Data Protection Bill [HL]

Baroness Neville-Rolfe Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, I congratulate our Ministers and the Government on bringing this Bill to our House in this timely way. It is extremely technical—and herein lies a danger, because it is also very important and covers matters that can be expected to become even more important over time. We must therefore put aside the temptation to think that technical matters are somehow of lesser importance, simply because we do not fully understand them. I declare an interest as the Minister responsible when the EU parent of this Bill, the GDPR, was adopted. While I saw it as a necessary single market measure and a modernising one, there were a number of provisions that we could have done without, mostly introduced by the European Parliament, such as requiring a specific age of consent, which the Government have now proposed should be 13 in the UK, in line with the United States.

In contrast, as always, our UK approach is market opening. We want a competitive, growing Europe, and we want the digital revolution, with its subset artificial intelligence, to continue to stoke growth. But some in the EU have always been most concerned with giving citizens back control over their personal data, an issues that assumed particular importance following the release of documents involving Chancellor Merkel by WikiLeaks. To be fair, the UK has also in this case stated its wish to simplify the regulatory environment for business, and we need to make sure that that actually happens here in the UK. Committee will give us the chance to talk about the merits of the digital revolution and its darker side, which we touched on during the excellent debate led by the noble Baroness, Lady Lane-Fox. I shall not go over that ground again now, but I add one point to the story told by the noble Lord, Lord Mitchell: my Google Maps app now highlights the location of future engagements in my diary. So that is pretty challenging.

I shall touch as others have done on three concerns. According to the Federation of Small Businesses, the measures represent a significant step up in the scope of data protection obligations. High-risk undertakings could phase additional costs of £75,000 a year from the GDPR. The MoJ did an impact assessment in 2012, which is no doubt an underestimate, since it did not take account of the changes made by the European Parliament, which estimated the cost at £260 million in 2018-19 and £310 million by 2025-26. I am not even sure if that covers charities or public organisations or others who have expressed concerns to me about the costs and the duties imposed. Then there are the costs of the various provisions in the Bill, many levelling up data protection measures outside the scope of the GDPR. It is less confusing, I accept, but also more costly to all concerned.

The truth is that overregulation is a plague that hits productivity. Small businesses are suffering already from a combination of measures that are justified individually—pension auto-enrolment, business rates and the living wage—but together can threaten viability at a time of Brexit uncertainty. We must do all we can to come to an honest estimate of the costs and minimise the burden of the new measures in this legislation.

Also, I know that CACI, one of our leading market analysis companies working for top brands such as John Lewis and Vodafone, thinks that the provisions in the Bill are needlessly gold-plated. Imperial College has contacted me about the criminalisation of the re-identification of anonymised data, which it thinks will needlessly make more difficult the vital security work that it and others do.

The noble Lord, Lord Patel, and the noble Baroness, Lady Manningham-Buller, were concerned about being able to contact people at risk where scientific advance made new treatments available—a provision that surely should be covered by the research exemption.

The second issue is complication. It is a long and complicated Bill. We need good guidance for business on its duties—old and new, GDPR and Data Protection Bill—in a simple new form and made available in the best modern way: online. I suggest that—unlike the current ICO site—it should be written by a journalist who is an expert in social media. The Minister might also consider the merits of online training and testing in the new rules. I should probably declare an interest: we used it in 2011 at Tesco for the Bribery Act and at the IPO for a simple explanation of compliance with intellectual property legislation.

The third issue is scrutiny. I am afraid that, as is usual with modern legislation, there are wide enabling powers in the Bill that will allow much burdensome and contentious subordinate detail to be introduced without much scrutiny. The British Medical Association is very concerned about this in relation to patient confidentiality. Clause 15, according to the excellent Library Note, would allow the amendment or repeal of derogations in the Bill by an affirmative resolution SI, thereby shifting control over the legal basis for processing personal data from Parliament to the Executive. Since the overall approach to the Bill is consensual, this is the moment to take a stand on the issue of powers and take time to provide for better scrutiny and to limit the delegated powers in the Bill. Such a model could be useful elsewhere—not least in the Brexit process.

