Immigration Control (Gross Human Rights Abuses) Bill [HL]

Baroness Kennedy of Shaws Excerpts

2nd reading (Hansard): House of Lords
Friday 15th December 2017 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

That the Bill be now read a second time.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, it is impossible to embark on the Second Reading of this Bill without explaining briefly the shocking backdrop to this effort to create legislation which will bar entry to this country to people who are gross abusers of human rights.

Sergei Magnitsky was a Russian lawyer who acted for William Browder and his company Hermitage Capital Management. Bill Browder’s refusal to bow to the demands of Mr Putin brought state attention to his door and episodes of harassment and intimidation followed. In June and October 2008 Sergei Magnitsky testified before the public investigative committee in Moscow against corrupt officials who were involved in the corporate raid on Hermitage’s offices there which had taken place the previous year.

For having the temerity to challenge the power of the Russian state, Sergei Magnitsky was arrested and detained on trumped-up charges. The conditions in which he was held in pre-trial detention were horrendous: freezing cells, open sewage running underfoot and beds in such short supply that prisoners were forced to sleep in them in shifts. Sergei Magnitsky became very ill but was denied proper medical treatment. His family’s entreaties were ignored. He was kept permanently handcuffed and regularly struck with rubber truncheons. He was eventually found dead in his cell with injuries which were consistent with a final and hellish beating. It beggars belief that four years after his death he was tried—I suppose they would call it a trial in your absence—and convicted, having been posthumously prosecuted by the Russian state. The authoritarianism of Putin’s state reaches beyond the grave. Of course, what it was really doing was seeking to justify the cruelty that had been exacted by it against a lawyer who dared to stand up for the rule of law.

Those who were responsible for this catalogue of abuse have since been honoured by the Russian state and have hugely enriched themselves through fraud, using Hermitage as a cover. Sergei’s death left a mother, a wife and two children to grieve, as well as a devoted friend and client who was not going to take what happened lying down. Bill Browder is the only financier and banker I know who has turned into a dedicated, full-on, full-time human rights activist. Since Sergei’s death William Browder has worked tirelessly to secure justice. He has campaigned against the impunity which is enjoyed by the officials who committed those gross acts of inhumanity. Knowing that Russia under Putin will never prosecute those who jailed, persecuted and ultimately killed Sergei, Browder has lobbied and campaigned and urged other nations to deny sanctuary to his killers and to create laws which will deny those criminals the enjoyment of travel, the use of ill-gotten gains and the anonymity that which allows them to escape ignominy.

So far, he has persuaded the United States and Canadian Governments to legislate, and it is time that we did this, too. This is about creating a Magnitsky law. Human rights violators like those who murdered Magnitsky exist in other nations, too. In Sudan, there are generals like Salah Gosh, who was identified by a UN panel of experts as an individual who should be subject to sanctions because of his role in the Darfur atrocities. There is another general, Major General Abdel Rahim Mohammed Hussein, who has outstanding warrants from the International Criminal Court for his role in crimes of inhumanity and war crimes, all relating to Darfur.

In the Congo we have seen grievous atrocities and the mass rape of women. In parts of the Middle East, too, criminals walk free and come regularly to this country. The generals in Myanmar also come to mind at this time. The United Nations Commission on Human Rights can identify and provide evidence on these violators of human rights. They should not be able to come here, sink their money into expensive properties, have their operations in our private hospitals, send their children to expensive private schools and live in our midst with impunity. Assets can now be frozen. This Bill is to deny them visas.

The US and Canadian Magnitsky Acts contain three distinctive elements that provide a template to be replicated the world over: asset freezes, travel bans and the explicit naming of the individuals whose conduct has led the Government to sanction them. At present, the UK has only the asset-freezing aspect of a Magnitsky law. This was introduced when the Criminal Finances Act, which had a “Magnitsky amendment” attached to it, received Royal Assent in April 2017—this year—having passed through Parliament in the preceding months. This amendment allows the Government to apply to the High Court to have the assets of suspected human rights violators frozen. This leaves the United Kingdom lacking a provision for travel bans and explicit naming procedures.

Under the Immigration Rules as presently constituted, the Home Secretary has a personal, non-statutory power to issue travel bans to individuals on the basis that their exclusion from the United Kingdom is conducive to the public good. Section 3(5)(a) of the Immigration Act 1971 also confers upon the Home Secretary discretionary power to deport anyone if it is deemed to be,

“conducive to the public good”.

I would like us to ask ourselves how often those powers have been used against human rights abusers. However, the current powers allow the Home Secretary to prevent the names of those who have been banned being published. The existence of a specific statutory provision—that is what is being sought here—aimed at sanctioning those involved in human rights abuses will both focus the attention of those applying that law and introduce greater transparency into the exercise of the power to impose visa bans.

The Foreign Affairs Committee published a report in 2011 on the FCO’s human rights work which asserted the value of publicising the names of those who are denied visas to enter the United Kingdom as a means of drawing attention to the UK’s determination to uphold high standards of human rights. Only a few days ago in this Chamber, I participated in a debate about human rights subsequent to Brexit, and we were given guarantees by the Minister from the Dispatch Box that human rights were a central consideration of this Government. Here is a way in which this can be expressed.

Dominic Raab, a Member of Parliament, argued cogently in a Commons debate in February 2015 that the introduction of specific statutory powers would give the public the right to know which individuals were being banned and which were not and would help travel bans act as an effective deterrent to others. We would soon see a chilling effect on the movement of people if they thought that there were going to be problems as they sought entry into this country. The Immigration Control (Gross Human Rights Abuses) Bill would introduce two missing elements of a fully fledged Magnitsky law: explicit powers to ban from the UK those responsible for, and complicit in, gross human rights violations; and transparent naming requirements for those who are banned.

Following the successful campaigns to pass Magnitsky Acts in the United States and Canada, the Russian Government have pursued William Browder through manifold routes, including abuse of Interpol’s international co-operation mechanisms by applying for Red Notice arrest warrants to secure his arrest and extradition to Russia. There have been five separate applications for Mr Browder’s arrest via these means, all of which have been rejected by Interpol.

But what this tells us is that Magnitsky laws are working. They are doing their job. That is why Russia is so determined to go after Bill Browder. One of the great complaints made about international human rights law is that it has insufficient teeth. This is how you give teeth to our international commitments. I strongly commend this Bill to the House and beg to move.

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[Baroness Kennedy of The Shaws]

I thank everyone who has participated in the debate in support of this Bill. Until the last speaker, we were united in saying that there is a need for it. This is not a question of simply protecting our borders from unpleasant persons; it is about sending a message to the world that there is no impunity for those who commit crimes of inhumanity. It is about making a statement to the world about our views with regard to human rights and those who violate them. I greatly regret that the Government do not see the potency of having such a Bill on the statute book.

I thank all those who have supported the purpose of this Bill. I feel privileged to be in this House, in particular because I have friends all around the Chamber. They sit on all the Benches and just now I can see them smiling at me, and I am lucky to have them. My friendships with people in this House are sometimes peppered with political differences on certain subjects, but we still enjoy great friendship. I want to make it known to the world that noble Lords are not speaking today because of that friendship but because one of the things we share is our concern for the rule of law and for justice. That is what has brought us all together today in support of the Bill. It is to say that justice matters and that it is important that we in the United Kingdom take a stance on human rights abuses around the world—and that, when we know they have happened, we should refuse entry to those who have been party to such egregious crimes. It is shaming on the Government that they are not prepared to take steps on this.

