential address, is not a curfew and I hope that such a requirement will not come anywhere near being a curfew.

It is important that, as far as possible, the new measures allow the person subject to them, and, importantly, his family, to get on with life. I have read comments by someone who was subject to a control order saying that the arrangements for signing in at a police station could not have precluded work or study more, and that they made normal life completely impossible. Points have been made around the House about the Government reviewing the current orders now and relaxing the regime to one that they have already decided is appropriate. The noble Baroness, Lady Afshar, asked the Minister whether it is the case that a young man and his family have been relocated in only the past few days.

In evidence to the JCHR the Minister argued that, despite there being lower numbers of controlees compared with the past, resources for surveillance are not currently adequate to reduce numbers to the level that several noble Lords have described. That may be something that the independent reviewer will be able to consider. No doubt there will be a review before we get to the end of this process. Like others, I hope that there is wide consultation on the legislation and the draft emergency legislation, which the Government propose to create and keep on the stocks in case it is needed. Confining consultation on that to the Opposition on Privy Council terms would not garner the expertise that is available to the Government.

[Lord Judd]

On one point that the noble Baroness has made, would she not agree with me that the special emergency measures are absolutely a priority for scrutiny because of their very nature? The way that they will be used in an emergency means that it is terribly important that Parliament should look at them thoroughly and think through in advance what their implications will be.

[Baroness Hamwee]

I almost always agree with the noble Lord; I certainly do on this point. If they are to be introduced as a matter of urgency—no doubt in a climate in which calm judgment will be difficult—that in itself argues for calmer judgment at an earlier point.

The current system is hardly perfect. I recently met someone who had been controlled, although the control order had been quashed. He said that all he understood of the reasons for the order was that he had been assessed as having been trained in countersurveillance. What techniques did he have? He was on the top deck of a bus with his son and turned his back on the CCTV camera. The Minister has anticipated this, but I have recounted the tale because it is part of what we are considering. It indicates how we need to move forward. The controlee does not want his name to be mentioned. I found his story and the comments of Dr Michael Korzinski—the psychologist and clinical director of the Helen Bamber Foundation, whose client he was—profoundly affecting. He talked about the practical, legal, health, emotional and relationship issues and the impact on his family. Dr Korzinski talked about how social isolation, ostracism and stigma affect the brain, saying that his client “was essentially driven mad”. I understand from him that there has been no mechanism for oversight or review of the impact of the orders on the mental and physical health of the individuals and their families. People who have been seen at the Helen Bamber Foundation have developed serious mental health problems as a direct consequence of control orders.

It occurs to me that the role of the independent reviewer, with access to an expert panel of mental health and other relevant professionals, could be extended to ensure proper monitoring and review in this regard as well as others. We must be very careful how we treat individuals and how—here I think that I echo the noble Lord, Lord Judd, almost word for word—we protect our society from becoming a society which we as citizens would not in our turn wish to support.