There are two other things I must mention on which my noble friend may be able to provide some reassurance. First, I now sit on the European Union Committee. I am sorry that duties there prevented me sitting through some of this important debate; we were taking important evidence on “no deal”. As the House knows, the committee is much concerned with the detail of Brexit. Data protection comes up a lot—almost as much as the other business concern, which is securing the continued flow of international talent. I would like some reassurance from my noble friend Lady Williams about the risks of Brexit in the data area. If there is no Brexit deal, will the measures that we are taking achieve equivalence—“adequacy”, in the jargon—so that we can continue to move data around? What international agreements on data are in place to protect us in the UK and our third-country investors? Under an agreed exit, which is my preference, is there a way that our regulator could continue to be part of the European data protection supervisory structure and attend the European Data Protection Board, as proposed by the noble Lord, Lord Jay of Ewelme, the esteemed interim chairman of our European Union Committee—or is that pie in the sky?

Secondly, there is a move among NGOs to add a provision for independent organisations to bring collective redress actions for data protection breaches. I am against this proposal. In 2015 we added such a provision to competition legislation—with some hesitation on my part. This provision needs to demonstrate its value before we add parallel provisions elsewhere. It is in everyone’s interests to have a vibrant economy, but business is already facing headwinds in many areas, notably because of the uncertainty surrounding Brexit. In future it will be subject to a much fiercer data protection enforcement regime under our proposals.

I have talked about the costs and others have mentioned the new duties and there will be maximum fines of up to 4% of turnover for data breaches, compared with £0.5 million at present. We certainly do not need yet another addition to the compensation culture. This could reduce sensible risk taking and perversely deter the good attitudes and timely actions to put things right that you see in responsible companies when they make a mistake. There is a real danger that the lawyers would get to take over in business and elsewhere and give the Bill a bad name. That would be unfortunate.

However, in conclusion, I welcome the positive aspects of this important Bill and the helpful attitude of our Ministers. I look forward to the opportunity of helping to improve it in its course through the House.

Serious Crime Bill [HL]

Baroness Neville-Rolfe Excerpts

Tuesday 15th July 2014 Lords Chamber

[The Earl of Listowel]

My Lords, I welcome this amendment. I would just like to highlight to your Lordships concerns about the availability of child and adolescent mental health services. In recent information, the mental health charity for young people Young Minds has drawn attention to the fact that,

“34 out of 51 … local authorities in England have reduced their CAMHS budget since 2010. Derby City Council reported a cut in its spending by 41% since 2010. … Overall, local authorities in London have cut their CAMHS budgets by 5% since 2010. 8 out of 12 councils … have reduced their CAMHS budgets”.

So there is a real concern that, although the principle is absolutely right here, the CAMHS services, which are so vital, have unfortunately often been cut. I was very pleased to meet, with members of the All-Party Parliamentary Group for Children, the honourable Mr Lamb MP, who is the Minister responsible for this area. It was very encouraging that he was aware that a lot of work needed to be done in this particular area. In addition, the Select Committee on Education in the other place is producing a report on child and adolescent mental health services, which I am sure many of us will look forward to—I believe it will be produced in October.

[Baroness Neville-Rolfe (Con)]

My Lords, I am sorry that other commitments prevented me from speaking at Second Reading on this important Bill, but I have followed its passage closely and I am very grateful to my noble friend the Minister for the briefings that he has given, which I have attended. I want to make one point on the new duty proposed by my noble friend Lady Brinton, and the same point applies—so I shall not repeat the point a second time—to the detailed proposal for mandatory reporting, which may be made by my noble friend Lady Walmsley. I am reassured that my noble friend Lady Brinton was suggesting that, to some extent, her amendment had an exploratory nature.

The point that I wanted to make is an appeal for balance and care on the new regulatory requirements that we put in this Bill. Obviously, I share the horror at recent cases of abuse and concern about inadequate enforcement in the past, which has led to many of the problems that have come to haunt us. However, I fear the imposition of bureaucratic new duties and associated offences on liaison or reporting—that outcome can often be achieved by a good service and by common sense. This Bill brings in a number of new measures, which are good, but we should not be labouring it with extra measures, which could have the perverse effect of preventing a focus on the vital areas needed. We need to ensure that the offences in the Bill are properly enforced in a focused way by those concerned. I would have a concern if we sought to write these amendments into the Bill. We should ask ourselves, as the Minister hinted that he would during his summer of reflection, exactly what is needed and what would be best, given the inevitably limited resources that you have in these very important areas.