Of course I anticipated that it would be said that powers are already available to the Home Secretary, but we know that they are not being used. The noble Lord, Lord Trimble, referred to the failures on that front. It is not enough to talk about the fact that we are now introducing legislation to deal with those who commit fraud and so on because here we are talking about people who are slaughtering others and are prepared to kill in order to maintain their power. They are people who are prepared to rape and to sanction rape by others. That is what is so disgraceful about the failure of the Government to make clear to the world what the message is by having legislation of this kind.

I was very interested to hear about the kleptocracy tour described by the noble Baroness, Lady Falkner. Perhaps the noble Baroness will have to organise a bus to take people from this House around London in order to point out how dark money is infecting our city and our nation. People are coming here because they know that they can enjoy impunity for the crimes they have committed. I say to the Government that we should be ashamed; I say, “Poor show, Government, that you are not prepared to take this step”.

As for the business of publishing names, the argument for doing so is that those who have not been named would be put on alert. They would think immediately, “Am I going to be on that list tomorrow—or in a month’s time?”. It is unpersuasive to say that that is a reason for not publishing. We are providing cover for people with whom unfortunately we do business for reasons that are still not good enough. They have disgraceful pasts that they are covering up.

I thank the noble and learned Lord, Lord Brown, who is a truly great lawyer, for his intervention. He raised the important issue of the standard of proof. What I referred to in my speech was that there is an independent United Nations panel that looks at those who have committed crimes and applies careful standards. Drawing up a list of those the panel considers have committed human rights breaches is not done merely on suspicion. We can also look to the International Criminal Court, which again draws up lists as part of its investigations. There are ways of doing this, but I accept that if, as I hope, we take the Bill further, we can look at ways to perfect this through amendments tabled in Committee.

I want to make it very clear to the Government that there is no suggestion of this being used against all citizens of a country because it falsely claims to be a democracy. That is not the purpose of the Bill. The purpose is to deal with the leadership in these places—people who sanction this kind of egregious crime. It in no way deals with people who are victims because they happen to live in a country where the leadership behaves in such terrible ways.

Mention was made by the noble and learned Lord, Lord Brown, of the possibility of something being done in the Sanctions and Anti-Money Laundering Bill. I would urge that on the Government; it may be that they can find some part of that Bill that could be expanded to cover this—although I suspect that there will be unwillingness to do so. I have absolutely no doubt that this Bill can be perfected in Committee, but the purpose today is to say that there should be a Bill—one that makes it very clear to the world that we support the Magnitsky Acts that have come into being in the United States and Canada—not countries that casually introduce such legislation. The world needs to take steps to prevent such impunity.

Finally, I want to reiterate what was said by the noble Lord, Lord Trimble: we have seen that this is working. It has been a long time in coming. Over the years, we have talked about the ways in which international law can be an expression of good will but is often unenforceable; it is often impossible to implement our good intentions. This Bill is a way of doing that and a way of sending a message around the world: “You cannot come here. You will not be able to come here. You will not be able to go to the United States or Canada or Latvia or other nations that have signed up to this”. I think that it will spread. We want to be in there at the beginning, surely.

I thank noble Lords for supporting me and I beg to move.

Bill read a second time and committed to a Committee of the Whole House.

Brexit: Acquired Rights (EUC Report)

Baroness Kennedy of Shaws Excerpts

Tuesday 4th July 2017 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

To move that this House takes note of the Report from the European Union Committee Brexit: acquired rights (10th Report, Session 2016–17, HL Paper 82).

[Baroness Kennedy of The Shaws (Lab)]

My Lords, in the immediate aftermath of the referendum, the European Union Justice Sub-Committee, which I chair, embarked on an inquiry into one of the most pressing issues to arise: what happens to the rights of European Union citizens who live in the UK, and what happens to the rights of UK citizens living in other parts of Europe? Being part of the European Union means that people can live, work, study and set up businesses in a member state of their choosing. Millions have chosen to do that. While the report we published did not deal with commercial rights, many of the legal principles applied as much to companies as to individuals.

Before the referendum, there was a lot of speculation and claims that people would be protected by the doctrine of acquired rights in international law, so that they could just carry on as before. This turned out to be what nowadays is called “fake news”. The evidence we heard was clear that this was a red herring and it distracted from the very real problems posed for people by our withdrawal. International law provides no meaningful protection. The committee received anguished letters from families, and it is family issues that will be most testing for the Government. This is about people and their lives. When we talk about trading, at the end of the day its purpose is to enhance lives. In the end, it is always about human beings.

We recommended that the UK Government should take unilateral action. We felt that that was the moral thing to do and that it should have been done before we ever entered into negotiations. We urged that upon the Government, but it was not accepted. The Government’s response was that this might leave at risk our citizens living in other parts of the European Union. Unfortunately, the response seemed to be, “If we can’t help everybody, we’ll just help nobody”, so it was left until now, and it is still looking very difficult to resolve.

We accepted that the much-vilified European Convention on Human Rights might provide some protection, particularly against deportation. It would also protect against loss of possessions, physical or intangible, such as commercial rights, which are currently protected by European Union law. Similarly, bilateral investment treaties might provide limited safeguards for investors from losing European Union rights, but only when to do so does not clash with European Union law.

However, it become very clear to us that the thousands of rights that derive from European Union law are simply not replicated in other instruments, and there would be a real deficit of rights without an agreement to protect. Professor Sionaidh Douglas-Scott and other very distinguished legal experts gave evidence before us that certain European Union rights could be protected only within the withdrawal agreement itself. That was the inescapable consequence of the evidence we had. The Government, it seems, are coming to agree. Any agreement on citizens’ rights will end up being binding under international law. Many of our British folk living in other parts of the European Union believe that the offer being put on the table by the European Union 27 is a more comprehensive offer, and we should listen to what they are telling us.

We recommend that the rights safeguarded in any withdrawal agreement should be frozen at the date of Brexit. We emphasised that the majority of such rights would be reciprocal, with parallel European Union rights, and it was therefore necessary that they be applied consistently with European Union rights. In other words, there would have to be a level playing field. That means that as the parallel European Union rights evolve over time, so it is likely that UK law will have to evolve with them.

The 27 are urging that the ultimate overseer should be the European Court of Justice. That is the question that we have to keep asking: who has the last word? We will come up against that question time and time again in the course of these negotiations over all manner of rights. When you have cross-border relationships—whether they are trading relationships, relationships through marriage or relationships on consumer rights—you will end up having to ask that question. Who has the last word? Who will be the ultimate arbiter?

I am not alone, nor were my colleagues on the committee, in being concerned about this matter, which seemed to be neglected by having a line drawn through any possibility of our having anything to do with a supranational court. We made it clear that a mechanism could be developed to ensure that UK law takes account of developments in EU law in the jurisprudence of the European Court of Justice, and that EU law takes account of relevant developments in UK law in the same way, so that it is reciprocal. That is what happens in the EEA under EFTA. Some sort of court has to exist. The EU 27 have made their offer, and the Government have now made a corresponding offer, but questions remain to be settled. There are serious and important questions.

I remind this House of something that has come from the Bar Council. Lawyers who have been looking at this emphasise:

“Rights are not worth much if they cannot be enforced”.


So the issue is very much about enforcement. They state:

“Clear and useable enforcement mechanisms are essential to the rule of law. Certainty is currently provided by the interpretive role of the”,


European Court of Justice,

“and to reject this would deprive EU citizens in the UK of that safeguard”.

