Immigration Bill

Earl Attlee Excerpts

Wednesday 19th March 2014 Lords Chamber

[Baroness Hussein-Ece (LD)]

My Lords, I add my voice in support of the Amendment 81, tabled by my noble friend Lord Storey and moved by the noble Earl, Lord Listowel. The other day I read a Children’s Society report which was produced some time ago about the journey made by an asylum-seeking child. It is as relevant today as it was then. I should remind the Committee that when the United Kingdom ratified the United Nations Convention on the Rights of the Child back in 1991, it recognised that children are vulnerable and require additional care and protection, and acknowledged their autonomy as rights holders in their own right under Article 3.

Later on, in Section 55 of the Borders, Citizenship and Immigration Act 2009, certain provisions were put in place to safeguard children. At the time, in their response to the Children’s Commissioner’s independent review, the Government made clear their commitment to,

“give due consideration to the UNCRC Articles when making new policy and legislation”.

They emphasised:

“At the centre of this Coalition Government’s thinking is a determination to see children and young people achieve to their full potential, and the desire to empower individuals to shape their own future”.

This should apply equally to children and young people subject to immigration control. This is really the heart of the issue. As has already been mentioned, the children who we are seeing come from well documented war-torn countries such as Afghanistan, Congo, Iraq, Iran and Eritrea. These children have often fled from these countries having seen family members killed and often having escaped being recruited as child soldiers. They have seen horrific things that we can only imagine and which none of our children, thankfully, will ever have to witness. However, they then have to navigate a system whereby they have to prove somehow that they are worthy of not being sent back once they get to the age of 17 and a half, after they have lived and been protected in this country for some years.

The phrase used here, which comes up time and again, is this “culture of disbelief” that they face when they have to navigate the system. Sometimes they are given a solicitor and, as my noble friend Lady Benjamin said very eloquently earlier, they have to rely on officials, usually from local authorities, who have a responsibility as corporate parents. However, often this is not very consistent and they find themselves—like most young people, who are very vulnerable—worried. Some of them are suffering from post-traumatic stress and all sorts of psychological problems due to what they have experienced but then have to prove that they should not be sent back and are worthy of being allowed to stay here and being given protection. We need to think very long and hard about the way we treat young people. It does not matter where they have come from—as my noble friend Lord Storey said so succinctly, they are still children. These are extremely vulnerable young people, and the other thing is that they are not huge in number. There is a perception that we are talking about vast numbers—we are not, but they are very vulnerable and distinct and their cases need to be given due care and diligence when they are looked at.

The amendment that the noble Lord, Lord Rosser, spoke to on guardianship is very important as well. That would guarantee that somebody is appointed who will be looking out for and speaking and advocating on behalf of young children. We have heard from social services departments, and I speak as a councillor and cabinet member for health and social services with particular responsibility for corporate parenting. I have met many social workers who were a bit overwhelmed by the amount of work they had to do and who felt they were subject to the legislation rather than being able to look at each individual case. I was not always satisfied that they were able to give the individual young people the care and advocacy that they needed, not because they were unwilling but because of pressures of work and sheer numbers in some inner-city areas. In particular, some very bright young people were offered university places and were unable to take them up. It was very difficult then for them to do anything further. It was almost as if their situation was parked and officials moved on to somebody else. I urge the Minister to think very carefully about this situation, where we are talking about very vulnerable young people.

[Earl Attlee (Con)]

My Lords, I am grateful to the noble Earl, Lord Listowel, for moving his amendment and to other noble Lords who have spoken in this debate. Amendment 81 would allow persons who entered the UK when they were children to continue to be provided with local authority support after they reached adulthood and had all their applications and appeals to stay refused but failed to leave. The noble Earl and others illustrated some of the cases that the noble Earl had in mind. Nevertheless, I would point out that our well developed system of justice and the rule of law has determined that these people should not be here.

Under the current legislation, automatic access to support and assistance stops if the person’s asylum claim and any appeals have been rejected. However, the legislation still allows support to continue where that is necessary to avoid a breach of the person’s human rights. This would include cases where the persons cannot return to their own countries through no fault of their own; for example, because they are too sick to travel or need time to obtain a necessary travel document. The Government remain committed to ensuring that failed asylum seekers leaving local authority care do not face an immediate or abrupt withdrawal of all support. In answer to my noble friend Lord Roberts, it is important that the consequences of the failure of their asylum claims are fully explained to them at the time. It is also important that human rights factors are properly assessed by the local authority in a consistent way. My noble friend Lady Hussein-Ece expressed some concern on this point.

I understand that the Children’s Commissioner has been looking at these issues and will shortly be issuing a report. The Government will consider the report very carefully. However, I think it is wrong in principle that adults who can reasonably be expected to return to their own country should retain access to welfare support from public funds if they refuse to do so.

My noble friend Lord Storey expertly raised the issue of age on arrival. The Committee will certainly need to consider whether the amendment creates obvious incentives for young people to claim, falsely, to be under 18 when they apply for asylum. My noble friend Lord Storey suggested that there is no evidence that the amendment would lead to more asylum seekers claiming to be children. As a simple matter of fact, many local authorities have to do age assessments because some asylum seekers falsely claim to be children. If people who claim asylum before the age of 18 are allowed indefinite support, this can only add to the problem.

I am grateful to my noble friend Lady Benjamin for the detailed way in which she spoke to her important Amendment 81A. It is not clear what this amendment would achieve for the really important people—the young people themselves—other than by being a great probing amendment. The criteria for making the decisions covered by the amendment are already known and publicly available. As I understand the proposed new clause, the reference to,

“young people … who have irregular immigration status”,

is meant to refer to a group of young people who are entitled to indefinite leave to remain or to British citizenship because their parents had that status but, for whatever reason, those parents never got round to pursuing the applications of that kind that would benefit their children. Some of those young people will also qualify to be here in their own right because of their own length of time spent in the United Kingdom.

Publishing a report will not give those children and young people what they need. What they need to do is to come forward and apply. There are very clear routes open to them. If they were born in this country and have lived here for 10 years with only short absences, there is provision for them to be registered as British citizens. They may also apply on the basis that their family life or private life is in the UK. For private life, there is special provision for a person under the age of 25 who has spent at least half their life living continuously in the UK; and for a person under 18 there is provision for someone who has lived continuously in the UK for seven years and for whom it would be unreasonable to expect them to leave. These are generous provisions and it is difficult not to regard most, if not all, the cases behind the amendment being included here.

In addition, we are willing to make available a named point of contact for them or for the charities and NGOs working with them to approach with personal applications. This will also allow us to make formal referrals to local authority children’s services on behalf of those who need support and assistance in that way. If some of them are in risky situations, as we are frequently told, these arrangements are by far the best for them and not some kind of blanket approval without contact with us.

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[Earl Attlee]

My Lords, I very carefully read through the noble Lord’s amendment—to the extent that I detected a typographical error. There were a lot of points, but, broadly, that is the objective. However, I cannot say at the Dispatch Box that every single provision will be covered.

[Baroness Lister of Burtersett]

I quite understand that, but could the Minister write to us afterwards to say exactly which elements of the amendments will be covered and which will not?

[Earl Attlee]

My Lords, I would be delighted to do that.

We are fully aware of the importance of getting support for trafficked children right and are wholly committed to doing so. It is crucial that we take the opportunity to look closely at how we achieve the best possible results for children. I hope that the Committee agree that it will be important that we learn lessons from this trial so that we get the right arrangements in place for this exceptionally vulnerable group of children.