Immigration Bill

Baroness Neville-Rolfe Excerpts

Monday 7th April 2014 Lords Chamber

[Lord Dubs (Lab)]

My Lords, I support the amendment with great enthusiasm and want to comment briefly on an interesting point made by the noble Lord, Lord McColl, and possibly by others as well. I serve on a committee of the British-Irish Parliamentary Assembly and towards the end of last autumn we produced a report on people trafficking. We covered all the jurisdictions—that is, England, Wales, Scotland, Northern Ireland, and indeed the Republic of Ireland—and one thing that came through very clearly was that children who are taken into care because they appear to have been trafficked too often disappear from their local authority care home. Nothing seems to be done about that. It may be that the numbers are small, and I very much hope that they are, but surely it is extremely serious if a child in such a vulnerable position is taken into what seems to be a safe environment and then disappears, presumably—we can only suspect this—because the traffickers have discovered where the child is and have persuaded, induced or compelled him or her to abscond. There appears to be no system—I may be wrong but my committee could not discover one—whereby local authorities are diligent enough to try to find out what is happening to these children. They may have done so from time to time but there seems to be a gap in what is going on. Therefore I look to the amendment in the realistic hope that a child trafficking guardian would use influence to lessen the likelihood of children disappearing from local authority care homes.

On the noble Lord’s point about the cost implication if a child is moved from one local authority to another, I do not understand why a child in the care of a local authority, with no obvious parents to care for him or her, would be moved from one local authority care home to another, although it might happen. Nor can I see a good reason why a child should leave the country, as has also been suggested. If a child is vulnerable and in care, surely everything must be done to ensure that the child’s well-being is looked after totally and that the child would be enabled to leave the country only if there were a proper basis for him or her to be looked after elsewhere; otherwise we are simply saying, “We are washing our hands of this child and never mind what happens to it”. Surely we would never dream of doing that.

I look at the amendment to see to what extent it will meet the need that I have just described. I think that, by and large, it would. It does not quite spell it out as clearly as I would like, but if we had a child trafficking guardian and the child was in a local authority care home, the guardian would know that the child was there and keep an eye on him. If the child were to disappear, the guardian would surely be among the first to ask, “What has happened? All steps must be taken to find the child”. Above all, it would help the local authority care home and the social workers to develop a better system so that children could not easily be induced or compelled away, or whatever happens to them. Even if the numbers are small, we are dealing with a serious problem. We always thought that once a child was in a care home the child was safe. I hope that this amendment, if passed, will make such children a little safer.

[Baroness Neville-Rolfe (Con)]

I had not intended to speak but I was concerned to hear about some of the disturbing individual cases of bad practice described by noble Lords.

Surely the prime public policy need is better enforcement by the police, supported by social services, of anti-child-trafficking laws and penalties to prevent these awful things happening. Does an adequate framework for such enforcement exist? This issue is highly relevant to Amendment 55A.

The issues would be better discussed and tackled separately in legislation that can look at both issues—perhaps in the draft modern slavery Bill. We should also take time to properly review the proposed provisions. I noted the well informed comments of the noble Baroness, Lady Howarth, about the role of volunteers and the point made by the noble Lord, Lord Northbourne, about costs. For these reasons we should not burden the Immigration Bill with this complex new issue but seek to find a way forward to consider it.

[Lord Cormack (Con)]

My Lords, we have clearly got to find a way forward. As my noble friend Lady Neville-Rolfe has just briefly and succinctly said, the question is whether it fits better into this Bill or into the anti-slavery Bill.

There is no more despicable thing than to exploit a child. One’s mind goes back to when I had the great good fortune in 1982 to be commissioned to write a short life of William Wilberforce to commemorate the 150th anniversary of his death and the 150th anniversary of the abolition of slavery throughout the British dominions in 1983. In researching that book I became totally convinced that William Wilberforce was indeed the greatest Back-Bencher in our history. He was a man who never held office of any sort and yet campaigned brilliantly and persistently over decades, first, to achieve the abolition of the slave trade in 1807 and then, over a quarter of a century later, the abolition of slavery itself. He heard the news of the passing of that Bill as he lay dying in his home.

That of course did not end the sort of social evils against which he had campaigned, and we all remember Fagin, the fictional character of Dickens, and how Mr Brownlow came to the rescue of Oliver Twist. We also remember the writings of Henry Mayhew in the articles under the heading, “London Labour and the London Poor”. I often think that we could do with a Mayhew and a Dickens today to point the moral and adorn the tale, as it were, by graphically describing the sort of evils to which my noble friend Lord McColl, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Royall of Blaisdon, have referred during the debate.

Immigration Bill

Baroness Neville-Rolfe Excerpts

Thursday 3rd April 2014 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, the debates on the landlord provisions in the Bill have been good. I thank noble Lords for highlighting a number of very important issues, including the noble Baroness, Lady Smith of Basildon, for her notion of the importance of workability for the scheme which we discussed in Committee. I also reiterate the appreciation of the Minister’s efforts that was expressed by the noble Lord, Lord Best.