They point out that you have to deal with the problem that can arise when someone says, “The courts in Britain are not protecting my rights as a European”, and that there may have to be resolution somewhere else. In the same way, a British person living in Spain may feel that the Spanish courts are not doing the right thing by them with regard to their rights and will want to go to a court beyond Spain—perhaps to the European Court or some such court, depending on what we arrange. The Government have to be mindful of that.

A number of questions still arise and I ask the Minister to respond to them. Is settled status for life? That is a question being asked by Europeans in Britain and our citizens living in other parts of Europe. Will European Union nationals lose their right to vote? If they are given settled status surely they should be allowed to vote, not only in local and European elections but also in our general elections if they live here and pay taxes. Will they be able to bring in spouses without meeting the UK’s minimum income threshold requirement? Will European Union citizens have the same rights as UK citizens, where families, including parents, dependants, adults and children, can move from one country to another? As my mother could come down from Scotland and live with me, or children I may have had before who lived in Scotland or in Ireland could come and join us, can a settled French family bring over their granny to join them? Could a woman who has remarried in Britain and has been living here for 15 years bring over her 17 year-old son she had previously when she was living in Germany with her German first husband to join her here at this stage? If he was shared between the two of them over the years and spent his summer vacations here, could he come to university here? What are the family reunification rights?

The same question will be raised by British people who live in other parts of Europe. Will they have reunification rights with regard to family? What happens to EU nationals married to Britons who are not exercising EU treaty rights, such as housewives who are not working, not setting up companies, but doing important work in rearing children? Will they get settled status too or will they have to apply under UK immigration rules, requiring therefore another five years’ spouse status before qualifying for indefinite leave to remain? Will rights to pensions, healthcare, work, rights of establishment and mutual recognition of qualifications all be safeguarded?

Can we ring-fence a definitive agreement soon in advance of other parts of our negotiations? We keep hearing that it is not over until it is over but some people want it to be over and want to know now what the position will be because uncertainty is so painful. These are deeply serious matters because, in the end, it is about human lives.

The issues of contention will be resolved initially by immigration departments—we know this—but will end up being dealt with by poorly trained officials making significant decisions against tight deadlines, and the risk of endless litigation is high. More than 3 million people in Britain alone will be making applications for this special status. What will we do about administering those applications in a fair and just way? Our relations with the rest of Europe and our neighbours abroad will be deeply damaged if we get this wrong. Getting it right from the outset is vital and it should be done in a spirit of generosity, not pettifogging strictures to keep people out. I urge the Government to be welcoming and to make any system simple and clear, and to give people certainty soon.

I hope the Government will welcome our report. We have received no response from them and I am looking forward to what the Minister will say tonight.

--- Later in debate ---

[Baroness Williams of Trafford]

I will.

[Baroness Kennedy of The Shaws]

I want to ask the noble Baroness a similar question. I raised an issue that arose from a letter that the committee received. It involves a family where an Englishman is married to an Italian wife, his wife is an only child and her parents are elderly and in Italy. It is expected that, when one of her parents—the in-laws—dies, the lone in-law is allowed to come here, but it may not be within the next two years. What happens in that situation? Will it be possible for an in-law left alone in another country in Europe to be able to join their daughter or son to live here?

[Lord Kennedy of Southwark]

Can I possibly ask a question and then we can get it all out in one go? The noble Baroness just said that families can apply for settled status. Is applying for settled status a formality, or could it be refused?

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[Baroness Williams of Trafford]

I will write to the noble Lord on the absolute detail about whether it could be refused. I am sure there will be circumstances under which it could be refused, and I can imagine the sort of circumstances that we might be talking about. As I have said, we intend settled status to be a very simple process, literally perhaps proving, perhaps with a gas bill or a rental agreement, that you are actually here in the UK. I will write to the noble Lord on the circumstances under which it might be refused.

I was about to come on to the noble Baroness’s question about the ability of those currently resident in the UK to bring in family members after we leave the EU, such as the elderly member of that family. It is important to note that they will have the opportunity to do so either by applying under post-exit immigration arrangements for EU citizens who arrive after the specified date or by applying under the same rules as those joining British citizens. I hope that answers the question.

[Baroness Kennedy of The Shaws]

I am sorry, but I have just one more point. It is another letter from someone who came here as a European and bought a property here but because of his work is now working abroad. Is that continuing tie of owning a property in Britain enough to establish his entitlement to apply for settled status?

[Baroness Williams of Trafford]

Can I write to the noble Baroness on that as well as I do not want to give her duff information either?

The noble Baroness, Lady Ludford, asked about the income threshold to qualify for settled status. EU nationals will not have to meet the income threshold. Further details on the eligibility criteria will be set out in due course, but the policy document sets out what the essential conditions will be—an applicant who arrived before the cut-off date and has been resident for five years and has had an assessment of conduct and criminality. That goes to my point, which I will clarify with the noble Lord, about refusal of settled status.

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[Baroness Kennedy of The Shaws]

I thank everyone who has participated in this important debate. It has emphasised that this is not an easy matter and that reaching an agreement is vital because people want certainty—people from other parts of Europe who are living in this country, contributing hugely to our society and enriching our lives, and our citizens living in other parts of Europe who are enjoying and taking delight in having lives there. We owe it to all those people to resolve this matter generously and speedily, and in a way that will not be expensive but recognises that rights need courts. There is no denigration of our judges in saying that at the end of the day people will ask, “Where is there a court beyond?”, if they feel that our nation or the nation that someone is living in in Europe is not meeting their rights. I am afraid that the Government will have to give careful thought to how to resolve that very difficult issue.

I thank everyone, including the Minister, who has kindly responded to this debate.

Motion agreed.

Policing and Crime Bill

Baroness Kennedy of Shaws Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Campbell-Savours (Lab)]

My Lords, I have spoken about this issue on a number of occasions over the years, most recently in Committee on this Bill. I start where I left off on the last occasion, when I quoted the case of a woman who rifles through the dustbin of a reputable consultant, finds a used condom, smears the contents on herself and makes a false allegation of rape. As the accused has no right to anonymity, he is suspended as a consultant psychiatrist, hauled before the GMC, shunned by his friends, attacked on the internet, loses £100,000 that was part of his income, and is totally discredited in his own community. A life destroyed as indeed was the case made by Cliff Richard when he recently attended a meeting in the House.

I do not want to do a rerun of the speech I gave on a previous occasion. Suffice to say that the noble Lord, Lord Paddick, on that occasion and on this occasion, as a former serving police officer, in my view—and I say to others to read what he said in Committee—made the case completely. My contribution on that occasion was a modest add-on, as indeed it will be today. It will be about the political background to this matter.

Over the years, the resistance has essentially been in the Commons, but the Commons membership has now changed. Anyone who knows procedure in the Commons will know the position there is very different from in here. One can table an amendment in here and have it heard; in the Commons that is not the case. It has to go through two obstacles. First, it might not be selected by Mr Speaker, because there is a selection of amendments in the Commons. Secondly, it might not be heard because of the procedural changes that were made at the beginning of this decade in the use of the guillotine and timetabling in the House of Commons. I am arguing tonight that we please give the Commons the opportunity to consider again this matter, which it has not been able to consider for some years.

What support do we have for the change? The fifth report of the Home Affairs Select Committee in 2003 unanimously said, in the Commons, that,

“we believe that sex crimes do fall ‘within an entirely different order’ to most other crimes. In our view, the stigma that attaches to sexual offences … is enormous and the accusation alone can be devastating. If the accused is never charged, there is no possibility of the individual being publicly vindicated by an acquittal”.

This all-party Select Committee in the House of Commons in 2003 went on to recommend unanimously,

“that the anonymity of the accused be protected only for a limited period between allegation and charge”.

