Immigration Bill

Debate between Baroness Kennedy of Shaws and Lord Bates

Wednesday 3rd February 2016 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, my Amendment 239B relates to asylum seekers who came to this country as children, who then progress into higher education. They are currently subject to the rules that provide for higher fees in education because they have come from abroad, so they face the charges that are faced by those who apply to come to this country, as though they were people living elsewhere.

I am seeking an amendment to the Bill to allow for those young people not to be subject to the charges faced by foreign students and, since they have come as asylum seekers and are living now in this country, being provided the protection and safe haven of this country, we might therefore provide for tuition fees to be charged at the lower rate that is charged to people in this country. I should have risen before my noble friend on the Front Bench, but I had not realised that my amendment was in this group. That is the basic argument being made for Amendment 239B.

I have direct experience of this because, as I think I have mentioned in the House before, there is a small foundation which gives bursaries to people who are particularly disadvantaged. A category of them are asylum seekers, so we are very conscious of the problems that young people have when they come to this country and are given a safe haven. They are then often the most diligent at sixth-form colleges and in further education, and go on to higher education, but they face this incredibly high bill, although they have very little resource at all. We can help them in the tiniest ways, but they are facing the increased fee as if they were a well-to-do person applying to come to study in this country from abroad. So we think that the Government might want to look at this matter.

[Lord Bates]

My Lords, I am conscious of the time and that there has been some shuffling around and stern looks from the usual channels, who are looking to make progress. I hope your Lordships will bear with me when I say that it just happens that the way in which the scheduling has gone, we arrived at what is probably the most important group of amendments just before 7 pm. There are a huge number of people outside as well as inside this Chamber who need to understand what the 26 amendments that the Government have in this group, and of course the other amendments in it, would do. I need to put that on the record—that is a kind of clue to those people who are hovering that it may well be 15 minutes before I have done that. I hope that the House will bear with me and understand that we are talking about a very important group. I want to get those comments and explanations on the record so that they can be examined ahead of Report and our meeting.

To shorten somewhat what I will go through, I again refer noble Lords to my letter of 21 January and to the response explaining Schedules 8 and 9. I particularly draw the Committee’s attention to paragraphs 64 through to 76, and to appendix B. I have struck out some remarks of explanation in the areas covered in that document, which has been circulated and is in the public domain. I have also given an undertaking to the noble Earl, Lord Listowel, and the noble Baroness, Lady Lister, that we will have a meeting on this—an opportunity to exchange views and take a little more time to look at the evidence in the period between Committee and Report.

Clause 38 and Schedule 9 make changes to local authority support in England for migrants without immigration status, under Schedule 3 to the Nationality, Immigration and Asylum Act 2002, while they establish a lawful basis to remain here or prior to their departure from the UK. Our public consultation on asylum support highlighted concerns that the framework provided by Schedule 3 and associated case law was complex and burdensome for local authorities to administer, and involved complicated assessments and continued litigation to establish what support should be provided and in what circumstances. The Public Bill Committee of the Commons heard similar concerns from local authority colleagues.

We are clear that we want to encourage and enable more migrants without any lawful basis to remain here to leave the UK in circumstances where they can do so, while retaining appropriate safeguards. We have also listened carefully to what local authorities have told us about the scope for simplifying and strengthening the current framework. In that context, we have also had engagement with the Office of the Children’s Commissioner and I will ensure that we get a readout from those discussions for our meeting.

Schedule 9 therefore makes two key changes to Schedule 3 to the 2002 Act. First, it simplifies the way in which local authorities assess and provide accommodation and subsistence for destitute families without immigration status. It enables local authorities to continue to provide, under Section 17 of the Children Act 1989, for any other needs of a child or their family in order to safeguard and promote the child’s welfare. Secondly, it prevents adult care leavers who have exhausted their appeal rights and have established no lawful basis to remain here from accessing local authority support under the 1989 Act. It makes alternative provision for their accommodation, subsistence and other support before they leave the UK. It ensures that local authorities can still provide these care leavers with any social care support which they consider that the young adult needs during this period.