I welcome the phased approach to implementation that the Minister has put forward in discussion. This will ensure that the system works in practice and is well communicated. I welcome the good length of time which has been left for the trial, the imaginative changes that have been made relating to students, and the various other commitments so elegantly summarised by the noble Lord, Lord Best. I would add the assurance that the Minister kindly gave in discussions we had, about a simple, useable website for landlords and tenants on the new rules.

However, it seems that the amendments would confine legislation to a pilot, so there would be no promise of legislation in this important area if the first phase worked, as we hope it will. That would strike at the heart of the Bill. Moreover, I think that my noble friend Lady Hamwee is wrong to highlight only the equality impact assessment. The burden on landlords, the way that enforcement works and the operation of the fines are also important considerations that we need to assess after the trial. For all these reasons, I encourage noble Lords to support the government amendments and to reject the other amendments before us.

[Baroness Lister of Burtersett (Lab)]

My Lords, in supporting Amendment 25 I will simply make two very brief points about what I hope the evaluation of the pilot will include. The helpful note from the Minister prior to today made clear that it will look at the impact on tenants, including the impact on vulnerable groups. I ask that children should be included among those vulnerable groups, given the fears about the implications for children’s rights under the UNCRC and about possible homelessness that have been voiced by the Joint Committee on Human Rights and others. There is also a possible knock-on effect on local authorities if, as feared, there is an increase in homelessness among families with children.

The second point refers to lodgers. I am not quite sure whether it was covered by the point made by the noble Lord, Lord Best, who mentioned landlords not having to check people who then move in. Will this include the tenants of landlords, or social tenants who take a lodger? Certainly in Committee it was said that they will be included. If they are included, it is very important that any pilot or any evaluation includes the impact on them. This could be a group of very vulnerable people, some of them affected by the bedroom tax, who take in a lodger in order to try to make up the shortfall from the bedroom tax. They probably do not think of themselves as landlords at all, and would then have to grapple with a long code of practice and act as mini-immigration officers. I fear that that may not work very well. Therefore, I hope that the evaluation will include that group.

Immigration Bill

Baroness Neville-Rolfe Excerpts

Wednesday 19th March 2014 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I rise to probe the Government’s intentions on fees following the questions that have been put by the noble Baroness, Lady Smith of Basildon, on Amendment 79F and in the other points raised. This is a useful consolidation of the rules and the powers on fees, but I have two questions that I hope my noble friend will be able to comment on. First, what are the Government’s plans for immigration and visa fees following the passage of this Bill? Secondly, will fees and future changes to fees be set out clearly on the government website which I hope the Government will establish so that, following the passage of this important Bill, everyone clearly understands the prevailing immigration and visa arrangements? Those are points about intention and about transparency.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, noble Lords have asked me quite a number of questions and I will do my best to show a techie side to my nature. Where I slip up, perhaps noble Lords will allow me to write. I am aware of the case mentioned by the noble Lord, Lord Ramsbotham. I will have to write to him because I cannot give him an authoritative answer on a point that is not directly to do with the amendments that we are considering today. In any event, I will make sure that I get a letter to him on that issue.

I will speak to Amendments 79F, 81B, 82A, 87ZG, 87ZH and 87ZJ, which have been grouped together. I will not mention Amendment 87ZD because that has not been spoken to.

Amendment 79F concerns fees. It fits slightly uneasily in this grouping, but I am sure that it is something that we want to address. The current legislative framework for setting and amending visa fees is slow and inflexible, and we are experiencing that at the moment. We had a statutory instrument in January, and later on next week we will debate the actual fee levels. This two-part process is not necessarily the most informative. It makes it difficult for the Home Office to respond to identified issues—and opportunities, because this is an important area of income generation for the Government.

For example, it does not allow us to introduce new premium services or amend fees up or down within a particular period. It has also been criticised in this House because the “menu” of immigration and visa services is debated separately from the prices of the things on the menu. As I have said, that seems a funny way of doing things. The fees measures in the Bill are meant to address both of those issues.

I say to the noble Lord, Lord Pannick—who queried transparency on this issue, as did my noble friend Lady Neville-Rolfe—that the whole point of this is to be more transparent and provide information on fees. The mandate to provide fees is an important thing to secure in Parliament. As I said, they are an important factor for the Home Office.