Then in 2003 an amendment was moved by Lord Ackner, whom some Members may recall. I understand that he was a prominent Silk, much called on nationally for his services, and a judge. I want to read the wording of his amendment in 2003 on “Anonymity of defendant in rape etc. cases”:

“The defendant in rape etc. cases shall enjoy the same right to anonymity as is enjoyed by the complainant”.

In other words, he was arguing for anonymity not just at charge nor even to conviction but beyond, in the event that a person was not found guilty. I have the Division list here. When that matter was brought before this House, all those on the Conservative Benches—who I am told are being whipped today; I hope that is not the case—voted in favour of the Ackner amendment for anonymity through the whole process, which would mean that, if someone was not convicted, they would retain their anonymity and would be identified only in the event of a successful conviction.

My noble and learned friend Lord Falconer argued during the same Bill that pre-charge and accused persons should not be named. He supported ACPO guidance. That is one of the problems: the guidance does not work. That is why we are standing here today. If the current guidance worked, there would be no need for an amendment. It does not work. My noble friend Lady Kennedy of The Shaws, who is unfortunately—

[Baroness Kennedy of The Shaws (Lab)]

I am here.

[Lord Campbell-Savours]

Oh, she is here. What my noble friend said is very interesting, because she is one of the great lawyers on our side specialising in human rights. Perhaps I may draw attention to her view at the time on anonymity right through to conviction. She said:

“I strongly urge that this House does not consider allowing anonymity for anyone who is charged with rape. But the Government might look sensitively at the issue of whether someone should be covered with anonymity until the point of being charged … The reason that women will come forward when they see that a man has been charged with rape is because they are confident that they will not be so readily disbelieved if he is clearly doing it to other women”.—[Official Report, 2/6/03; col. 1085-6.]

It is quite clear that, at that time, my noble friend at least had some sympathy for the principle behind today’s amendment.

The former Prime Minister, David Cameron, told Parliament that he believed that,

“there was a case for saying that between arrest and charge there was a case for anonymity”.

“I think”, he went on to say,

“this does represent a good way forward”.—[Official Report, Commons, 2/6/10; col. 428.]

My right honourable friend Caroline Flint, speaking on behalf of the Labour Party in the House of Commons, said,

“the serial nature of the crime that we are talking about is important, because when a crime is reported and people hear the name of the person who has been charged, they feel confident to come forward and stand by the victims”.—[Official Report, Commons, 7/6/10; col. 150.]

Even there, from a spokesman from the Labour Front Bench in the Commons, is an admission that, post-charge, people do come forward. I am not claiming that she would support me on this amendment, but I ask the House to judge her view on the basis of the record to which I just referred.

The Home Affairs Select Committee report in 2014 stated:

“We recommend that the … right to anonymity should also apply to the person accused of the crime, unless and until they are charged with an offence”.

In other words, for the second time the Home Affairs Select Committee of the House of Commons, only two years ago, made the same recommendation—again unanimous.

We then have Sir Bernard Hogan-Howe, a practitioner in the field dealing with these matters. He too says he supports pre-charge anonymity.

Finally, there is the letter of 24 March last year from Theresa May, who is now the Prime Minister, to Keith Vaz, which says:

“The Government accepts the committee’s conclusion”—

that is, the report I just referred to, supporting pre-charge anonymity—

“that there should, in general, be a right to anonymity before the point of charge, but there will be circumstances in which the public interest means that an arrested suspect should be named”.

All these assurances are diluted by the guidance being given to police officers, because that guidance does not work. It is about time that we stood up in Parliament, recognised the deficiency in the way the law is operating and put on the statute book something that requires police officers to operate in a particular way. In this case, as the noble Lord, Lord Paddick, suggests in his amendment, they should at least be required to apply to a judge for permission to release a name.

The product of all this law as it currently exists, and the present arrangements, is that reputations are undermined, families are discredited—as I said in my contribution in Committee—there are suicides, public lives and reputations are destroyed, and individuals are sacked from their employment. I have a desk full of letters written over the last 15 years by men all over the country—many of them in prisons; we do not know what happened in those particular cases—objecting to the way the law works.

I implore the House: please give the House of Commons the opportunity to reconsider this matter. If I lose in the Commons, fair enough—but at least give the Commons the opportunity. It is in our hands. If we vote for the amendment tonight, the Commons will reconsider the matter.

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[Viscount Hailsham (Con)]

The noble Lord ended his remarks by saying that a grave injustice is caused to those when you have publicity of the kind identified, and I entirely agree. It has been very well illustrated by what my noble friends Lord Lamont and Lord Deben said about Lord Bramall and Lord Brittan. I was Lord Brittan’s PPS in the other place and I know how deeply distressing the allegations were. That also applies to Harvey Proctor; the allegations against him were wholly grotesque and must be immensely damaging. So there really is an underlying mischief of a very serious kind. My noble friend Lord Marlesford and the noble Lord, Lord Paddick, are much to be congratulated on bringing forward these amendments.

If I may say to the noble and learned Lord, Lord Morris of Aberavon, my former pair for a short period of time in the other place, he is absolutely right—the problem will not go away. That means that we have an opportunity to address it. It is a continuing problem for this reason: usually the information is disclosed by a police officer, usually for money. That is not going to go away unless we intervene by statute. The truth always is that, if you give power to officials or opportunities to officials, on occasion they will abuse it. The noble Lord, Lord Lester of Herne Hill, rightly asked about the safeguards. Although I look forward very much to my noble friend’s contribution from the Front Bench, I do not think for one moment that there are effective safeguards outside statute.

I turn briefly to the amendment proposed by my noble friend Lord Marlesford, Amendment 182. I agree with one part of it very robustly. His is much more far-reaching than is the amendment proposed by the noble Lord, Lord Paddick, because it applies to all offences—and I think that he is right about that. Allegations of fraud can achieve very high publicity and be immensely damaging, so I have a great deal of sympathy with the scope of Amendment 182. Where I have greater doubt is with two other parts of the amendment. With respect to the accused person, there is no provision for him or her to consent to publicity as there is in the amendment proposed by the noble Lord. Secondly, I am uncomfortable about the concept of the magistrates’ court being the court in which representations as to public interest are to be determined. I am in favour very much of what the noble Lord says with regard to the judge of the Crown Court.

The noble Lord, Lord Pannick, is a much more distinguished lawyer than I am ever going to be, but there are two points that I would make. First, he says that there may be occasions when an accused person will not be charged because witnesses will not come forward, absent publicity. There is truth in that, but then you have to look at the proportionality of the whole. Yes, there may be one or two such cases, but for an awful lot of cases great injustice will be done to people against whom allegations are made that are wholly unfounded. Finally, the noble Lord suggests that the judges in chambers will not be able to assess and determine the relevant arguments and whether there is a public interest in disclosure. There may be some force in that, but I think not much at the end of the day, because judges in chambers and Crown Court judges are pretty experienced about this sort of thing. They will have to consider quite frequently public interest immunity certificates which have very broad quality concerns attached to them. So in applying the principle of proportionality, the argument advanced by the noble Lord, Lord Pannick, is wrong in that respect. I make one rider: I hope that the rules of the court which will doubtless be introduced if the amendment is passed will make provision for the person against whom the allegations are made to have the opportunity to make representations to the Crown Court judge.