Amendment 88 effectively holds the Government to ransom. My noble friend Lord Roberts asked about the availability of legal aid and suggested that not all asylum, trafficking and domestic violence claims receive legal aid. I reassure him that all asylum claims and appeals, and all applications for a right to enter or remain by victims of trafficking and victims of domestic violence, receive legal aid, subject to the usual means and merits test. As the Committee knows, the scope of the legal aid scheme has been decided by Parliament through the Legal Aid, Sentencing and Punishment of Offenders Act—LASPO. I do not believe it is advisable to reopen the issue here and I am sure that, in his heart, my noble friend Lord Roberts recognises that, too.

The noble Baroness, Lady Lister, when speaking to Amendment 88, suggested that the residence test should exempt all children. As she said, the Government responded to the JCHR report by extending the exceptions to the residence test in relation to children. The Government are satisfied that the proposals for the legal aid residence test are compliant with their obligations under the UN Convention on the Rights of the Child. I also wish the House to note that the residence test is not yet in force. Parliament will have the opportunity to consider the residence test when the relevant statutory instrument is laid before it.

Legal aid is and will remain available for the highest priority cases, such as asylum seekers or advice and damages claims for victims of trafficking. Children—or those who entered the UK as children—who fall into one of these groups are eligible for legal aid. It is right that limited funds should be targeted towards them. Therefore, only children and young adults who do not fall into one of those high-priority groups will not be eligible for legal aid, in line with LASPO. Children who are to be removed are well protected in the immigration system. In addition to the duties towards them imposed by the Children Act and the Borders, Citizenship and Immigration Act, in this Bill we add further protections—placing the Government’s policy of ending the detention of children on a statutory footing. In light of that, I hope that the noble Earl will feel able to withdraw his amendment and other noble Lords will not press theirs in due course.

[Lord Hylton (CB)]

Before my noble friend decides what to do with Amendment 81, I urge the Government most strongly to give maximum publicity to what they have just said: first, about no abrupt withdrawal of support for children in care who reach the age of 18; secondly, about the possibility of children who have been here for 10 years or more achieving British citizenship; and, finally, about there being perhaps now or certainly in future a named point of contact for children and young people in irregular migrant status. In passing, I thought the amendment of the noble Baroness, Lady Benjamin, rather too mild: something much stronger and clearer is needed.

[Earl Attlee]

My Lords, the noble Lord makes an important point. There is no point in having good arrangements if you keep them quiet. We need to make sure that everyone knows what arrangements have been put in place—and perhaps who is responsible for prodding the Government to do them.

[The Earl of Listowel]

My Lords, I am most grateful to the Minister for his careful reply. I would be grateful to know more about one particular matter; perhaps he will write to me about it. It is the situation where young people who have come to this country as children and then become adults are removed and get harsher treatment than those adults who exhaust the asylum process. I think that it occurs in situations where they have exceptional leave to remain. For some reason there is a technicality that means that young people leaving care can be more harshly treated than adults. I would be grateful if the Minister looked at that particular question and wrote to me on it. Perhaps there will be a chance before Report to discuss these issues around young people and children a bit further.

[Earl Attlee]

My Lords, in response to the noble Earl’s first point, while not agreeing to reflect upon it, I will make sure that I understand the issue.

[The Earl of Listowel]

I appreciate the Minister saying that. I will withdraw this amendment in a moment but want to thank the Minister for his careful response. I also thank all noble Lords who took part in this important debate. I am very grateful for their contributions, particularly that of the noble Baroness, Lady Lister, who drew our attention to the JCHR report on these matters, and that of the noble Baroness, Lady Benjamin, who talked about the very important work of Kids Company—which is so well respected in this area—and its concerns. I understand that a number of local authorities face real difficulties because they may choose to extend support to young people leaving care in this situation but cannot guarantee that they will be refunded for that support. They face difficulties there. Again, I thank the Minister for his reply. I will look at it carefully but suspect that I will come back on Report with a further amendment in this area.

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[Earl Attlee]

My Lords, I hope I did not give an indication that I would bring forward an amendment in that particular area.

[The Earl of Listowel]

I beg leave to withdraw the amendment.

Immigration Bill

Earl Attlee Excerpts

Monday 17th March 2014 Lords Chamber

[Lord Hylton (CB)]

My Lords, I support both amendments and congratulate the noble Lord, Lord Roberts, on tabling them. I am very impressed by the generosity of the British public in supporting both detainees and asylum seekers in many different ways—for example, the detainee support groups attached to almost every detention centre.

Regarding Amendment 72, is it the case that individuals have not been able to get to bail hearings simply because they are in extreme poverty? Bail hearings are one way of reducing the number of people in detention—and a good way, I suggest. The British public have shown their generosity by their willingness to provide bail in such cases.

[Earl Attlee (Con)]

My Lords, as the noble Earl, Lord Sandwich, pointed out, this is not a new issue. I am fairly sure that I have answered Oral Questions on it, and I do not recall experiencing any difficulties with the whole House. I would be happy to answer another Oral Question on this issue.

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[Baroness Lister of Burtersett]

I hope the Minister is not suggesting that the survivors of torture who were interviewed in the study were not somehow genuine. These are people who had been seen by clinicians who were convinced that they had been through a terrible time. The trouble is that their status takes time to sort out. Even if they are eventually given refugee status, sometimes the worst problems begin then because they have not been prepared for it.

[Earl Attlee]

I did accept, in the last words I said, that some cases from certain countries can take a long time to determine, but in the case of the failed asylum seekers, they have failed to convince the courts that they have a good case.

[Lord Avebury]

My Lords, does my noble friend not recognise that there are probably hundreds of thousands of failed asylum seekers who cannot be returned to their countries of origin and who are left destitute in this country because they are unable to work? Does he not think that in those cases, such as the refugees from Iran who are not accepted back by their country of origin, it is ridiculous to allow them to fester here for years without work?

[Earl Attlee]

My Lords, they are failed asylum seekers, and it is their choice to stay in the United Kingdom.

[Lord Avebury]

No, that is not true. I am sorry, my Lords. I was talking about the people who cannot return to their countries of origin and whom the Home Office recognises are stopped from returning to their countries of origin by reasons of the decision of their state. In the case of Iran, for example, there are thousands of asylum seekers who are prevented from returning to their country of origin because the state will not allow them to.

[Earl Attlee]

My Lords, I accept that there are some people in the class that my noble friend describes.

My noble friend Lady Williams talked about supporting a family on £5 a day—I cannot recall exactly what she said—but the payment levels for asylum seekers with children are much higher. A family with two children receives approximately £170 per week. Accommodation is also provided, with utilities—electricity and gas—provided free.

Amendment 72 would make the support given to failed asylum seekers and persons on bail, known as Section 4 support, the same as the support given to asylum seekers—Section 95 support. This is inappropriate, as the types of assistance are different and serve different purposes.

The support that we provide to asylum seekers enables us to meet international obligations. However, there are no obligations routinely to assist failed asylum seekers, the vast majority of whom can reasonably be expected to avoid the consequences of destitution by returning to their own countries—although I am mindful of my exchange with my noble friend Lord Avebury. Exceptions are made only where there is an unavoidable obstacle preventing the person’s immediate departure; for example, if they are too sick to travel, need time to obtain a necessary travel document or have made further submissions relating to their asylum claim. These arrangements ensure that the individuals do not suffer inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights as a result of being left homeless or without support.

We also use Section 4 to provide accommodation to persons released from immigration detention on bail. The provision of accommodation in this instance is solely to avoid the person being unnecessarily detained through lack of a suitable bail address. Section 4 cases are provided with a weekly allowance to cover their essential living needs provided they move into accommodation supplied by the Home Office. Existing legislation explicitly prevents the allowance being provided in cash.