Yarl’s Wood

Debate between Baroness Kennedy of Shaws and Lord Bates

Tuesday 24th February 2015 Lords Chamber

[Lord Bates]

At Yarl’s Wood, in the past two years, the answer is, fortunately, none. These are very vulnerable people; we accept that totally. The noble Lord asked about pregnant women in particular. There is a limit which says that no women past the 24th week of pregnancy can be held or put into the detention fast track. The point is that they should be in Yarl’s Wood only for a very short time. They are people who are identified for quick return and their stays should be no more than a few weeks.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I welcome the Secretary of State’s review of the welfare of detainees, but I am anxious to know whether it will include a review of whether the decision-making is to the appropriate standards. The evidence shows that victims of abuse in these centres feel greatly traumatised by the very fact of detention. Surely the reviewer should be encouraged to meet ex-detainees as present detainees might be reluctant to speak of some of the things that have happened to them. Would it not also be good if he met members of organisations that work closely with traumatised victims who have been detained—organisations such as the Helen Bamber Foundation, which deals with victims of torture; Freedom from Torture, and Women for Refugee Women? Will the reviewer meet those people, and will he review the very decision-making as to whether people should be detained at all?

[Lord Bates]

It is, obviously, set up as an independent review, so it will be for Stephen Shaw to do that. However, as he is a former Prisons and Probation Ombudsman I would expect that his attention will be drawn not only to the current detainees but to former detainees and also to those excellent charitable organisations. To the list of excellent charitable organisations that the noble Baroness mentioned I would add Hibiscus, particularly at Yarl’s Wood. It does an outstanding job of providing humane care, advice and friendship to people in that situation.

Modern Slavery Bill

Debate between Baroness Kennedy of Shaws and Lord Bates

Monday 23rd February 2015 Lords Chamber

[Lord Bates]

I am grateful to the noble Baroness, Lady Kennedy, for returning to move her amendment and giving us an opportunity to again look at this important area.

The Government are keen to ensure that we get right the legal support available to victims through the Bill. That is why we amended the Bill in Committee in this House to extend the existing legal aid provision for victims of trafficking to those who have experienced slavery, servitude or forced labour. This support will be provided once an individual has received a positive “reasonable grounds” decision in the NRM, which is generally made within five working days of an individual being referred to the NRM. I accept totally the point made by the noble Baroness about it being essential that good decisions are made early, and that might be done within that definition. I do not consider that this short period of time without legal aid should have a significant adverse impact on individuals. We want as many victims as possible to gain access to the safety and support provided by the national referral mechanism. Once referred to the NRM, individuals will have 45 days’ reflection and recovery in which to make informed decisions about their immigration choices in a safe environment and with access to legal aid.

I am concerned that providing access to legal aid without any link to the NRM may encourage some victims to not opt for the support available to them. Opening up legal aid to those not in the process would not only risk incorrect use of the system but would mean that individuals could bypass the safeguarding system in place for them, and risks individuals remaining in situations of exploitation. For this reason, I think it is right that legal aid is available only once individuals have entered the national referral mechanism.

However, we are open to changes from the existing system. We have committed to piloting a range of changes to the NRM in light of recommendations made by the recent review, which will include incorporating the “reasonable grounds” decision into the initial referral. In practice, this would have the effect of providing earlier access to legal aid because “reasonable grounds” is the trigger by which that would happen. Any changes to the NRM would be reflected in the provision of legal aid and could be made through secondary legislation.

I hope that the House will be reassured that, through the NRM pilots, we will be testing moving access to legal aid for victims of modern slavery to the point of referral, as was being suggested. Given the concern that this amendment could inadvertently discourage victims from leaving a situation of slavery, I hope that the noble Baroness will consider withdrawing or not moving her amendments.

I should just answer a couple of points raised by my noble friend Lady Hamwee and by the noble Baroness. I was asked about the NRM pilots. Those pilots will test the provision of legal aid at the point that a case enters the NRM. The NRM review did not recommend access to legal aid prior to this point. We do not currently intend to test this proposal.

A point was made about the comparable system for asylum seekers. Advice is available for potential asylum seekers to understand their rights under the refugee convention. There are limited funds available for more general immigration advice that a victim of modern slavery would seek. We need to ensure that advice is therefore appropriately targeted and best assists the victims. Asylum seekers come to the UK as a place of safety and may then seek advice on their next steps. This is not the same as a victim of modern slavery, who may still be in a situation of exploitation. We think that linking legal aid to the NRM process is the best way to ensure that such advice is received by the right people and that victims are encouraged to gain access to the protection and support available in the NRM mechanism.

For those reasons, I ask the noble Baroness to reflect on her amendment.