My noble friend Lady Hamwee made a number of technical points and I would like to thank her for advising me of them. The fees order will set out in relatively general terms the types of categories of fees that will be charged for. It will set the maximum and in some cases—although not all—the minimum levels for the fees that fall within each category. The order will be subject to the affirmative procedure. The regulations will then specify the precise fee for each product, which could stretch to several hundred different fees. This mirrors the current arrangements. For example, the current fees order states that we can charge for,

“a sponsor licence or renewal of such a licence”,

and the fees regulations specify all the different fees for each type of sponsor licence payable by the different categories of sponsor. Thus the detail included in the order and the regulations mirrors the current arrangements set out in Section 51 of the Immigration, Asylum and Nationality Act 2006 except in terms of the introduction of maximum, and in some cases minimum, fee levels into the order.

My noble friend went on to say that Clause 62(2) appears to require a fees order for all fees. She asked whether fees are chargeable outside of the specified functions. All chargeable functions must be set out in the fees order. The only caveat to normal treatment is set out in Clause 64:

“Power to charge fees for attendance services”.

She asked whether “any specified fee” under Clause 62(4) means each fee specified by a fees order. That is correct; it does. She assumed that Clause 62(10)(b) overrides subsection (8)(a)(ii), which requires a fee not to be less than the prescribed minimum, and that is correct. She also asked why subsection (10)(c) needed a failure to pay in the light of subsection (3). The consequences might mean the refusal of a visa in the future. Subsection (10)(b) relates to debt recovery in particular circumstances, such as where a payment is withdrawn once it has been processed and the application considered. Paragraph (c) ensures that we can provide that applications will not be considered if payment is not received. It also states that any other consequences for failing to pay must be set out in regulations. These provisions have been carried forward from current legislation.

My noble friend asked about costs and whether we can give an example of costs. Costs will be incurred by our commercial partners when, for example, providing visa services overseas, and they form part of the costs to the Home Office when providing services or processing applications. On Clause 62(13), she asked whether there are particular arrangements or ways to recover such things as the premium service. Yes, there are such arrangements. This subsection reflects that fees for the same function may vary depending on where and when they are delivered, and the specific service provided. It also reflects the fact that we may, in limited circumstances, charge different fees for the same product in different circumstances. We might, for example, enter into a reciprocal arrangement with another country by which we agree to offer a reduction in the visa fee to nationals of that country.

My noble friend put a question to me about Clause 62(4). This subsection is directed at the factors that the Secretary of State can consider in setting fees, taking into account costs and benefits to applicants. Subsections (4) and (6) are directed at the mechanics of the calculation, so that if the fee is being set out at a flat rate or by reference to an hourly rate, the reference to other factors is to give us flexibility in the future in order to charge, for example, with reference to a daily rate. My noble friend asked whether the rate is the hourly rate. Yes, it is, or there can be other factors. As I have just said, there can be a daily rate as set out above. I was also asked whether the calculation will involve an hourly rate to give the position/grade of the officers for whom a rate is charged. The grade of officers is not a relevant consideration when establishing an hourly rate. Where the grade of staff is relevant in establishing an estimated unit cost, it will form part of the calculation. This level of detail will not be set out in statutory instruments or a fees table.

My noble friend asked whether, where a fee is intended to exceed the cost, this will be made clear in the Explanatory Memorandum to the regulations. We will include the unit costs, as is currently the case. She asked whether the exceptions might allow for increases in a particular class of individuals. No, the exceptions relate to exemptions from payments; that is, waivers. The Home Office currently provides a number of exceptions in regard to fees including, for example, asylum applicants and children receiving local authority assistance, and there is no plan to withdraw the exceptions currently offered. This is complicated and I am sorry to have rattled it off but my noble friend did ask that I put it on the record. I hope the record has noted it and that I have reassured my noble friend.

Immigration Bill

Baroness Neville-Rolfe Excerpts

Monday 17th March 2014 Lords Chamber

[Lord Taylor of Holbeach]

Not at all. These are not customer service staff but designated persons who will have the authority to do the task of exit checks. They will be designated and trained to perform the basic checks required that will deliver the policy.

I do not think that I said that this would be rolled out. I said that we intended to have the checks in place by April 2015. That is the plan, and it is going according to plan. I hope that the Committee will accept that.

[Baroness Neville-Rolfe (Con)]

My Lords, will my noble friend comment as to whether this power will allow checks which might be appropriate in certain circumstances or whether the plan is to check the passport of every person leaving the UK? If I go to Düsseldorf, is British Airways in future going to be checking my immigration status? I think it would be helpful to have clarity as to the intention.

[Lord Taylor of Holbeach]

All I can is that if my noble friend is flying to Düsseldorf, she can expect to have her passport checked at that time. She will know that that is what is happening. There is no difference.