My noble friend Lord Roberts referred to the limitation as to the retailers involved. In my personal experience, supermarkets provide better value for money than many corner shops. The value and flexibility of the allowance is rightly less than the allowances provided under Section 95. Section 4 support is a temporary fix for people who are not asylum seekers and in nearly all cases need to make arrangements to go home.

The noble Baroness, Lady Lister, referred to the situation in other European countries. She will be aware that these countries have different legal systems and that this country is a very attractive destination.

In answer to my noble friend Lady Williams, I fear that I will be unable to recommend to my right honourable friend the Secretary of State that she change the policy, for reasons that I have given. In light of these points, I hope that my noble friend Lord Roberts will agree not to press his amendments.

[Lord Macdonald of River Glaven (LD)]

Before the Minister sits down, will he respond directly to the suggestion made by the noble Lord, Lord Dubs, that the purpose of the present policy is to make life in the United Kingdom so unattractive for these vulnerable people that they leave?

[Earl Attlee]

My Lords, no. The purpose of the current policy is to deter economic migration, because people would be able to come here, claim asylum and after a while be able to work. With this policy, we can deter economic migration through the asylum route and therefore properly determine the genuine cases.

[Baroness Lister of Burtersett]

Will the Minister answer my question about the assurance given to Julian Huppert by the Minister in the Commons that he would look into the suggestion that it could be cheaper to have one asylum support system rather than two separate systems? Perhaps I may point out on the “corner shop versus supermarket” issue that not everyone has a supermarket in easy walking distance and that asylum seekers would not have the money to get to the supermarket.

[Earl Attlee]

The noble Baroness may make a valid point about the supermarket and the corner shop, but we are talking about operational details here. I will write to her if there is anything that I should add on that point. She may be right that to do what she suggests might make for a more economic system, but it would have the undesirable effect of encouraging a flood of economic migrants through the asylum route, which is why this Government and the previous Government have adhered to the current policy.

[Baroness Hamwee]

My Lords, perhaps I may add markets to the mix of supermarkets, corner shops and all the rest of it. The noble Earl might find that they are the cheapest of all, but cannot be accessed. I also put into the noble Earl’s mind, perhaps for the future, the therapeutic value of being able to work.

[Earl Attlee]

The noble Baroness makes an extremely important point. I am well aware of it, which is why asylum seekers are able to do voluntary work.

[Lord Roberts of Llandudno]

My Lords, I remind the noble Earl, Lord Attlee, of an answer he gave me some months ago when he said that the intention was to make it very uncomfortable for asylum seekers to stay here and to work here. If he looks it up in Hansard, he will remember that comment.

Do the Government accept the equality of people in this sphere? Do they accept that a child is a child, whether they are Welsh or Scottish—well, I must not say that after last Saturday? Children and families need respect. Is not this refusal to allow the parents to work after six months denying children and others that very status in society? Another question that I asked the Minister was: how many conversations have taken place with those European countries that allow asylum seekers to work after six months or less? Have the Government asked for the comments or experience of those countries? If they manage it, why cannot we?

Is not the whole issue that if we say no for another 12 months, it adds to the cost and to the listlessness and helplessness of a person who wants to work but is not allowed to work to support his family? I also ask that that list of Azure card shops should be expanded. If he or others go to those shops, they will see the difference in prices. A person who has £5 a day or £36 a week would find it far more comfortable to support the family in low-cost shops. Also, when will we sign the European reception directive, which other countries have signed but we have not?

Having said that, we will again return to the issue at Report. I am sure that, by that time, the Minister and others on every side of the House will see the reasonableness of what we are asking for now. With that caveat, I beg leave to withdraw the amendment.

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[Baroness Smith of Basildon (Lab)]

My Lords, I have just a couple of questions on this group. The noble Earl may recall that at Second Reading, one thing that I said we would do in examining the Bill was, to look at first, the evidence base for bringing proposals forward and the workability of the measures proposed and, secondly, the impacts—including the unintended consequences. I would find it quite helpful if the noble Earl could say something about the reasons why this clause on driving licences has been brought forward.

On the point about the revocation of driving licences I would presume that someone who is in this country, even if they do not have a legal right to be here, is taking quite a responsible attitude if they have a driving licence. It means that they would probably have insurance. If that driving licence is then revoked, their insurance will also be revoked. Does that not cause a significant problem for other drivers on the UK’s roads if they are involved in an accident with a car whose driver, because of the revocation, has no licence at that point and whose insurance will have been revoked as well? It would be helpful to hear whether any thought has been given to that.

In terms of looking at the problems on our roads for those who are not entitled to be here, if the noble Earl were to do a straw test of members of the public, I think the issue causing them the most concern would be that of foreign cars being in this country for what is obviously longer than the six months that they are entitled to be before they are reregistered. Their drivers commit numerous offences on the roads, knowing full well that no one is going to track them down or do anything about it. The Government are taking action to bring us into line with the Irish Republic on driving offences but no action seems to be being taken regarding other countries. Can the noble Earl comment on why that matter is not being dealt with while that of driving licences is? That would be helpful in trying to understand the purpose of this clause.

[Earl Attlee]

My Lords, perhaps I might say a few words about Clause 41. The ability to drive in the UK is an important aspect of the quality of life for many UK residents and a privilege extended to many lawful migrants. A UK licence is used not only to drive but to secure employment and a range of services, as often it is used as proof of identity. There is no reason why the privilege of a UK driving licence should be extended to migrants who come to the UK only for short periods, have no leave or are here unlawfully. The EU directives in this area already require member states to ensure that applicants for licences are normally resident in the state of application. Those who come to the UK only for short periods of less than six months, those who have no leave and those who are illegally present in the UK should not be able to obtain a UK driving licence. This has been the Government’s policy since a Written Ministerial Statement on 25 March 2010 by the then Secretary of State for Transport, the noble Lord, Lord Adonis. This policy has been adopted by the Driver and Vehicle Licensing Agency and the Driver and Vehicle Agency in Northern Ireland.

It is equally wrong that migrants who have obtained a UK driving licence and then overstayed their leave in the UK should be able to continue using that licence. There are no current powers to remove this privilege. Clause 42 will remedy this: it will provide a new power to revoke a UK driving licence held by a licence holder who is unlawfully present in the UK. It will also create a criminal offence to fail without reasonable excuse to surrender a revoked driving licence.

I turn to the amendments tabled in respect of Clauses 41 and 42. Regarding Amendments 72A, 72B and 72E, asylum seekers should not be able to obtain the advantage of a UK driving licence until granted leave. This would encourage economic migrants to misuse the asylum system to the detriment of genuine asylum seekers. I fear that I can be no more helpful than I was for the previous amendment. Driving is indeed an ideal route to employment for migrants, but only when they have acquired the right to be here. My noble friend Lord Avebury again raised the issue of failed asylum seekers who cannot go home. It may be a difficult issue, but it is not a good reason for agreeing to open the floodgates to encourage asylum seekers.

The Government do not intend to seek blanket revocations of driving licences and asylum seekers complying with the immigration process who already hold a licence will not generally face this sanction. Refugees will be able to obtain a UK driving licence provided they meet the relevant requirements.

On Amendments 72C and 72F, the grant of a licence is currently, and will remain, an administrative process. A person refused a licence on the grounds that they do not satisfy the residency requirements may make representations to the Home Office or reapply for the licence with the relevant proof of identity. Allowing a right of appeal direct to the courts against a decision not to issue a licence will simply drive up costs for all involved.

Turning now to Amendments 72D and 72G, an appeal against a decision to revoke or grant a licence is not the appropriate place to consider the merits of an immigration claim. This should be done via an immigration route for which appropriate appeals mechanisms already exist. It is not appropriate to allow a court hearing an appeal to consider a change of circumstances following revocation. For the affected person, the easiest and cheapest remedy is to apply for a new licence having obtained the necessary immigration leave.