[Baroness Kennedy of The Shaws]

I am grateful to the Minister for explaining how the pilot scheme will operate and that the whole intention is to direct people towards the national referral mechanism. The hope is that that mechanism will work much more effectively than it has been doing and that it will provide the kind of support that is needed. However, the concern that providing legal aid earlier might in some way direct people away from the national referral mechanism in many ways highlights the very problem that worries me and others who are directly involved in immigration cases. In fact, there is evidence that lots of people—I say “lots of people”; I am not sure that we know what the numbers are—are not leaving abusive circumstances and circumstances of slavery because they do not know what their legal position is. They do not seek legal advice to take the steps that we are hearing about. The suggestion was made that we limit it to the circumstances in which a lawyer would bear the burden of making the assessment that somebody meets all the tests, as the noble Baroness, Lady Hamwee, said. An application would then be made for legal aid. That lawyer would then know that the usual legal aid assessment would be made and that they would carry the financial can if their assessment was not accepted as reasonable. That will gather up those people who are afraid of taking the big step of going to authorities when they do not know what the risk will be to them.

I know that the Government’s intention is that the authorities will act in a much more embracing and supportive way, but you cannot overcome people’s fear as easily as that. That is why having something available beforehand is being urged on the Government. I understand the automatic response that we have got to be very careful about not expanding the parameters of legal aid in this area because we are trying to cut it down but, by doing that, there will be a detriment to a category of people who are too afraid.

It is interesting that the noble Baroness, Lady Hamwee, raised the issue of numbers. It is not thought that the numbers here are considerable but they are often the most serious cases, where people are really suffering and afraid because they are in total ignorance of what their rights are. The point where they go to somewhere like Kalayaan and are referred to a lawyer is when they can be told what their rights are and understand that their case will fall into a category which will allow them the protections that they need through the processes of the national referral mechanism, which is being reformed in a way which will give people confidence.

I hear what the Minister is saying and I will withdraw my amendment at this stage. However, I ask the Government to consider piloting for this category of person, too, to see whether there is a way in which a kind of “green form” scheme can be created to provide that preliminary advice. Secondly, I ask the Minister to look at the numbers. I suspect, as the noble Baroness, Lady Hamwee, suggested, that the numbers are not very great. So we are not talking about a great cost but it will catch, perhaps, some of the most vulnerable. I beg leave to withdraw the amendment.

Independent Panel Inquiry into Child Sexual Abuse

Debate between Baroness Kennedy of Shaws and Lord Bates

Wednesday 4th February 2015 Lords Chamber

[Lord Bates]

My noble friend is absolutely right that we do need to get it right and the terms of reference are key. When we set up the initial independent panel, she will recall that we planned to have six-monthly statements. I thought that was a good arrangement, but one of the whole points of setting it up under the independent Inquiries Act is that the terms of reference have to be agreed with the new chairman. That will be very important, but the fact that we have a former High Court judge—a member of the judiciary with great experience of getting through complex and difficult situations and getting to the heart of the truth—should help us in that task.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I, too, join others in congratulating the Home Secretary on this appointment. Justice Lowell Goddard is someone known to a number of us in the legal profession, and I am sure our judges know her well. She is highly respected and has a great deal of experience. New Zealand has particular experience in dealing with these very problems—indeed, another judge, Carolyn Henwood, led an inquiry into child abuse in children’s homes—so there is a wealth of experience there.

I want to ask this question, because I heard mention of whether the appointment of Ben Emmerson was something that would be agreed to. Ben Emmerson QC is a fearless counsel. Surely the Minister would agree in appointing him that there is a very important role for there to be someone who understands the British system—the British class system, the nature of the British establishment and matters which might not be as quickly understood by someone from a different jurisdiction.

My second question is about the Official Secrets Act. As I understood it, the Minister said that no one would be able to hide behind the Official Secrets Act so as not to answer questions in relation to the inquiry. I should like reassurance about that, because a number of the victims say that, in having their desire to pursue complaints dismissed, they were at times told that matters of national security or public interest meant that inquiries should not proceed. That would be a detriment to the kind of inquiry which is sought by survivors and all of us to clear these matters up.

[Lord Bates]

I welcome the noble Baroness’s support for Justice Goddard from her personal experience of her, and for Ben Emmerson QC. We have been very clear that the Official Secrets Act should be no bar to anyone coming forward with evidence. There are means under the Inquiries Act whereby, if need be, certain evidence can be supplied to the inquiry with restrictions around it, but the Official Secrets Act cannot be used as a screen to hide behind.

Counter-Terrorism and Security Bill

Debate between Baroness Kennedy of Shaws and Lord Bates

Wednesday 4th February 2015 Lords Chamber

[Lord Bates]

My Lords, this has been an excellent debate. I often say that it has been a good debate when I stand up at the end of a group of amendments, but this has been a truly outstanding discussion. We have been talking in an academic context; I think this debate should almost be required reading in many institutions, although I would not wish to encroach on academic freedom by suggesting it so blatantly.

