Immigration Bill

Debate between Baroness Kennedy of Shaws and Baroness Hamwee

Monday 12th May 2014 Lords Chamber

[Baroness Kennedy of The Shaws]

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

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

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

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

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

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

[Baroness Hamwee]

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

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

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

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

“a mixed question of fact and law”.

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

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

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

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

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Kennedy of Shaws and Baroness Hamwee

Wednesday 11th December 2013 Lords Chamber

[Baroness Hamwee]

My Lords, in moving Amendment 56YJ I will speak also to Amendment 56YK. I also have Amendment 100A in this group, which is a consequential amendment. The whole of this group deals with Schedule 8, which is Schedule 7—port and border controls—in the previous legislation. My amendments have come up as a curtain raiser, though in this debate they are probably more of an epilogue. They relate to future possible action rather than to anything that might happen immediately, as would other actions flowing, in most cases, from the work of the JCHR. I am not suggesting that noble Lords who are moving and speaking to them are merely acting as mouthpieces—I know that that is not the case.

My noble friend Lord Lester is unwell and very sorry not to be here to speak to amendments in his name and to which he has added his name; my noble friend Lord Avebury has his instructions. I do not want to make a Second Reading speech at this point—perhaps speeches on these issues will be longer on Report—but I will make some general remarks. I acknowledge that the Government have moved forward a little on the relaxing of the arrangements to which this schedule applies, but like others I am eager for more.

I was interested in some of the comments that the Government included in their publication responding to the response to the review of the operation of Schedule 7. We do not have the responses published, but there are some interesting and telling comments. A self-declared police officer says:

“Schedule 7 should also incorporate a clear commitment and implementation process to the Equality Act 2010 general duty of ‘fostering good relations’”.

There are comments about,

“More tactful or less intimidating examinations”.

The report says of the community engagement events which the Government undertook that,

“The conduct of examinations was raised repeatedly”.

The Equality and Human Rights Commission commented at length on the lawfulness of stopping without suspicion. It said that,

“there should be no power to detain and question for more than 1 hour”,

on the basis that if an officer cannot articulate suspicion after 30 minutes of questions, he certainly should not detain for up to nine hours.

The Government asked whether respondents had any personal experience of being stopped and detained. I note that the proportion of those who said that,

“Schedule 7 powers are unfair, too wide ranging and should be curtailed”,

was considerably higher than the proportion who said they had personal experience. Even if you add the “prefer not to say” responses, it is still a higher proportion.

I was also interested to see the advice to examining officers following the recent case about,

“the right to consult a solicitor in private, in person and at any time during the period of detention”.

I know of a man who was detained but did not exercise that right because he was told by the officer who detained him that this was bound to lead to a delay, meaning that his wife and his elderly, infirm mother, with whom he was travelling, would be left even longer not knowing what was going on—a practice that I hope never to hear of again. Clearly, training in this is an issue.

Of course, my underlying point is about the balance between protection and security, and individual liberty, some of which is about what the Government can do through officers and some of which is about safeguards written into the legislation.

My amendments anticipate what we might be seeking if this debate were following the report by the independent reviewer of terrorism legislation when we know the outcome of the Miranda case, but I have picked up on his evidence to the recent Home Affairs Select Committee inquiry into this. Amendment 56YJ picks up two of his recommendations, 4 and 7, on the introduction of safeguards in respect of legally privileged material and on a bar to the use in a criminal trial of admissions made in the circumstances of such a detention.

Amendment 56YK shows that I am ever the optimist. I would never expect wording such as this to be used in legislation, but we are only in Committee. It seeks assurances from the Government about following through on—although I would say, for the purposes of the debate, looking seriously at—recommendations made by the independent reviewer following the Miranda case. I am sure that my noble friend the Minister will give assurances about that. I remain optimistic but also vigilant. As I said, Amendment 100A is consequential. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I will speak to Amendments 57 to 64. It is important to consider the backdrop here. Schedule 7 of the Terrorism Act 2000 is a highly intrusive police stopping power and it operates outside the normal regulatory framework that covers other police powers of stop and search.