The noble Baroness, Lady Smith, talked about the difficulty of a motorist having no licence, resulting in the motorist having no insurance either. I agree with the circumstances described. The police will not necessarily detect this by checking the automatic number plate recognition system, under which uninsured drivers can be detected; I have seen that happen. I accept that it will be detected only if the police actually stop the motorist in question, but that is an unintended consequence and there is little that can be done about it.

[Baroness Smith of Basildon]

I thank the Minister for that helpful explanation. Does this not then fall into the category of unintended consequences? The noble Lord says that the only time it will come to light is if the police stop the vehicle for some other reason. That is not the only time it will come to light. If that driver is involved in an accident in which they are at fault, the other driver will be unable to claim any compensation or on their insurance. The UK driver, going about their lawful business, will be disadvantaged by such a policy.

[Earl Attlee]

I agree with the facts as described by the noble Baroness. She will of course be aware of the Motor Insurers’ Bureau scheme, which provides cover where someone has an accident with an uninsured motorist.

[Baroness Smith of Basildon]

Can the noble Earl assure me that the Government have been in contact with the Motor Insurers’ Bureau, and that it would in fact cover those kinds of circumstances, where the Government withdraw a licence and therefore insurance from somebody who had been insured?

[Earl Attlee]

My Lords, the situation is no different from that of a young tearaway motorist who loses their licence because they are banned, and then continues to drive without insurance. It is just another category of someone who is driving illegally.

I have listened carefully to what noble Lords have to say, but I have to stand my ground and hope that my noble friend will feel able to withdraw her amendment in due course.

[Lord Avebury]

My Lords, can the Minister tell your Lordships how many asylum seekers who failed their appeals but are left here because of their inability to return to their country of origin there are? Can he say for what period they are granted temporary leave to remain? Is it more or less than 185 days?

[Earl Attlee]

My Lords, the noble Lord is asking me a detailed question about failed asylum seekers who cannot go home. I will gladly write to him with full details.

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[Earl Attlee]

My Lords, I am terrified to think of what I might have done.

[Baroness Hamwee]

The Minister might have added to the list of items for Report. I will look at what he has said. For the moment, I will say only that I very much regret the turn that the language of the debate has taken this afternoon, with floodgates, and the conflation of asylum seekers and economic migrants. However, we are not debating that, so I will not test the Committee’s patience by taking that further. I beg leave to withdraw the amendment.

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[Baroness Hamwee]

My Lords, this is a short amendment, which asks a short question. Schedule 7 deals with immigration advisers and immigration service providers and includes paragraphs about fees for registration. Paragraph 3(2)(b) will write into the legislation provision for the waiver of all or part of a specified fee in particular cases. The Explanatory Memorandum to the Bill indicates that the Government “plans”—that is the word used—to use the power to require the Immigration Services Commissioner,

“to waive the registration fee in relation to advisers who do not charge for their services”.

My amendment would put in a waiver in the case of an applicant which is a charity or a non-profit making organisation.

Of course, I do not disbelieve what is in the Explanatory Memorandum, but I would like to have the assurance in the legislation that the small charities and non-profit making organisations, which I suspect limp from one week to the next—I do not say that at all disparagingly—and could use a great deal more funding than they have, can know that they will not be charged for registering to give the advice which many of them so helpfully give. I beg to move.

[Earl Attlee]

My Lords, I hope that on this occasion I can delight my noble friend Lady Hamwee on this amendment.

Amendment 73A seeks to define the organisations which will benefit from an exemption from paying a registration fee to the Immigration Services Commissioner. I can assure the Committee that there is no intention to add a financial burden to charities, voluntary organisations or other non-profit making organisations that offer immigration advice and services.

The Government understand that if these organisations were to be charged a fee, these measures could restrict the ability of such organisations to provide services and this would have an impact on the availability of free immigration advice for those not able to pay. The intention is to continue the principle of exempting advisers who do not charge a fee for services from paying the OISC a registration fee. The discretion conferred on the commissioner in the original clause in the Bill will be consistent with the discretion that currently exists in determining exempt status.

The current application process for exemption requires the commissioner to examine the type of organisation, its status as a non-profit making organisation and its charging policy. The actions will continue to be carried out and will be part of the new registration application process.

Subject to parliamentary approval, the Government will lay an order, as provided by paragraph 3 of the schedule, to specify that those organisations which do not charge for services will not have to pay fees when they apply for registration or reapply for registration. The Government do not want the Act to include a definition of organisations not required to pay a fee because such a level of detail is not necessary for this legislation and such definitions could be open to interpretation in a manner not intended. I hope I have satisfied my noble friend and that she will feel able to withdraw the amendment.

[Baroness Hamwee]

My Lords, I am grateful to my noble friend. When I see the statutory instrument, I may be delighted. I beg leave to withdraw the amendment.

Immigration Bill

Earl Attlee Excerpts

Wednesday 12th March 2014 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I want to make just a brief observation and ask a quick question. I am quite curious about the analysis of the costs and benefits of this proposal. The point that I want to make is similar to that made by the noble Lord, Lord Avebury. What is the extent of the problem that the Government are trying to resolve? My understanding is that many people on low or irregular incomes find it quite difficult to access bank services in the first place. Is there is a significant problem here that the Government are seeking to address?

I also notice that the clause is headed, “Prohibition on opening current accounts for disqualified persons”. It is not a prohibition on holding a bank account. What if somebody legally opens a bank account while they have leave to remain but their leave to remain is then revoked or expires? What action is the bank supposed to take in those circumstances? The very helpful guidance from the Home Office says that this is to ensure that there is a reduced risk of extending credit to individuals who are likely to be removed from the country at short notice. I should have thought that those whose leave to remain was revoked or had expired would be in that position. If the noble Earl could answer those questions, it would be helpful.

[Earl Attlee (Con)]

My Lords, I am grateful to my noble friend Lady Hamwee for the clear and succinct way in which she spoke to her Amendments 66G to 66L. These amendments seek to make various revisions to the bank accounts provisions. The objective of these provisions is to make it much more difficult for people to operate in the UK if they do not have the appropriate immigration status to be here.

Amendment 66G would amend Clause 35(2), which sets out the group of people who may be disqualified from opening an account. This amendment would specifically add to this group asylum applicants who have an outstanding claim. I am not convinced that that is what my noble friend intended. However, I can confirm that the policy intention is not to prevent these people opening a current account. The details of persons who are liable to removal and who have exhausted all their appeal rights will be the only ones shared with CIFAS, the specified anti-fraud organisation. By definition, this will not include persons with outstanding asylum applications and appeals.

My noble friend Lord Avebury asked about CIFAS. It is already a recognised checking agency and has been selected because we believe that it is the best organisation to perform this function. I will write to my noble friend with further details about that.

My noble friend also talked about the cost of these checks. First, I make it clear that a customer applying to open a bank account will not notice any difference, as these will just be checks that the banks do electronically with CIFAS. Because they are done electronically with an existing organisation, there will not be significant extra costs.

Amendment 66H would insert the word “reasonably” into the definition of a disqualified person. This amendment is unnecessary. As a matter of general administrative law, the Secretary of State is obliged to act reasonably, as pointed out by my noble friend. If he did not act reasonably, I am sure that he could be challenged in the courts by means of judicial review.