It has evoked such strong passions because there are so many Members of your Lordships’ House who have held and hold positions in our great British universities and who have benefited from the freedoms of speech and academic research which exist there. These are strengths and the envy of the world. We have all had the opportunity and privilege of benefitting from them. When I look at the warden of Wadham College I always have particular regard to what he has to say—whether it is telling me about legislation or taking the short cut across the quad. It evokes a deep passion in us all and we are right to feel very proud of our institutions and the freedom of speech which takes place within them.

I want to put how we arrived at this situation into some sort of context. The Prevent strategy was introduced in 2007. As the noble Baroness will recall, in 2005 we had the outrage of the terrorist attack on the London Underground; 54 people were killed and several hundred people were injured. There were two Terrorism Acts—one in 2000, when the noble Lord, Lord Wilson, was Cabinet Secretary, and a subsequent one in 2006. I want to echo the points made by my noble friend Lady Warsi. There was a view which said, “Listen, there is something more afoot here. We need not just to tighten the law, to tighten the surveillance and prosecution element of it. We need somehow to prevent and to get ahead of the poisonous ideology which is pervading these people’s minds to actually think that they would consider blowing themselves up on a crowded subway train. We need somehow to engage with that”. So the previous Government, to their credit, came up with the concept of Prevent. Right from the outset the Prevent programme went across all bodies and organisations. All public bodies were encouraged to think about how they could prevent people from being drawn into terrorist activities.

One of the dangers of listening to my noble friend Lord Deben is that I get so carried away by his arguments and powers of persuasion that sometimes I forget that I am not sitting on the Back Benches and I nod vigorously towards him. Then I remember that I have a responsibility on the Front Bench and am jolted to focus on Clause 25, which says that the general duty to which we ask people to have due regard is that:

“A specified authority must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism”.

That is what it says. We can get drawn into its implications, but that is the principle that is on the face on the Bill.

So we had the Prevent strategy, which applied across all organisations and which was reviewed and refreshed in 2011. After the horrific murder of Drummer Lee Rigby on the streets of Woolwich, there was an assessment of the Prevent strategy and the conclusion went something like this. “Listen, there are some wonderful things going on. We have regional co-ordinators. They are working very well with the universities in looking at who is on campus, making sure that they have preparations in place and that views which are potentially dangerous and leading people into extremism and terrorism are noted. However, it is very patchy. There are some universities that are extremely good and there are some which, to be honest, just do not want to play ball. Invariably, as is often the case, the ones that are very good are in the low-risk areas and the ones that are very poor are in the high-risk areas”. The extremism task force which was considering this came forward and said, “We need to put this on a statutory footing, so that we get some consistency of delivery across the piece—across all organisations—and we bring the ones which are not taking their responsibility seriously up to the standard of what the others are doing already”. So we arrived more or less at where we are.

Then, because the guidance to be put out was going to be specific—and noble Lords have had some great fun at its expense—this was something that we put out to consultation. The noble and learned Lord, Lord Hope, referred to differences with the Scottish consultation. I think I said in Committee that in relation to the particular, narrow elements, the requirements such as giving advance notice on speeches are very limited compared with the much more extensive Universities UK guidance for external speakers, which requests,

“a script or précis from the speaker outlining what they intend to say and requiring them to sign an undertaking acknowledging that their speech will be terminated if they deviate from it”.

This is from Universities UK’s current guidelines on having speakers on campus, which also talks about:

“Briefing the chair in advance of the event, making clear that they have a responsibility to ensure that no speaker or other person present at the event infringes the law; this briefing could highlight the circumstances under which they must stop the event, issue warnings to participants on their conduct or request the withdrawal or removal by stewards (or the police if necessary) of the person(s) concerned”.

I do not recall a hue and cry from the collective colleges of our great universities to say that this was outrageous and should not be happening; people just kind of said, “Listen”—

[Baroness Kennedy of The Shaws]

The reason why there was no hue and cry from the colleges and universities is that they just ignore it. It is a shame on Universities UK that it produced guidelines that are so ridiculous that people cast them to one side. I am afraid that this has led to a diminution of respect for the organisation, and that has been a problem across the board.

Counter-Terrorism and Security Bill

Debate between Baroness Kennedy of Shaws and Lord Bates

Monday 2nd February 2015 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I return in this set of amendments to matters that I raised in Committee. I do so as a member of the Joint Committee on Human Rights, which is concerned about the inadequacy of providing for the right to a fair hearing on these matters under Article 6 of the European Convention on Human Rights. I say immediately that we recognise the availability of judicial review but the availability of JR alone is not sufficient to satisfy the requirement of the right to a fair hearing under Article 6.