With respect to my noble friend Lord Marlesford, I shall not support his amendment, should he seek your Lordships’ opinion—but, unless my noble friend Lady Williams surprises me with her argumentation, I shall support the amendment proposed by the noble Lord, Lord Paddick.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I am glad I arrived in time to hear my noble friend Lord Campbell-Savours praying me in aid of this amendment, because I do indeed support it. That may surprise many people, because I am ardently an exponent of justice for women and keen to see that the system is alert to the ways in which women often are failed by it. I have written about this for all my professional life of 40 years in the courts. I take this position and I have not changed, my noble friend will be happy to know.

At the time, back in 2003, the point that I was making in opposing Lord Ackner’s amendment was that Lord Ackner was taking issue with the fact that women got anonymity so why should not poor men charged with rape get anonymity? He suggested having equality. It was an argument that was, I am afraid, familiar to me from old judges: “You want equality, Ms Kennedy, we will give you equality”. It did not take account of the fact that the lives of women in society are so often different from those of men. With rape, particularly, women often just could not face coming before the courts to testify against the person who had raped and violated them. I do not have to rehearse in this House the whole baggage around rape: we know why women have been handicapped in coming forward and why the statistics are so low. We know the difficulty of dealing with things that happen in private, but we also know the ways in which women’s whole lives would be affected by the sense of dishonour attached to rape, and for many women this is still the case. Many more women are becoming brave and saying they do not need anonymity but it was given to women in the 1970s to try to redress the balance of law’s historical failure. It recognised something that I want to say very slowly to this House: treating as equal those who are not equal does not create equality.

We do justice by looking beyond the courtroom doors and knowing what really goes on in society. For that reason, we introduced anonymity into the system when that flew in the face of principle. We do not want anonymity in our courts. We want people to stand there and accuse, to face their accuser and to hear what the evidence is. We want justice to be open and for the public to hear it. But the decision was made to give anonymity to women to encourage them to come forward when these terrible events had happened to them. Lord Ackner advocated—and he found some friends in the House—that we had equality in 2003 and should treat everybody equally. But if we had equality, we would not still be hearing women arguing for equal pay and about domestic violence and violence towards women.

You cannot give total anonymity to an accused all the way through a trial because we know that there are cases where people come forward at the right point and say, “This happened to me, too”. If the Savile case and others have taught us anything it is precisely that. However, you do not solve one injustice by visiting another injustice on people. That is why I feel very strongly that the police should not disclose names until the point of charging. We have here a rather unpleasant alchemy of the police and media coming together. I have worked on many cases where a tip-off was given by police to the press who were then standing outside the police station to photograph people as they exited. It never comes to a charge, but the accusation has already been made. Why does that happen, you may ask yourself? In the old days it used to be because the police officer had been promised a drink or a case of whisky would be sent round at Christmas from the local newspaper or a more major national one. I am afraid it could take even more unpleasant forms than the drink at Christmas.

I remind the House that not long ago a woman called Rebekah Brooks—then Rebekah Wade—gave evidence to a Select Committee about the amount of money paid by her newspaper to police officers for precisely the kind of information we have been talking about, which blights people’s lives. From Cliff Richard to Paul Gambaccini, a whole set of people have suffered the consequences of this kind of publicity. The strength of this amendment is that it is not saying that the door is closed. Many women are assisted by the fact that other women will ultimately come forward because they hear that a charge has at last been brought against somebody. They are not standing alone and then they have courage. However, you also have to prevent other injustices. That is why you protect people by giving them the cover of anonymity until the point of charging. Then, and only then, should a name be put into the public domain.

How do we deal with police misbehaviour? I know there are noble Lords who do not think the police ever misbehave: they do. Happily, it does not happen as often as many people think but it is too often and police misbehaviour is behind most of this kind of publicity. If the standing order is not working and the principles are not being adhered to, how can you give teeth to preventing police officers doing this? The only way is if they face sacking or prosecution if they are discovered to have interfered with due process. We must have stronger responses to police misbehaviour of this kind.

Istanbul Convention

Baroness Kennedy of Shaws Excerpts

Thursday 24th November 2016 Lords Chamber

[Baroness Williams of Trafford]

I most certainly will. Indeed, on any of the specific questions on this matter that I have not been able to answer, I will write to noble Lords.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, can I come to the assistance of the Minister and say that we have some of the best policies on domestic violence—I cannot pretend that we have solved the problem—and have made greater headway on law here in Britain than most other parts of Europe? I therefore think we have a role to play in expanding our experience and bringing it to places where we can do great good. One reason for ratifying the treaty is to make use of our expertise in a field in which we certainly have some.

[Baroness Williams of Trafford]

The noble Baroness is absolutely right: we are world leaders in certain areas such as tackling violence against women and girls, domestic violence and stalking, and I hope other countries will follow.

National Identity Cards

Baroness Kennedy of Shaws Excerpts

Tuesday 5th July 2016 Lords Chamber

[Lord Keen of Elie]

It is tragic to hear of victims of such intimidation and control, but I would observe that those who are the subject of such control are not likely to have access to their identity card any more than they do to their passport.

[Baroness Kennedy of The Shaws (Lab)]

We have heard in the course of today’s debate about the rise in attacks against minorities. One thing that concerned minorities was that if you introduced an identity card it would open the door to harassment of people who speak a foreign tongue or with an accent, or you might have victimisation of people with a different colour of skin. There was a sense in which ID cards would create those sorts of problems for people from minorities. Does my noble friend agree that the answer to the issue she raised is to have better facilities for people who experience domestic violence and oppression within their communities and from their partners? That is the answer, not identity cards.

[Lord Keen of Elie]

The Government certainly agree that the answer is not the introduction of identity cards.

Investigatory Powers Bill

Baroness Kennedy of Shaws Excerpts

Monday 27th June 2016 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I have to say that I have had one of the greatest surprises in the course of this debate that I have ever had in this House. That was hearing my noble friend Lord Blunkett express humility—humility in relation to his efforts to deal with terrorism and with the efforts of this House to call him to book when he seemed to be going over the line. I did not quite recognise whether there was regret, but certainly he seemed to acknowledge that scrutiny of the efforts to deal with serious crime and terrorism is a very important thing to take place within our parliamentary system.

I welcome the Bill because it places the work of the intelligence and security agencies within a robust legal framework. As others know, I have spent a large part of my professional life dealing with high-level security cases, often involving terrorism, such as the transatlantic bomb plot not that long ago, which was mentioned by the noble Lord, Lord Reid. These were serious cases in which new technology was used by those who stood trial and where being able to intercept was clearly vital to the interests, safety and security of British citizens.

The noble Lord, Lord Rooker, suggested that the RUSI panel’s 10 tests might in fact be placed inside a pamphlet or a paper by the Government to show how the Bill complies with them. I strongly support that suggestion and think it would be a very helpful reassurance to many of those who have criticised the steps taken to deal with these sorts of issues.

There is no doubt that we have to be always vigilant when we are dealing with the rights and liberties of British citizens. When private exchanges between individuals are invaded, there are consequences for all of us, not just the individuals involved, because societies that create a dark state, with extensive surveillance powers, have always in the end reaped the consequences: authoritarian abuse, serious miscarriages of justice, the growth of political mistrust which always follows, and ultimately a crushing of the human spirit. I agreed entirely when I heard the noble Lord, Lord Macdonald, describing what this does to the lives of individual people, the way that it invades the creative and intimate lives of people—the stuff of people’s souls. So we have to move ahead but with great care because sometimes invasions of privacy are absolutely necessary but they should be rare and under strict regulation.