[Lord Taylor of Holbeach]

We are working with the airlines to find ways in which the existing advance passenger information can be incorporated into these checks. The advance passenger information provides only so much information. It is very useful and gives names, but it does not necessarily give the details of the individual’s passport or any visa requirements on that passport. That is a matter for examination, and the designated staff will be in a position to check that material at the time the person leaves the country.

[Baroness Neville-Rolfe]

My Lords, I am sure it would be helpful to understand this in a bit more detail because now you put the detail of your passport online when you order your ticket. The passport is not checked, except very summarily, when you get on to the flight. It really is an understanding of how this is going to happen. It may be that you are going to put more advance information online when you buy your ticket. I am very supportive in principle of the measures, but I think the logistics are very important.

[Lord Taylor of Holbeach]

The logistics are a matter for detailed planning with the airlines. What the Bill does—what this schedule provides for—is give those people who are responsible for dealing with this work the powers which at present they do not have. Advance passenger information already supports electronic texts on a large number of outward-bound journeys. API will be part of the exit checks solution along with other options, including checks conducted and data collected at the port of departure. These matters are being discussed so that this can be done efficiently, but API is a contributory element of this provision. As to the detail of how it is going to operate in every form of transport—every airport, railway station and port—I cannot possibly say at this stage. The powers of this Bill give those who will be challenged to perform this task the right to conduct those checks. Otherwise the checks would have to be done by immigration officers and we do not consider that this is an appropriate role for the Border Force.

Immigration Bill

Baroness Neville-Rolfe Excerpts

Wednesday 12th March 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

When the noble Lord, Lord Best, with his experience and expertise on housing, speaks on issues such as this, we all do well to listen. I am sure the Minister has taken on board his comments. On the issue he raised about students, the Minister has made clear that the Government will bring forward an amendment to address this issue, and I welcome that. I hope he will listen, take on board and incorporate the comments made by the noble Lord, Lord Best, which are very helpful indeed. I welcome the fact that the Minister has listened and intends to table an amendment. I also welcome this recognition by the Government of how clumsy this provision in the Bill is, and the consequences of that. I will not speak at length today, because I spoke at length on earlier amendments covering the same issues.

The amendments tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Best, address, as the noble Baroness, Lady Hamwee, said, the principle, practicality and workability of the provisions on landlords. Notwithstanding the comments of the noble Baroness, Lady Williams, the provisions do not just affect students, as I know she has acknowledged. These provisions on landlords will impact on many people to the detriment of many UK-born and British citizens and those who have a legal right to be here. I welcome the opportunity to look at some of the practicalities.

I notice that the impact assessment for the Bill comes straight to one of the points made by the noble Lord, Lord Best. Under the heading, “What is the problem under consideration? Why is government intervention necessary?”, the impact assessment comments:

“Housing is a key enabler of illegal migration. … Government intervention is necessary to deter illegal immigration”.

I disagree with that. The problem here—the concerns that have been raised in the amendments—is about whether it is the landlord’s role to take action to deter illegal immigration in the way that the Government suggest.

What I am concerned about is highlighted by the comments of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Best. It is becoming increasingly clear what limitations, pressures, problems and responsibilities these provisions are going to have and what impact they will have on those entitled to live and work in the UK, including UK citizens. The noble Lord, Lord Best, and the amendment of the noble Baroness, Lady Hamwee, have highlighted concerns regarding the impact on landlords.

The Government estimate in their impact assessment that they will take fines of £6.8 million from landlords over the next 10 years. The point has been made to the Minister that that could be seen as, and could well become, a disincentive to those who currently rent out. It would be helpful if the Minister could tell us whether, given that this also includes rooms which have been rented to lodgers, any assessment has been made on the impact of availability of homes or rooms to rent in the private rented sector. The noble Baroness, Lady Williams, mentioned the letters that she has received from estate agents wanting to rent or buy her property. Anybody who has lived in London will have regularly received such letters from companies offering vast amounts of money to rent a room. Can the Minister tell us whether any assessment has been undertaken of the impact that these proposals could have on the availability of properties or rooms to rent?

I will not go through each amendment—I raised a number of questions which I had on Monday—but the amendments would bring some clarity to the issue. If we take the questions raised by these amendments, those that will be raised in the next group of amendments, those that were raised in yesterday’s discussion on whether the clause should stand part of the Bill, and proposals for a pilot—I welcome the Minister’s letter and look forward to discussing the Government’s proposals for a pilot—it is increasingly clear that there is little to commend these clauses. I hope that, in his response today, the Minister is able to address the concerns that have been raised by noble Lords here today and some of those still outstanding from our previous debates.