I remind the House that this Bill gives a significant power to the authorities to remove a passport and prevent someone travelling. It provides for a judicial consideration only after 14 days, so you do not go immediately to a court unless you seek judicial review. However, after 14 days the judge is under a duty to extend the period of retention of the passport for a further 30 days so long as he or she is satisfied that the investigation into the person is being conducted “diligently and expeditiously”. That is the only test for the judge at that point. We can well imagine someone turning up to say, “We need to keep this passport longer because we are still making our inquiries and working as fast as we can”. All of us who know how the courts work know that it is very hard for a judge to go behind the simple statements presented to the court.

The Bill provides for a closed material procedure at that hearing but makes no provision for the interests of the excluded party to be represented by a special advocate. You can ask for an extension, and for the person whose passport has been removed and the counsel representing them to remove themselves from the court. While in other circumstances that would immediately give rise to the special advocate procedure, here it does not.

It was the view of the Joint Committee that the best way to ensure compatibility with Article 6 was to amend Schedule 1 to the Bill so that it provides a genuinely judicial system of what we called “warrants of further retention”, directly analogous to the system of warrants of further detention of terrorism suspects in Schedule 8 to the Terrorism Act 2000. In fact, that has been used as the model in these circumstances, except for this set of provisions. I know that in Committee the Minister said that detention warrants were of greater seriousness than removing someone’s passport, but we would remind the House that interfering with family and private life by seizing someone’s passport is rather important and a significant intrusion into one’s liberties. However, the standards that we would expect seem to be absent.

The amendments put forward in my name fall under a number of different headings. The length of the period of retention concerns us; it should be seven days, not 14. The grounds that must be satisfied for a judicial warrant of further retention should be gisted and a summary of the withheld information, at least, should be provided to the court. That is different from the position proposed in the previous amendment because although lawyers would be involved at that point, a constable at the scene, say, could not be expected somehow at short notice to provide a statement that did not in any way risk disclosure of sensitive information. In this case, lawyers would have already been involved and gisting would have been perfectly possible.

Therefore, my set of amendments deals with these matters and reflects the amendments proposed in Committee. They provide for proper judicial oversight, which should happen speedily—not within 14 days but seven. We would expect, as in any other procedures whereby liberty and citizens’ rights were seriously being interfered with, there to be opportunities for knowing, at that point and in gisted form, the reasons for retention. If there are going to be closed procedures, the special advocate procedure should be invoked. That is what this set of amendments seeks to do. Given the seriousness of this matter—because it is a great intrusion—I hope that, having had some time to reflect, this House, the Minister and the Government will decide that that is the proper way in which to deal with such a significant interference with citizens’ rights. I beg to move.

[Lord Bates]

My Lords, I am grateful to the noble Baroness for again moving the amendment. At the outset, I should say that I recognise absolutely that we are talking about a serious matter here and that there should be safeguards. The issue between us—and the Joint Committee, for that matter—is on whether we believe that the safeguards are indeed adequate.

The noble Baroness is suggesting that taking a passport for up to 30 days is an infringement of liberty, and we accept that. However, for reasons that she pre-empted, we do not accept that that is equivalent to the pre-charge detention arrangements under Schedule 8 to the 2000 Act. This is very much a disruption technique. Of course we recognise that this is an infringement and it needs to be carefully monitored. Her amendment would name an extension of the seizure period a “warrant of further retention”, and seeks to draw an analogy with the Act to which I have just referred. I hope that noble Lords will agree that this is not an appropriate analogy, for the following reasons.

Individuals subject to this power will remain at liberty. Their passport privileges are not removed permanently. During the period that the police hold that person’s passport, the police and others need to work diligently and expeditiously to investigate further the nature of the information. Due to the nature of the hearing envisaged in a number of the amendments in this group, the court would need to provide for closed material proceedings with the appointment of special advocates. As the House will know, closed material proceedings are resource intensive; it would be challenging, if not impossible, for such a hearing to take place within that initial seizure period. Indeed, by the time that it is heard, the travel documents might already have been returned, or alternative disruption action might have been taken. This power is already subject to considerable safeguards, which are proportionate to the level of interference.

Let me briefly reiterate the measures in place to ensure that this power will be used in a fair, reasonable and lawful manner. First, the reasonable suspicion test must be met. I will summarise the points because they also relate to the previous group. This is a clear threshold that is well understood by the police to justify the exercise of the power. At the point of seizure, the individual will be informed that his or her travel documents are to be seized because there are reasonable grounds to suspect that he or she is intending to travel overseas for the purpose of involvement in terrorism-related activity outside the UK. The disclosure of any further information would require careful consideration on a case-by-case basis.