The areas in the Bill that cause me most concern have already been spoken to. They relate to the protections that there must be for communications essential to the fairness of the legal system and communications essential to freedom of the media. A citizen has to have the right to confer with a lawyer in confidence; I will not repeat the arguments that have been presented to this House by my colleagues in the law. My life as a practising lawyer doing these sorts of high-level, politically sensitive cases has made me pretty cautious about claims concerning national security because that can be an elastic notion, capable of being harnessed for questionable ends.

I am concerned that the definition of “exceptional and compelling circumstances”, and the draft codes of practice that have been put together, set the bar too low. These can be broadly and loosely interpreted and the risk is that the law will enable and encourage the routine acquisition, examination and retention of legally privileged communications. That should concern us. Currently such a practice is deemed unlawful but we know from the Belhaj case in 2015 that at times that has not stopped inappropriate behaviour. We should always remember that codes of practice are not law. They do not have legal force and they can be changed without parliamentary scrutiny.

What should concern us is that when the Government were pressed in Committee in April about what they really intended, and they gave examples, they seemed to say that the purpose was to obtain strategic intelligence. That is just not a justifiable reason for this legal change. It is, I am afraid, dancing to a tune that is not acceptable in a democratic society. We cannot allow it to be used to interfere in privileged communications between lawyers and their clients simply because there might be a possibility of coming up with something. There has to be something more than that. The Law Society, the Bar Council, Liberty and Justice are all pressing for amendments. The Government have said that they will listen and I hope they will.

I am also concerned about journalists and the protection of sources. I agree with the noble Baroness, Lady Liddell. There are problems because of the expansion of journalism into the internet, the arrival of blogging and the ways in which people claim the title of journalist who would not have fulfilled that definition in the past. However, we have to be cautious about enabling journalists to make the public aware of things that are happening in society which has to involve their giving promises of protection to their sources.

I welcome the fact that David Anderson has been invited to review the use of bulk powers. Like the noble Lord, Lord Lester, I think he is a truly honourable man. He has an independent mind and is an invaluable public servant. I am glad that he is responsible for the review and I look forward to hearing what he has to say.

Clause 1 re-legislates the criminal offence of hacking telephones that saw the conviction of the Prime Minister’s press secretary for conduct when he was the editor of the News of the World. Nine other senior journalists at more than one newspaper—indeed, at more than one newspaper group—were also convicted. There were hundreds, if not thousands, of victims of that criminal conspiracy, many of whom were ordinary members of the public whose privacy was grossly intruded upon in a wholly unacceptable way. It is right that that offence is re-codified in the Bill. It is not only the state that intervenes in people’s privacy.

Many victims of phone hacking have taken out civil claims based on the common-law tort of misuse of private information. The old RIPA included in Section 1 a statutory tort but that has not been re-codified in this Bill. Why will citizens not have that entitlement any longer? I hope the Minister will help us with an answer to that question and perhaps the tort may be reinserted in the interests of fairness to those victims.

As we have heard, striking the balance between liberty and security is hard. The best way to do it is with trusted oversight and transparency. I welcome the openness of the Government in seeking to meet the concerns and I look forward to the debate in Committee.

Immigration: Detention of Pregnant Women

Baroness Kennedy of Shaws Excerpts

Wednesday 25th May 2016 Lords Chamber

[Lord Keen of Elie]

We have made it perfectly clear that detention in all cases is the exception and not the rule. In the cases of vulnerable adults, including pregnant women, it will be wholly exceptional for them to be detained. In general it is anticipated that detention will be required only in circumstances where someone arrives at the border without any right to be in the United Kingdom and can be more or less immediately returned to their country of origin.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, is the Minister prepared to say that, as a matter of principle, pregnant women should not be held in detention? That should be the starting point. It is what this House wants to hear and what this House voted for.

[Lord Keen of Elie]

There is a clear and unambiguous presumption against the detention of pregnant women.

Immigration Bill

Baroness Kennedy of Shaws Excerpts

Monday 21st March 2016 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I spoke in support of this amendment in Committee, although as the noble Lord, Lord Alton, said, it has been changed in the light of representations made by the noble and learned Lord, Lord Hope of Craighead. I invited my noble friend Lord Bates to throw away his brief, tear it up and go back to his department—and I see that he has thrown his brief to the noble and learned Lord, Lord Keen. Nothing that has happened since has done anything other than to underline the appalling atrocities that are occurring against Christians in Syria and Iraq.

As I came into the Chamber this evening, the noble Lord, Lord Alton, gave me this document, which is the report submitted to John Kerry by the Knights of Columbus. There are pages and pages of testimony of the most barbaric atrocities, of kidnappings, violations and extortions. Anyone who just glances at this document, which is incredibly harrowing, cannot but conclude that something must be done to stop this.

No doubt in reply my noble and learned friend may make some legal arguments about why the amendment may not be exactly right. I have followed the noble Baroness, Lady Cox, whom I admire immensely, as does everyone in all parts of the House, for her courage and perseverance in seeking out examples of injustice. Having listened to her speech, I say to my noble and learned friend that he would be wise also to abandon his brief and to go back to the Foreign Office and ask it how the European Parliament—not an organisation that I spend a lot of time praising—and Congress are able to take a firm view but this Government seem incapable of doing so and hide behind legalistic arguments which prevent us offering sanctuary to people who are facing real persecution. They are fleeing not just war but religious persecution, and they find themselves with nowhere to go.

The importance of recognising this for what it is—an appalling genocide—is that it enables us to stretch out a hand to these people, offer them sanctuary and get beyond the political correctness that says that we as a Christian country cannot offer sanctuary to Christians who are in real terror and despair. Many of these people use the language of Christ. If the parable of the Good Samaritan was about anything, it was about not passing by on the other side. I cannot share the expertise or the knowledge of the noble Baroness, Lady Cox, or the noble Lord, Lord Alton, but I urge all Members of the House and those outside the House to look at this document and the evidence and ask ourselves how much longer we are prepared to stand by and not acknowledge what is going on, which is a systematic attempt to destroy Christianity throughout the Middle East by people using barbaric medieval methods. It is essential that we find a way in which we can offer sanctuary to people who are victims. This amendment suggests a way in which that could be done, not just in terms of offering sanctuary but in bringing to justice those who have been responsible for these barbarous crimes. I hope that the House will feel able to pass the amendment or that my noble and learned friend will offer us a way forward which enables the Government to act and to not pass by on the other side.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, none of us who is pressing this amendment invokes the word “genocide” too readily. For most of us, this term will be forever associated with the atrocities of the Nazi concentration camps and the deliberate effort to exterminate the Jews during the Second World War. It is a word that carries incredible weight, and its importance cannot be diluted. We are taking about something of great seriousness when we talk about genocide.

“Genocide” has a specific legal meaning and the alarming truth is that, while genocidal violence has been perpetrated around the world since the Second Word War on a number of occasions, we find that very often there is resistance to using the terminology and a refusal to recognise genocide as genocide because it carries legal responsibilities with it. Noble Lords have heard a number of times that we have now heard the United States Secretary of State John Kerry, the United States Congress and the European Parliament all being of one voice about what is happening in the Middle East.