Amendment 66J would create a right to challenge or appeal against the refusal of a bank or building society to open a current account. The refusal of an account for a disqualified person by the bank or building society is mandatory and flows directly from an individual’s immigration status and the Secretary of State’s decision to disqualify the individual from opening an account. It remains open to individuals to apply via the immigration system to regularise their status or appeal through that route as appropriate. We do not need to create a fresh appeals mechanism here. However, I want to provide reassurance that if any details given to CIFAS are incorrect or become out of date, an individual would be able to complain directly to the Home Office. In answer to the noble Baroness, Lady Smith, the prohibition is on opening an account, not having an account. If I am incorrect on that, I will write to the noble Baroness.

If there is an error at CIFAS, the Home Office would then have a legal obligation under the Data Protection Act 1998 to correct it. The Home Office exercises considerable care over the quality of the data it shares with CIFAS and has systems in place to regularly update CIFAS records if someone’s status changes. From over 100,000 cases notified to CIFAS since 2012, I am aware of only one complaint being made to the Home Office.

Amendment 66K would require the Treasury to make regulations enabling the Financial Conduct Authority to make arrangements for monitoring and enforcing compliance. The amendment is not necessary, as I can assure the Committee that we will make such regulations.

Amendment 66L would leave out the words “in particular” from Clause 36(2)(b), which refers to provisions of the Financial Services and Markets Act 2000 to which the aforementioned regulations may apply. The words “in particular” are intended to make it clear that the list of provisions is not exhaustive, and they follow similar provisions in LASPO. The list is simply intended to give a clearer sense of the provisions that the regulations are intended to cover.

In short, my noble friend Lord Avebury expressed concerns about whether these measures were appropriate. These proposals do not breach human rights legislation; they will not impact on a person’s ability to provide themselves with the basic necessities, nor prevent them interacting with the world around them. This measure is necessary and proportionate; it supports immigration control which is a legitimate aim. My noble friend was asking broadly what would be done to ensure that the measures do not have the effect of turning the individuals concerned into vulnerable people. These individuals will still be able to conduct everyday transactions using cash, but I heard the noble Lord express concern about people’s supply of cash mounting up. In the past he has chided me about the relatively limited amounts of money supplied under Section 4 support to failed asylum seekers. The measures will make it more difficult for them to obtain loans and conduct a settled life in the UK, but it will not make it impossible for them to exist.

I hope that I have reassured the Committee that these amendments, while useful for seeking assurance, are not necessary, and I hope that my noble friend will feel free to withdraw them.

[Baroness Hamwee]

My Lords, to pick up on the phrase my noble friend has just used about cash mounting up, that is not the point that my noble friend Lord Avebury was making. He was talking about the cash that one might have in one’s pocket immediately upon collecting two weeks’ money. It is quite a lot when you receive it but it has to be eked out over two weeks.

[Earl Attlee]

My Lords, is the noble Baroness talking about support under Section 4 or Section 95? If it is under Section 95, the person will still have an outstanding claim and will therefore be able to open a bank account. If I am wrong on that, I will, of course, write.

[Baroness Hamwee]

That is helpful. I am grateful. On the issue of the Secretary of State acting reasonably, I was seeking the criteria. I am grateful for the detail of the Minister’s responses. Obviously I need to read them, as one always does, against my questions and against Clause 38, which gives the Treasury quite wide, but not unlimited, powers to amend what will be Sections 35 to 37. The practicalities and practice of this, as my noble friend will understand, concern us. However, I am grateful for the answers and I beg leave to withdraw the amendment.

Immigration Bill

Earl Attlee Excerpts

Monday 10th March 2014 Lords Chamber

Amendment 49 withdrawn.

[Earl Attlee (Con)]

My Lords, I beg to move that the House do now adjourn—I mean, that the House be resumed.

House resumed.

Immigration Bill

Earl Attlee Excerpts

Monday 3rd March 2014 Lords Chamber

[Earl Attlee]

My Lords, it is in order for the noble Lord, Lord Judd, to speak.

[Lord Judd]

My Lords, I am very grateful to the Minister for his response to my observations on unaccompanied children. I wonder whether it would be possible for the Government to make provision whereby it was required that every unaccompanied child subject to a removal process should have a qualified and transparently independent counsellor specifically allocated to them to guide them through what may be a nightmare situation.

--- Later in debate ---

[Baroness Hamwee]

My Lords, when I looked at Clause 5—“detained” or “liable to be detained”—the question that arose in my mind was, “How do you know someone’s liable to be detained unless all the processes including any appeal rights have actually been pursued?”. I have two amendments in this group. Amendment 23 would leave out the second part of the new subsection (1A) introduced by Clause 8. The provision in Clause 8 is that biometric information means,

“information about external characteristics (including in particular … )”.

Paragraph (b) then refers to,

“any other information about a person’s physical characteristics”.

Well, what could those be if they are not the external physical characteristics in subsection (1A)(a)? I cannot imagine that they are internal physical characteristics. I am quite confused about what subsection (1A)(b) might mean when read with subsection (1A)(a). That is quite apart from the fact that I have a rather natural and automatic dislike for not spelling out on the face of the Bill anything that could be spelled out.

Amendment 24 would take out of new Section 8(3)(c) introduced by Clause 10 the reference to “injury”. We are told in subsection (3) that the regulations may include provision to be used for certain purposes, of which paragraph (c) is,

“in connection with identifying persons who have died, or are suffering from illness or injury”.

I assume, and I hope the Minister can confirm this, that the reference to death or illness is because of public health considerations. Why then is it necessary to refer to injury? I would be interested to know what purpose this is to serve.

[Earl Attlee]

My Lords, Clause 5 amends paragraph 18 of Schedule 2 to the Immigration Act 1971 to include persons who are liable to be detained. This will allow immigration officers to check the fingerprints of persons they suspect to be illegal immigrants where there is a question about their identity. The existing power allows for fingerprints to be taken only from persons who have been detained under immigration powers.

The ability to establish an identity is an essential requirement for immigration officers when undertaking immigration enforcement operations. Unless identity is established it is not possible to remove or deport illegal immigrants. At present, where immigration officers encounter people whom they suspect to be illegal immigrants and have doubts about their identity, they can check the person’s fingerprints only with their consent or following the person’s arrest. In some instances this can lead to unnecessary arrests or result in illegal immigrants not being detected. In answer to the noble Lord, Lord Rosser, surely the Committee does not want innocent people going about their lawful business to be arrested. Secondly, if the suspect does not appear to understand English, how can they give informed consent to have their fingerprints taken?

This power is intended to reflect the conditions under which the police operate. Prior to the changes made to the Police and Criminal Evidence Act 1984 in 2005, the police also needed consent to check fingerprints where a person had not been arrested. The amendment has enabled the police to make fingerprint checks without the need to arrest individuals who are suspected of committing a criminal offence and whose identity might otherwise not be readily ascertained or verified.

This clause will bring immigration officers’ administrative enforcement powers more into line with police powers. The power to check fingerprints will be limited to the purpose of verifying identity as part of an immigration enforcement investigation. The fingerprints will not be retained but rather immediately electronically checked against the immigration biometric database. If there is an existing record, this will confirm the person’s identity and potentially assist the immigration officer to ascertain the person’s immigration status. This will help avoid unnecessary arrests, allowing those legitimately in the UK to go about their business, while quickly identifying illegal immigrants.

I want to assure noble Lords that this power does not mean that immigration officers will be able to stop anyone they encounter. The person required to provide fingerprints for checking must be liable to detention under the immigration Acts. In practice this means that the immigration officer must have reasonable grounds for suspecting that they might be liable for removal from the UK. There will not be any blanket testing of people just because they look foreign. I hope that answers the question from my noble friend Baroness Hamwee about the term “liable to detention”. As I understand it, it is not a new term.

Clause 6 is intended to improve the levels of assurance about persons naturalising or registering as British citizens and to ensure that the identity of British citizens who apply for their first UK passport can be properly identified. Amendment 22 would weaken these proposals.