Under Schedule 7, individuals are stopped and they are not under arrest but they are examined for up to nine hours, under the current arrangements, where they can be questioned, searched and have their belongings searched; they can be strip-searched; and they can have samples of their biometric data, including their DNA and fingerprints, taken from them, regardless of the outcome of the encounter and in the absence of a lawyer. People are stopped under it and are obliged to co-operate or face arrest, a period of imprisonment or a fine for any refusal. In addition, there is no right to compensation or assistance in rearranging any flights or other transportation that they might have missed as a result of this examination or detention. It is important to see just how extraordinary these powers are.

Recent research has shown that in 2011-12—the examination of this material has only just been encapsulated in a report—63,902 stops were carried out under Schedule 7. Of these, 2,240 lasted more than an hour and 680, which is less than 1%, resulted in a detention. Although no information has been provided on the number of people convicted, and on what charges, there were just 10 terrorism-related convictions between 2009 and 2012. I have been involved in most of the cases and can tell you that none was as a result of a stop at an airport or any port. We have no convictions based on these stops.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

My Lords, I thank the Minister for his very considered response to the matters that have been raised. I am grateful to him for indicating that further thought will be given to some of the matters that have been part of the debate here. I know that there will be no movement on certain things, but that there might be some movement on others. On that basis, I will not press my amendment.

[Baroness Hamwee]

My Lords, I am extremely grateful to my noble friend for his very helpful response and I am glad that there will be further opportunity to discuss these things. He has given some important assurances on a number of points. My amendment 56YK was really rather tongue-in-cheek, of course. It was also a bit of a nod to my honourable friend the Member for Cambridge, who had it down in the Commons but did not really manage to speak to it. I would not subcontract such matters, but the assurances of further consideration are very helpful to hear. I have never doubted the very serious way in which the Government are considering this.

A number of noble Lords will want to take part in discussions of this on Report. In particular, the noble and learned Lord, Lord Lloyd of Berwick, was not able to stay long enough this afternoon, and I am sure that my noble friend Lord Lester will be back to discuss it. I think that I can assure the Committee that there will be a pretty substantial debate next time round. Most importantly, we will be looking at where the Government’s thinking is going before we come back onto the Floor of the House. There are clearly very important discussions to be had. On that basis, I beg leave to withdraw the amendment.

Terrorism Prevention and Investigation Measures Bill

Debate between Baroness Kennedy of Shaws and Baroness Hamwee

Wednesday 19th October 2011 Lords Chamber

[Baroness Hamwee]

I absolutely support what the noble Lord, Lord Pannick, said. My amendments to both his amendments were partly in response to an earlier draft, which I think he changed before tabling them. However, the point remains the same: to tease out whether the words “if possible” are objective or subjective to the individual. I am not sure what “if possible” means in the context. I would certainly not want anything that the noble Lord has included to detract from the thrust of his important amendments and argument. I beg to move.

[Baroness Kennedy of The Shaws]

My Lords, I support the amendments in the name of the noble Lord, Lord Pannick. I disclose that I act from time to time in what have been control order cases and may be called on to act in future such cases. I reinforce the importance of having disclosure of the essence of the case. The reason for that is that from time to time I have seen that, when disclosure of the essence of the case takes place, it is possible to show that the inferences drawn from certain behaviour are not appropriate.

I give an example. The case involved a student living in a house with other students. We are always concerned that association can be an unfair way to judge someone. An assumption was made and disclosed in the essence of the case against him that a conspiratorial meeting took place at a particular time. It was possible for us to show that he must have been in his room using his computer because, during the period of the meeting, he was in direct contact with the department with which he was studying at university, drawing down the homework that he was required to do. Not only was the university able to confirm that but his computer, which was seized, showed that the timing coincided with when some others were involved in the meeting, when he was in his room studying. Just that allowed someone to show that an inference being drawn was incorrect.

Given that we are putting together a system which is in many ways a source of concern with regard to liberty, it is really important that opportunities are there for people to show that their actions are not the ones that the state is imagining. We must, in drawing up new proposals—some of which I am not completely happy with—draw on the decisions made by judges under the control order regime.