I remind the House that the 1948 genocide convention defines genocide as,

“acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

That is what is currently happening towards the Yazidi people, Christians and Shi’ites—anyone who refuses to convert. For the Yazidis it goes even further: because theirs is a pre-Abrahamic religious grouping, they are considered to be of lesser value, and in fact as less than human, in ISIL’s interpretation of Islam. The testimonies we have been hearing are absolutely barbaric. A week yesterday, I met for the second time the Yazidi Member of Parliament Vian Dakhil. She has been trying to draw the world’s attention to the plight of her people. I heard her account of spending time with families that are now in refugee camps and of the descriptions of what they have seen. Hundreds of men and boys have been slaughtered. Women and girls have been kidnapped from their families, some of them really very young children, and raped and raped again, continuously over months, their vaginas torn, then passed on and sold between men. She finds it hard to find words for what is happening. She says that these are girls who will never be able to have a proper family life when they grow into adulthood.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

The Yazidi are in a different position, which is why I raised them particularly. They are perceived by ISIL as not being one of the Abrahamic religions. Their religion predates even Judaism. As a result, ISIL sees it as something totally inimical to being human and as something other. That is why it feels quite at liberty to diminish this people to nothing. That is why it thinks that that is permissible, and that is why it is genocide.

[Lord Keen of Elie]

I am obliged to the noble Baroness, but the reality is that under the refugee convention and the European convention we could not in legislation discriminate between particular communities, such as the Yazidis, the Christians or the Shia Muslims. It goes further than that because we know that at present there are something like 4.8 million Syrians displaced in the Middle East, in Turkey, Lebanon and Jordan. It goes even further than that because, as the noble Lord, Lord Judd, observed much earlier in the debate on this Bill, according to the United Nations there are something like 19.5 million refugees in the world at present, whether they be in Darfur, Burma, the Middle East or elsewhere. The figure I had was 20 million, but in the context of such a catastrophe, perhaps 500,000 does not make an enormous difference. The reality is that this amendment would, on the face of it, open the United Kingdom to immigration by all 19.5 million people who could claim to be in that position. Noble Lords may scoff, but that is why it is so important that we examine the implications of the legislation proposed. Indeed, I have only to cite the example of Germany to point out the consequences of unintended action.

Immigration Bill

Baroness Kennedy of Shaws Excerpts

Tuesday 15th March 2016 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

I rise to speak to Amendment 81 standing in my name. I also support the amendments just spoken to which concern the ways in which these charges are having a serious impact on women’s lives.

The House will remember that on a previous occasion I raised the issue of access to higher education for young people leaving care who have leave to enter and remain in the United Kingdom. I was deeply concerned about the way in which these opportunities would be unavailable to certain categories of people. In response to my previous amendment, the noble Lord, Lord Bates, very kindly agreed to set out the position in relation to home tuition fees. I was concerned that people who have leave to remain and have been in care are expected to pay the fees as if they were overseas students—as if they were Americans choosing to come to study in Britain. That, of course, is not the case. The fees are very much higher and cause serious detriment to those who want to have the opportunity to undertake education.

I am grateful to the Minister for setting out his rationale and that of the Government. I should make it clear to the House that the Government consider that there is already generous provision for those who have been granted refugee status. So those who have gone through the process and obtained refugee status can get home fees and access the student support regulations, which means that they can get a loan. That is also available to those granted humanitarian protection, if they can demonstrate that they have been lawfully in residence—ordinarily resident—in the country for three years.

But what came through in the reply to my concerns was that local authorities would be prevented from paying the higher education tuition fees of adult migrant care leavers who are not refugees and do not meet the humanitarian criteria. I ask the Government to think again on this, and I shall explain why. By preventing this discretion—which is used very sparsely by local authorities—to provide assistance in the few cases where this situation arises, we are blighting the lives of many talented young people.

I have mentioned before that I am the president of a foundation bearing my name which provides bursaries to very disadvantaged people, including young refugees, young people who have fled humanitarian crises and those who have leave to stay. One such person is a young man, Ade, a Nigerian, who was trafficked to the United Kingdom when he was a child of 14 or 15 for the purposes of exploitation. He managed to escape but was on the streets and was homeless. He was taken into care at the age of 16 and classified as a looked-after child by Salford local authority. He subsequently claimed asylum and was granted limited leave to remain.

As a looked-after child, Ade received full financial support from Salford. He was recognised as being a very clever high achiever and was offered a place at the University of Salford, where he successfully negotiated a full tuition waiver. He was not eligible for student finance due to his immigration status but he got the waiver. Salford local authority covered the additional costs of studying by providing his accommodation and living costs. If he had not had that support, this young man would have been unable to complete his education at university. He graduated with a 2:1 and went on to do a master’s degree. He received his master’s with a merit just last summer. He is now seeking employment. If he had not had that support from Salford local authority and the Article 26 campaign group, which has also supported him, we would not have this young graduate, who will contribute to life here in Britain. He is now applying for British citizenship, as I said.

I ask the Government to think again because there should be exceptional circumstances in which the very able are given the kind of support that Ade has had. If it had not been available, at the very best he would be seeking to embark on his journey at this stage of his life rather than when he was able to. As I said, he is an incredible young man.

I want to impress on the Government that care leavers who have had leave to remain, and whose future lies in the United Kingdom, should be able to access student finance and home fees, and should not be expected to pay overseas fees as they are now. We could, for example, apply the three years’ ordinary residence in their cases, too—because Ade had been here for three years. I really want to impress on the Government that by having a blanket rule that local authorities cannot do this we are going to visit hardship on deserving cases.

[Baroness Lister of Burtersett]

My Lords, I will speak briefly in support of Amendments 79 and 80, to which I have added my name. The noble Baroness, Lady Doocey, has already made a very powerful case, as has the noble Lord, Lord Alton. While I appreciate the care taken by the Minister in his letter of 3 February, I am disappointed that the Government were not willing to budge an inch on what I—perhaps naively—thought was a rather small, albeit important, couple of amendments.

In Committee, the noble Baroness was rightly dismissive of the administrative arguments to justify refusal. Will the Minister give the House some idea of what the exact administrative costs are likely to be and what assumptions the Government made in deciding that it would be too administratively costly? Will he also give some idea of how many people in a year meet what he himself has described as the “narrowly defined” test to qualify for exemption on destitution grounds? While I prefer clear, legal entitlements, in the spirit of what the noble Baroness, Lady Doocey, suggested, I wonder whether there is room for building on the destitution exemption.

For example, if an applicant could demonstrate the difficulties that an up-front payment would cause, short of meeting the destitution test, they should be allowed to pay in a limited number of instalments. This would be clearly circumscribed. In some cases, we are talking about really large sums, but even where it is just the most basic payments, it is still a lot for someone with very limited means to pay as a one-off. That point has not been adequately taken on board.

What I am suggesting would get round the fear, expressed by the Minister, of people being able to use payment by instalments as an interest-free loan, regardless of their capacity to pay up front. We are not suggesting that anybody can come along and say they would like to pay in instalments—just those who may not fail the destitution test but who would clearly face real problems.

On the domestic violence exclusion, how many people have been exempted under the rule—brought in, according to the Minister’s letter, in April 2015—that exempts treatment needed as a consequence of domestic violence? Would it not be simpler just to exempt all those who have been a victim of domestic violence, rather than making applicants prove that any physical or mental health needs are a direct consequence of it? We know, from other contexts, how difficult it is to prove these impacts—particularly on mental health—in a way that satisfies authorities. It can also be very distressing to have to provide that proof.

I have received an email expressing support from the Royal College of Nursing, which is very concerned about the workings of the health surcharge. One of its concerns is to know what mechanisms exist, and what assurance the Government can offer, that the revenue generated is redirected back into the NHS.

Finally, I support Amendment 81, tabled by my noble friend Lady Kennedy of The Shaws. I quote from the conclusions of a study carried out by the UN High Commissioner for Refugees and the Council of Europe, which adds to the strong case already made and states:

“Access to education should be better supported, including, where necessary, after young unaccompanied and separated asylum seekers and beneficiaries of international protection have reached the age of majority, as it plays a critical role in their transition”.