The power is intended to protect new British citizens from having their identity stolen by impostors by enabling a photograph submitted as part of a passport application to be checked against the new citizen’s record. If we destroy new citizens’ photographs before they obtain a passport, HM Passport Office would be less capable of confirming their identity. It would also expose HM Passport Office to fraudulent applications for British passports.

As observed by the noble Lord, Lord Rosser, over 90% of new British citizens make a passport application within one year, so very few new citizens will have their photograph retained for more than a year. I accept that this will result in a small minority of new British citizens who decide against applying for a British passport having their photograph retained for a longer period as a consequence of these provisions. However, retaining the photograph will be useful to them in protecting their identities. In particular, new British citizens who retain their other nationalities may opt to have a certificate of entitlement affixed to their non-British passport instead of obtaining a British passport.

This document is a right of abode vignette—passport sticker—that can be issued to, in addition to British citizens, certain other categories of Commonwealth citizens who have a right of abode if they have not ceased to be Commonwealth citizens. It contains a photograph of the holder, which needs to be checked against the photographs that the person may have previously submitted as part of an immigration or nationality application. Holders of valid certificates of entitlement are not allowed to hold a British passport at the same time.

--- Later in debate ---

[Lord Rosser]

Perhaps I could add one or two comments. I thank the Minister for his reply and for the amount of information contained in it. I think that I recall him saying that “liable to be detained” was not a new phrase, but I am not sure how extensively it has been used before in immigration law.

I listened carefully to what he had to say about the situation of those whom immigration officers would not want to arrest. I will read his response carefully in Hansard, but at the moment I am not entirely clear what happens when someone whom they do not want to arrest declines to enable their fingerprints to be checked. I am not sure whether they will just be allowed to go or if in fact they will be arrested, which raises the question of why the existing powers are not adequate and why this new terminology is needed. As I say, I will read very carefully what he had to say.

Finally, I asked how many cases there have been in the past 12 months of people who would have had their fingerprints taken and checked if the “liable to be detained” provision in the Bill had been in force who could not have their fingerprints taken under the current wording in the Immigration Act 1971. I was not particularly expecting the Minister to come up with an instant response, but since that calculation is presumably the justification, at least in part, for this change in legislation that we are considering, I hope he will be able to provide me with an answer to that question later on.

[Earl Attlee]

My Lords, the main justification for Clause 5 is to avoid unnecessarily arresting people and to make it easier to carry out immigration checks. I described a situation where someone cannot speak English or pretends not to speak English. The noble Lord, Lord Rosser, asked what the definition of “liable to be detained” is and how many cases it will affect. If I have any information about how many cases, I will write to him. A person is liable to be detained if there are reasonable grounds for suspecting that removal directions may be given—that is, that the person requires leave to enter or remain but does not have it.

The noble Lord, Lord Rosser, also asked whether a person who refuses to give their prints can be arrested. They cannot be arrested solely for refusing to give fingerprints, as they can be taken only by consent. This may not give enough reasonable suspicion that a person may be an immigration offender.

The noble Baroness, Lady Hamwee, asked about the external examination. The whole point of these provisions is that the checks can be external examinations only.

[Lord Rosser]

Presumably immigration officers would not want to check a person’s fingerprints unless they had some suspicions in the first place or some doubts.

[Earl Attlee]

My Lords, they would not be able to check fingerprints unless they had some good reason to do so.

[Lord Rosser]

I thought the Minister said that you cannot arrest someone who refuses unless there is some suspicion. To do the check in the first place must mean that you have some suspicion and, therefore, if they refuse, you could arrest them.

[Earl Attlee]

My Lords, there would indeed be an element of suspicion if someone declined to give their fingerprints to be checked, but I suspect there would have to be other evidence as well. I will write to noble Lords to clarify these points.

[Baroness Hamwee]

Will the Minister include an explanation of the statutory basis on which new subsection (1A)(a) can be obtained by external examination only? I do not doubt what he says, but the way the provision is worded raises the question.

[Earl Attlee]

I will be delighted to write to the noble Baroness.

Clause 5 agreed.

Immigration Bill

Earl Attlee Excerpts

Monday 10th February 2014 Lords Chamber

[Lord Clinton-Davis (Lab)]

If the Bill is so perfect, why do so many organisations concerned with immigration oppose it, and oppose it with vigour?

[Earl Attlee (Con)]

My Lords, long experience shows that the best way of handling these debates is to allow my noble friend the Minister to lay out his stall, explaining how the Bill works, and then debate the Bill.

[Lord Taylor of Holbeach]

Yes, I am sure that noble Lords would expect me to extol the virtues of the Bill—they would be sorely disappointed if I failed to do so. It will be for noble Lords in this House to discuss its provisions, but some of the commentary that I have read over the past few days on the Bill bears no relation to the Bill as drafted, or indeed to the intention of the Government. If I may give an example, claims that we intend to turn GPs into immigration officers are untrue. Claims that communicable diseases will spread like wildfire and that emergency care will be denied are far-fetched. Nothing in the Bill changes processes in our front-line health services.

Part 4 of the Bill is about tackling sham marriages and civil partnerships. These are entered into by a couple who are not in a genuine relationship for the purposes of circumventing immigration controls. They are a significant problem, as this House will recognise. The Bill will enable more of these cases to be identified, investigated and prevented from gaining an immigration advantage.

As the noble Lord, Lord Clinton-Davis, has said, a lot has been said about this Bill and a lot more will be said. I know that this House will give it serious scrutiny and I would expect nothing less. While we do that, I hope that we will separate myth from reality and spin from substance. The Bill renews the legal foundations for proper enforcement of our immigration laws. That enforcement is necessary to build public trust in the system. It is also necessary to enable us to reap the benefits of migration as a nation. I commend the Bill to the House. I beg to move.

Anti-social Behaviour, Crime and Policing Bill

Earl Attlee Excerpts

Wednesday 20th November 2013 Lords Chamber

Moved by

[Earl Attlee]

That the House do again resolve itself into a Committee on the Bill.

[Baroness Smith of Basildon (Lab)]

My Lords, may I raise a point about the further consideration of the Bill today? At 6.03 pm yesterday, we received quite a lengthy letter from the Minister with amendments that I am told are to be debated today. Is it appropriate to receive amendments at such late notice for debate the following day?

Undercover Policing

Earl Attlee Excerpts

Monday 24th June 2013 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, there is no doubting the seriousness of these allegations, nor indeed the determination of the Home Office, and the Home Secretary in particular, to expedite investigations and report the conclusions of those investigations to Parliament. I emphasise that elements of the inquiries in Operation Herne, the Creedon investigation, will be reported to the Home Secretary and in turn to Parliament as the sections of those investigations are concluded. A Statement will be made to the House before it rises in the summer on the particular aspects that were mentioned by the noble Baroness.

I think it is true to say that police officers are just as appalled as Members of this House at these latest allegations which, if they are true, suggest a mindset that existed in those days, quite some time ago now, which sought to discredit victims. That is an intolerable thing for policing to accept. The Home Office is determined to pursue these matters.

There has been some criticism. I was in the other place earlier and heard the Opposition there suggest that perhaps what we need is one big investigation. I think that the current investigations are actually making considerable progress. The burden of the new allegations will, of course, add to the work that needs to be done. We will make sure that the work is properly resourced and that Parliament hears about the progress of the reports.

Mark Ellison QC has indicated to the Home Secretary that the inquiry of his team is going much wider than just using Metropolitan Police Service files. Because of that, and because of the allegations that are involved, the inquiry is going to take longer to come to its conclusions, but it hopes to report in the late autumn. The Ellison review is working with other investigations. The allegations made in the media today will form part of Ellison’s task, as well as forming part of Mick Creedon’s own investigations through Operation Herne.