[Baroness Neville-Rolfe (Con)]

My Lords, I will make two brief points. First, I welcome the broadening of the exemption for students which my noble friend outlined late in the debate on Monday. That seems to be relevant to Amendment 54ZZA, and we all look forward to seeing the new wording on Report, recognising the importance of our student population.

Secondly, I will comment on the idea outlined by the noble Lord, Lord Best, for an approved agency arrangement. This may be a good idea, but it will of course come at a cost. I would prefer a simple system that would allow landlords to do the checking themselves by having proper guidance for small landlords, both through the normal trade associations and guidance and on gov.uk. In that way enforcement can be minimised, fines avoided, and compliance maximised. The trial run that all noble Lords seemed to be agreed on in the earlier discussion in Committee should be used to test the workability of these important proposals.

Immigration Bill

Baroness Neville-Rolfe Excerpts

Monday 10th March 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I rise to speak to Amendment 56, which is tabled in the name of the noble and learned Lord, Lord Mackay of Drumadoon, who regrets that he cannot be in place. I have put my name to the amendment. I should make it clear that the matter with which it deals was drawn to our attention by the Law Society of Scotland. Just to set the background, it raises a short point in relation to Clause 28, the discrimination clause, to which the noble Baroness, Lady Smith, referred. That clause requires the Secretary of State to issue a code of practice with a view to ensuring that landlords or agents do not breach the provisions of the Equality Act 2010 so far as it is related to race when performing the obligations imposed on them by Chapter 1 of Part 3.

Clause 28(3) provides that:

“Before issuing the code (or a revised code) the Secretary of State must consult … the Commission for Equality and Human Rights … the Equality Commission for Northern Ireland”.

This amendment adds the Scottish Human Rights Commission to that list.

The reasoning behind the proposal can be put very shortly. It is that while Chapter 1, with which the code will be concerned, can be said to fall under the broad heading of immigration, which is a reserved matter for the Home Office, it also involves the devolved area of tenancies in relation to both social housing and private lettings between landlord and tenant. This is a sensitive area where the Article 8 right to family life and to respect for the person’s home is involved. It could also be argued that there is an Article 1, Protocol 1, right with regard to the landlord since he is having to take decisions about his own property.

The reference in Clause 28(3)(c) to,

“such persons representing the interests of landlords and tenants as the Secretary of State considers appropriate”,

suggests that there is room for adding something to the two particular bodies which are mentioned in the list set out in the clause. But it is suggested that, in order to complete the protection for the tenant’s rights under a devolved system, the inclusion of the Scottish Human Rights Commission would be appropriate. In a sense, it is a precautionary proposal because one has to be careful with regard both to the devolved system and to the risk of entrenching on the human rights of either party, which could give rise to very unfortunate consequences. The safer course, I respectfully suggest, is to include the Scottish Human Rights Commission so that it can offer its advice on the drafting of the code.

[Baroness Neville-Rolfe (Con)]

My Lords, I am sorry that prior engagements meant that I missed part of the Second Reading debate and could not speak then on this important Bill, which I support. I start by thanking my noble friend the Minister for the briefing he kindly provided on the residential tenancy provisions. I thank noble Lords opposite for initiating a debate on Clause 15, as it gives me the opportunity to probe the Government’s intentions and the “workability” of the provisions, to quote the noble Baroness.

I come at the subject as a business person, although I should declare an interest as the part-owner of a son’s flat which is currently let while he works out of London. We are asking the landlord community, nearly 2 million of us, to be part of the enforcement service for immigration. This is a new burden, as the noble Lord, Lord Best, has said. I understand that, for 62% of landlords, the required documentation is already available to satisfy the provisions. But that leaves a lot of people burdened for the first time, and required to keep copies and records that they do not have to worry about at present. I suspect that many will not know about the new rules and that they risk a civil penalty—£1,000 for the first offence, £3,000 thereafter— if they let to somebody whose papers are not in order.

I have a fear that the immigration authorities, in order to hit targets, could turn their attention to the easy task of cracking down on landlords who make a mistake, rather than the labyrinthine task of fighting illegal immigrants through the courts. Can my noble friend give landlords, especially small landlords who do not use expensive letting agencies, some comfort on these issues?