We had an example of that from my noble friend. It is important that we support these young people in such a difficult transition period.

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Tabled by

[Baroness Kennedy of The Shaws]

81: After Clause 43, insert the following new Clause—
“Access to higher education for young people leaving care who have leave to enter or remain
(1) The Secretary of State for Business, Innovation and Skills shall make regulations identifying as eligible for student support a person who—
(a) has leave to enter or remain;(b) is a person to whom a duty is owed by a local authority under section 20, 21, 22, 23A, 23C, 23CA, 24A or 24B of the Children Act 1989;(c) is ordinarily resident in the UK and has not ceased to be so resident since the person was granted leave to enter or remain; and(d) is ordinarily resident in the UK on the first day of the first academic year of the course.(2) The Secretary of State for Education and Skills shall make regulations providing that tuition fees may not be charged at a higher rate for a person who—
(a) has leave to enter or remain in the UK;(b) is an asylum seeker; or(c) has made an application for leave to enter or remain in the UK which has not been finally determined;and to whom a duty is owed by a local authority under section 20, 21, 22, 23A, 23C, 23CA, 24A or 24B of the Children Act 1989.(3) For the purposes of this section, a duty owed to a person by a local authority shall be interpreted as if Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support) did not apply.
(4) “Student support” means financial support by way of grant or loan made by the Secretary of State pursuant to regulations under section 22 of the Teaching and Higher Education Act 1998 (new arrangements for giving financial support to students).
(5) “Tuition fees” means fees payable for a course of a description mentioned in Schedule 6 to the Education Reform Act 1988 (courses of higher education).”

[Baroness Kennedy of The Shaws]

Before I indicate my position, I say that I am grateful that a promise has been made that I might have the opportunity of meeting the Department for Business, Innovation and Skills because, in drafting Amendment 81, I did not mention that it would be possible to reach a compromise. That compromise would be to create the same basis as we do for those who are here having fled from a humanitarian crisis. In those circumstances, we provide the special assistance of home fees and access to loans only if people have been here for three years. This usually means that they have been given leave to remain a number of times and had to make an application more than once. In the same way, and in offering a compromise, I suggest that for those people who have been domiciled for three years there might be some movement on the position currently taken by the Government.

This is obviously an expression of disappointment but I emphasise that while it is costly if a local authority has to pay overseas fees for such students, that is precisely what it should not be expected to do. The fees should be the home fees. If we have taken people in and provided them with care—as though we are their parents—then in moving on to the next stage of their lives, if they are still here because they have been trafficked and are still living in fear we should provide home fees. That would take things within a more reasonable remit for local authorities. However, I am grateful for the Minister’s offer that I might have the opportunity of meeting the department, which I would really like to take up, so I will not move my amendment.

Amendment 81 not moved.

Immigration Bill

Baroness Kennedy of Shaws Excerpts

Wednesday 9th March 2016 Lords Chamber

[Baroness Lister of Burtersett]

My Lords, I support Amendment 57. I will not repeat all the arguments I made in Committee in support of this most basic of civil rights—the right to be able to undertake paid work. I simply want to respond to a couple of the arguments that the noble Lord, Lord Ashton of Hyde, made in response in Committee.

As the noble Lord, Lord Alton, noted in so ably moving the amendment, the main argument seemed to be our old friend, the pull factor, which dominates policy-making in this area. Since that debate, my attention has been drawn to the only piece of research I am aware of that has explored with individual asylum seekers and refugees the factors that informed their decision to seek asylum in the UK. The report Chance or Choice? by Heaven Crawley was published a few years ago by the Refugee Council. I will quote from it in the interests of evidence-based policy-making. Her broad finding was that, contrary to the assumptions on which policy is premised,

“the choices asylum seekers make are rarely the outcome of a rational decision making process in which individuals have full knowledge of all the alternatives and weigh them in some conscious process designed to maximise returns”.

Professor Crawley found no evidence from this or other research that work acts as a pull factor. Instead, she concludes that,

“the policy change introduced nearly a decade ago to prevent asylum seekers from working whilst their claim is determined has had no measurable impact on the level of applications received”.

The report said of asylum seekers,

“the inability to work was the biggest difficulty they faced in rebuilding their lives. Lack of access to work has psychological and social as well as economic consequences”.

It quoted a woman from Zimbabwe who said:

“Sometimes I just cry. It’s like I am worthless, like I am just this piece of junk”.

Another said:

“My mind has gone rusty. I am not able to look at a meaningful life anymore. I look at it and I think, oh what a wasted life”.

It is terrible that people are having to feel this.

The noble Lord, Lord Alton, cited a range of cross-national evidence that does not support the argument that enabling people to work acts as a pull factor. No doubt the Minister will respond with the other argument given twice in Committee:

“It is important that we protect the resident labour market for those lawfully present in the UK”.—[Official Report, 20/1/16; col. 850.]

But asylum seekers are lawfully present until they are deemed otherwise. To suggest they are not plays into the popular tendency to conflate asylum seekers with undocumented economic migrants.

This leads to my final point. A number of noble Lords and organisations outside have expressed the fear that by denying asylum seekers access to legitimate paid work, sheer need and desperation will push them into the shadow economy where they are prey to exploitation. I raised earlier my concerns that they could now also be caught by Clause 32, which will criminalise them.

To conclude, like the noble Lord, Lord Alton, I do not believe that the Government have made their case that current policy is, to quote the noble Lord, Lord Ashton of Hyde, “fair and proportionate”. On the contrary, it is unfair and disproportionate when compared with the position in most other EU countries, and in its short-term and long-term impact on asylum seekers and refugees whose subsequent integration into British society is impeded by it, as we have already heard. As Ian Birrell, former speech writer for the Prime Minister, wrote earlier this week:

“The key is to let refugees work legitimately, so they can build a fresh start—wherever they are. After all, what human being wants life trapped in limbo … Refugees may have escaped hell, but that does not mean we force them into purgatory”.

It feels as if, too often, we do just that. This amendment would help asylum seekers out of the purgatory of enforced idleness and impoverishment.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I, too, support this amendment. I frequently find myself addressing immigration issues at public meetings because these issues are in the public’s mind and attract a lot of attention, particularly in relation to law. As soon as you draw the distinction between economic migrants and those seeking asylum, the public always recognise the importance of the ability to work, and support it. There is a misconception among politicians’ and public commentators’ understanding of the public mood on this issue. The public generally think it is right that those seeking asylum should have the opportunity to make a life, to work and to have that dignity which everyone has spoken about. They do not see this as just a compassionate issue but as one of good sense in relation to this country and its needs. I urge the Minister to look at this issue carefully, especially given the speed with which these applications are now being dealt with, as the Labour Front Bench mentioned, and which we commend. This is one of the ways in which we can show that we are capable of making a distinction between economic migrants and others; that we will not allow this confusion to arise in the public’s mind; and that we recognise the public’s desire to ensure that those seeking asylum, to whom we are giving a home, should have the opportunity to live among us, work, and thereby make a contribution to their own lives.

[Lord Wigley (PC)]

My Lords, I support the comments made by the noble Lord, Lord Alton, and by other noble Lords and reinforce the points that have just been made with regard to the attitude of the general public towards genuine refugees. They would much prefer that these refugees are enabled to make a contribution to the economy and to the social life of the community into which they move. This was reinforced in my mind the other night—as it possibly was for other noble Lords —when a refugee who was a pharmacist was shown on a television programme. One thinks of the contribution that he could make with those skills, which we need. We are silly not to maximise those opportunities. For those reasons, I support the amendment.