I hope I can reassure the noble Baroness that we understand her determination to get to the bottom of this, but I think that the police as a profession want to do so as well, to make sure that we know how these things happened in the past and that there is no risk of them happening in this day and age.

[Earl Attlee]

My Lords, for the benefit of the House, perhaps I may remind noble Lords that short questions should be put to the Minister in order that my noble friend can answer as many as possible.

Police: Performance Indicator Management

Earl Attlee Excerpts

Tuesday 19th March 2013 Grand Committee

[Lord Whitty]

My Lords, I will make one or two of the same points as the noble Earl, Lord Lytton. Unlike some other Members who are going to speak today, I do not have great experience or expertise in this field. With one or two exceptions, my relationship with the police has been generally okay. I am merely a concerned citizen here, in that I really want to know what is happening to crime in this country. Politically, both this and the previous Government congratulated themselves on a falling level of crime. I did not seriously query this claim until recently.

Of course, government and police claims of crime reduction have always been treated with a degree of cynicism by the general public. Public perception of crime rates in all neighbourhoods tends to exaggerate the degree of actual crime. Of course, there are horrendous crimes, which receive massive publicity. Although harrowing to those immediately concerned, as I know, these are probably not typical. There is a general public perception that the level of particularly low-level crime is higher than the police and the Government claim.

Sometimes the police go over the top. I am told that the South Wales Police notepaper says that crime is the lowest for the past 30 years. I doubt that anybody in south Wales actually believes that—nor would people in Dorset or the City of Westminster. There is a credibility issue underlying this, and some of it has a good statistical basis because of the way in which the police record crime as against, for example, the crime survey and the way that victims see their complaints. So there are some rational explanations for it.

However, I was quite alarmed to see that the ONS itself was seriously querying the degree of crime reduction. That is probably where I am. I probably logically accept, despite the psychology of it, that there has been some reduction, but it is the degree. There was quite a significant difference between the police figures and the other figures to which the ONS referred. The ONS gave a number of quite good reasons for this but at the same time I became aware of the work of Dr Rodger Patrick, to whom the noble Earl, Lord Lytton, has already referred.

According to Dr Patrick’s analysis, some crimes are no longer recorded on the basis of reporting by victims or the public but on the evidential assessment of police officers and on the balance of probability. That was always the case with third party reporting but used not to be the case where victims themselves reported. Other cases are lumped together and given the same crime number to appear only once in the statistics. Minor crimes can go unreported altogether: some are on a local crime data list; some are subject to informal caution and are cleared, one way or another, and do not get into the national statistics.

Meanwhile, on the detection side, issues such as “take into consideration cases”, to which the noble Earl, Lord Lytton, referred, are sometimes lumped together as solved or cleared as a result of a deal with a defendant or prisoner, without real conviction and due process. I have read parts of Dr Patrick’s analysis, and I have no way in which to assess the validity of all this or how widespread it is. But it is also true—and this is in the title of the debate—that with some crimes under the last Government there was a drastic fall, following the introduction of targets and performance management criteria. That might mean different things: it might suggest that the target culture was instantly incredibly successful in increasing overall efficiency against targets; it might suggest that the priorities and resources were, as in other public services, concentrated on those areas that were measured and defined as targets while other areas were left underresourced; or it might mean—and this is something that we regrettably know about in bits of the NHS—that figures were reclassified or manipulated to exaggerate performance improvement.

What we need to know from the Minister tonight is two-fold. Does he recognise the figures on descriptions of malpractices in individual police forces to which the noble Earl referred? What arrangements for quality control and challenge of statistics coming from individual police forces are there in England and Wales? Secondly, I recognise that the Home Office and the ONS give guidance to the police on how to record crime, but who checks the compliance? Is it the police authority, the new police commissioners or the Inspectorate of Constabulary? What is the role of the Police Support Unit—or is it the ACPO high command, or the Home Office itself? How does it work and, in particular, how far is it guided, checked and quality controlled by non-police bodies, or is the guidance and advice from ACPO to chief officers dominant? Like the noble Earl, I have some concerns about the role of ACPO in this area.

There are also reports that those who query the current system, whether from within the police force, from community bodies or even from the Home Office, suffer repercussions—they have been victimised or moved to other duties. Is the Minister aware of such allegations, and what would he instruct the Home Office to do about such allegations? I have to phrase this in the form of questions, partly because of the difficulty of proof and partly, frankly, because of the litigiousness of some of those who defend their position. But these are questions that the Ministers in the Home Office and, perhaps, the Ministry of Justice, need to ask.

The present Secretary of State has made two key decisions in relation to crime statistics and performance. First, she transferred responsibility for oversight and reporting of crime statistics after 2011 from the Home Office to the ONS. That is a very sensible move, which will probably pay off in the long run. However, the ONS analysis is only as good as the statistics that come in. Unless we can improve the accuracy and integrity of all sources of information and eliminate natural bias and contrived distortions, the ONS and Ministers will still be working on flawed systems of statistical records, and hence a flawed evidence base. Secondly, the Home Secretary determined that the police service should move away from target-based performance indicators and, in the light of experience, we would probably think that was the right move as well. But local commissioners will still need authentic, undistorted statistics on which to make their decisions. If not, we are going to end up in the worst of possible worlds, where there are no performance targets, but the police go on recording the same statistics in the same way.

It is time that we had a proper analysis of this—the review by the ONS goes just so far. But as the noble Earl said, unless we are confident in the statistics that we receive, bad statistics will distort the basis for operational decisions by chief officers and strategic decisions by police commissioners and distort the very basis on which Home Office Ministers and officials make national policy in England and Wales. We need a new, expert review, probably judge-led, without an axe to grind, distinct and separate from the police force itself, and we need it soon.

[Earl Attlee]

Can the noble Lord conclude his remarks very soon, because he is completely out of time?

[Lord Whitty]

If I am completely out of time, I shall just say that a push for such an outcome needs to start from the proceedings here today.

Crime and Courts Bill [HL]

Earl Attlee Excerpts

Wednesday 12th December 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I shall speak to Amendments 118H, 118K and 118L. I say to the Minister at the outset that we totally support what the Government seek to achieve here. We appreciate that this is not a drugs amendment, it is a road safety measure, but the Minister will have heard from the comments already made that there is support for the Government’s intention but also some concerns about how it would operate in practice against those who are not the legislation’s targets. Drug-driving is a problem that we are all incredibly keen to see addressed. I refer to a case that the Minister will know well, of 14 year-old Lillian Groves, who was run over and killed by a driver who had taken drugs. This illustrates the importance of ensuring that the police have every tool available to tackle those who take illegal drugs and then drive, creating a danger to themselves and others. My concerns are not about the principle of what the Government seek to achieve, but—as the noble Lord, Lord Walton, and the other noble Baronesses have said—its implementation. We need to ensure that the legislation hits the right target and does not affect the innocent on prescribed medication. We have to get it right.

I thank the Minister for the briefings that he has provided and for the opportunity to meet him and his officials. I hope he can say enough today to satisfy us that the drafting of these clauses will not unnecessarily impact on those whom it is not intended to affect. The amendments I have put forward largely replicate those tabled in Committee and seek to strengthen the defence for individuals on prescription drugs who, through a simple error and no fault of their own, have been found above a certain limit. Amendment 118H would delete the existing new Section 5A(3)(b) of the Road Traffic Act, which requires individuals on prescription medication to “show that” they took the prescribed drug in accordance with any and all instructions, both from the doctor and manufacturer. There are serious concerns that requiring positive proof that the individual complied with all advice is pretty onerous. Instead we propose Amendment 118K, which would mean that individuals could not use their prescription as a defence if it was proved that they had taken the dosage knowingly —the point made by the noble Baroness—contrary to any advice given by a doctor or supplier. That additional wording in brackets picks up on the points about manufacturer’s instructions being required to be considered as part of the prescriber’s or supplier’s advice, rather than placing the burden on the patient to read and understand all and any such instructions. The noble Lord, Lord Walton of Detchant, made the same point. We share his concern about how fair it is for patients on long-term pain medication to find themselves in such a situation and having to show that they have complied with absolutely every medical requirement.