This is an important Bill, as I have said, and it is clearly essential that the new provisions are communicated really well. I have two thoughts on this and would be glad to hear the Minister’s reactions before we accept the provisions on landlords in Clause 15 and subsequent clauses. One is to use the web properly. We should place on gov.uk, in one user-friendly place, all the new rules for landlords, wherever they are set out, including the new online checking resource that is planned; briefing on the new biometric residence permits, which will ease landlords’ task of identification; the contact details for the phone inquiry line; and the 48-hour e-mail immigration checking service, which I agree will need to be adequately staffed, as the noble Lord, Lord Best, has said.

A different version could also be provided for tenants, including, perhaps—having listened to earlier debates—students, from whom I believe the paperwork requirements may be relatively light. It would be good for all of those people to know what the rules are and be able to check them in a simple place on the web. With modern techniques, prospective tenants could easily translate this briefing using an online app, obviating the need for expensive advice and lawyers.

Secondly, we should ask the landlords’ associations to prepare model clauses on the new immigration controls to be added to their standard shorthold lease. This would make it less likely that the new requirements were overlooked and the tenant would have to make an undertaking, which would be helpful, for example, in avoiding illegal sub-letting.

Finally, I would like to understand the Government’s intentions on timing, a point which links to Amendment 51 on a possible pilot. I believe that the Government plan to trial the new arrangements in a specific area or areas, which is an excellent idea that I would like to see applied to more areas of regulation. However, what would the timetable look like, and will the Government, as suggested by the noble Lords opposite, feel able to feed back to this House what they have learnt before the new system goes nationwide?

As a supporter of the Bill I am very keen that it should work well and not lead to an adverse reaction by small landlords or a reduction in available accommodation because people do not want to risk a fine or the hassle involved in the new scheme. The money-laundering laws were no doubt good in intent, but the repetitive bureaucracy they have introduced into every aspect of asset purchase certainly comes at a cost which affects UK productivity. I am keen to know whether we have learnt from this experience in establishing this important new regime for landlords.

[Baroness Hamwee]

My Lords, we have a number of amendments in this group: Amendments 56B, 56D, 56G, 87A and 89. As other noble Lords have said, there must be a pilot. I was glad to hear the noble Baroness, Lady Smith, say that she has come to the view that it should be a single pilot. However, like her, I agree that there is a world of difference between a pilot and phasing the rollout. I have a number of probing amendments in this group and some in later groups. I will deal with particular concerns amendment by amendment rather than speaking generally to the clause stand part.

On the pilot issue, in my mind this is not probing but something that has to happen, and in a single area. We are not talking about different housing markets; all noble Lords who spoke about this are concerned about what I wrote down as “bureaucracy”, although “administrative burden” is the politer way of putting it, is it not? Concerns were also expressed about discrimination and how landlords, tenants, agents, occupants—people who are not tenants in the sense in which we normally technically use that term, but who are actually tenants under the Bill as they are defined—would cope. We are also concerned about tenants and occupants who have a right to be in this country and to rent. “Workability” was the term used, which is very much in my mind. I will not take up the Committee’s time by quoting from evidence to the Public Bill Committee in the Commons, but I, like others, was struck by the sheer number of small landlords there are in this country.

We talked about a pilot, and that pilot needs to be assessed. Of course the public response to a pilot will be the overall assessment, but it occurred to me that we need a more rigorous critique, being clear and careful about the factors to be assessed and evaluated. Our Amendment 56G would require a report before the provisions come into force about the matters which should be assessed and the basis for evaluating their assessment. I have not attempted to spell those out at this point; that is a piece of work that needs to be quite careful and detailed, to be subject to discussion and to be discussed. I have said that a report should be laid before Parliament by your Lordships. I also agree that the code, which must seek to ensure against discrimination, should have parliamentary involvement.

On Amendment 56B, the dangers of discrimination are inherent—that is an issue in itself—also because of the implications for those who are entitled to be in the country and to rent, as well as for everybody else.

Your Lordships will understand that with a name like Hamwee and coming from the background that I do, I knew people whose names were not familiar to landlords when people of my generation were seeking to rent. Unlike the experience of the noble Lord, Lord Patel, when they turned up on the doorstep they were greeted with, “Oh gosh, you’re white!” That is just as bad a discrimination, of course.

I think that there should be a review following the pilot—that may be implicit in Clause 28, but I think that we should say so—and parliamentary process for each revision. Our Amendments 56B, 87A and 89 are not just little wrinkles at the end of the Bill but amount to a substantive amendment to require clear stages to the process. I can also see that we should consider a mechanism for Parliament requiring a view if that is not a review forthcoming from the Home Office, although I thought of that only yesterday.