We are worried that we risk criminalising individuals on medication on the basis of a technicality, simply for failing to correctly interpret an element of the patient information leaflet. It could be a slight, insignificant deviation from the instructions. The noble Baroness, Lady Hamwee, made the point about the timing of when a medication could be taken. What if the advice from a doctor differs from that on the manufacturer’s small print? Under the proposed new subsection (4)(a), patients would have to have done something positive, contrary to the instructions they had received, rather than have to positively prove that they acted in accordance with advice. It changes the emphasis of the proof.

New subsection (4) also focuses on what is probably the main medical aspect of the period when the body is getting used to the prescribed drug in the system. This has been mentioned by other noble Lords. Deleting new subsection (3)(b) and the use solely of the caveat in new subsection (4) then fits more appropriately with the evidential requirements of new subsection (5). Patients would be able to show that they have a prescription. They could take a copy of it or carry a letter from the prescriber. Evidence could be produced at a police station. However, the evidential burden of new subsection (3)(b) on patients if they had to “show that” they followed any and all instructions would be considerable. Clearly we are not seeking to protect anyone who is unfit to drive, but although the Government intend this new offence to mirror drink-driving limit offences, taking prescription medication that would otherwise be illegal does not automatically make someone unfit to drive; I am thinking specifically about pain medication.

As an example of why I am concerned, and to take what could happen to somebody sequentially, if an individual on medication has perhaps been rear-ended through no fault of their own, the police would arrive and, currently, breathalyse both drivers. Under the new legislation, they would “drugalyse”, or drug test, both drivers. The test might indicate that they are over the limit, but it does not tell the officer undertaking the test how far over the limit they are. So what would happen next to that individual? If they say that they have a prescription for the medication they are taking but do not have the prescription with them, how can they prove that they have taken medication in accordance with medical advice and not taken illegal drugs? Would they be taken to the police station, where obviously at some point they would be able to prove that they have a prescription? That would clearly be an inconvenience and could be particularly distressing. We do not want to reach a situation where individuals are deterred from taking their medication—again I am thinking specifically about long-term pain relief—because some individuals would be more of a hazard without their pain-relief medication than if they were on it.

The Home Office has been developing roadside “drugalyser” tests for the past 10 years. Without these, the individual would have to be taken to a police station for testing. When do the Government expect roadside drug tests to be available to the police? Do the Government intend to implement the new offence before roadside drug tests are available? How often would they expect the test to be used? Considering their high cost, I presume that the police would undertake a breathalyser test first. How often would the Government expect roadside drug tests to be used in the same cases as a breathalyser? Also, looking through the information that has been supplied, any assessment of the proportion of cases in which the Government expect to find individuals below the alcohol limit but above the limit for a certain concentration of controlled substance was missing.

Despite the good intentions—which we support—what concerns me is that the details of how it will work in practice have not been worked through for those on prescription medication. I am grateful to the Minister for sending me the letter from the chair of the drug-driving panel, Dr Kim Wolff, which the noble Baroness, Lady Meacher, has also referred to. However, I am extremely disappointed that the expert panel has not been able to publish its interim report before this stage of the Bill, though I think Ministers indicated we would be able to get it. Clearly, the levels that the panel is likely to recommend—particularly in the case of prescribed drugs—and the rationale behind the recommendations would have been a huge help in our deliberations today. They may have clarified a number of the issues that I and other noble Lords have raised. What is encouraging is Dr Wolff’s assurance in her letter that:

“In considering what limits should be set for common prescription medication, the Panel has looked at normal therapeutic ranges used in prescriptions, compared to those found in addicts misusing medicines”.

In relation to morphine, she said that the panel,

“are considering a limit that is significantly above the average concentrations of morphine in blood found in cancer patients receiving long-term steady-state doses of morphine”.

However, Dr Wolff also states that the panel’s primary consideration is,

“clear scientific evidence of risk of road traffic accidents”,

and that in the case of, for instance, prescribed benzodiazepine drugs:

“risk is especially high during the first four weeks of treatment and is particularly increased when benzodiazepines are consumed in combination with alcohol”.

Here, Dr Wolff outlines the inherent difficulties in setting a blanket limit in the case of medicated drugs, because tolerance can change over time and is subject to variation by other factors. I suspect that the Minister will be unable to answer at this stage whether the panel, on the evidence so far, will set a limit for benzodiazepine much lower than the average level for someone on long-term drug use, because of the increased risk in the first four weeks of medication. However, that is an important consideration in the implementation of these clauses.

Much of how this will be implemented will hang on the recommendations that the panel makes, which we do not have available. How will it factor in the effects of mixing drugs with alcohol? Will it feel compelled to set the limit a lot lower than the average dosage because of the risk of increased road safety problems when the drug is mixed with alcohol—even a quantity of alcohol below the legal limit? Someone could be below the legal limit on drugs and below the legal limit of alcohol but still be a danger to themselves and other road users, because the Government’s offence does not provide—understandably, because we have not yet had the report of the panel—for a combined alcohol and drug limit for certain controlled substances.

We all want all drug drivers who are a danger taken off the roads. We totally support the Government’s aims. However, we need to ensure that we are going after the right people. I hope that the Minister can give some assurances that he will look again to reassure himself and this House about the defence in this group of clauses for people on prescription medication, to ensure that it is appropriate and fair; that he will not shut the door on ensuring that the legislation hits the right note; and that he will take away the comments made today.

I hope that the Minister can answer my final question clearly. Can he confirm that the Government would not consider it appropriate for any action to be taken against those on prescribed medication, unless it is clear that their driving is impaired?

[Earl Attlee]

My Lords, I recognise that the amendments relate to concerns about the Government’s approach to drug-driving and, in particular, how the new offence will affect drivers who take prescription or over-the-counter medicines. I am grateful to the noble Baroness, Lady Smith, for her recognition of the problem. I will try as hard as I can to reassure the House that your Lordships’ fears will not materialise.

First, I emphasise that any passengers would not be screened for drugs following a vehicle being stopped by the police and the driver being tested for drugs. The noble Baroness asked me a number of very good questions, and I will answer them first, before going into detail. She asked, in effect, how much discretion a policeman has to arrest for drug-driving. Whether an officer decides to arrest and continue an investigation, including carrying out an evidential blood test, once someone has proved positive in a drug screening test, will depend on the facts of a particular case. Officers will be aware of the statutory defence of taking a specified controlled drug in accordance with medical advice and prescription.

As for the CPS, in reaching a decision as to which cases to prosecute, Crown prosecutors must take into account the Code for Crown Prosecutors. The code includes a requirement that prosecutors should swiftly stop cases where the public interest clearly does not require prosecution. I will return to that in a moment.

The noble Baroness also asked me about publication of the expert panel report. The expert panel is independent of government. It is important that it takes the time that it needs. Advising on which drugs the new offence should cover and on limits to set for driving purposes are complicated issues which require careful consideration. The expert panel has considered a wide range of drugs and has needed to reconcile the available evidence from the UK and abroad. This means that it has taken longer than we anticipated for the panel to report. The Government intend to publish a copy of the report of the expert panel on drug-driving as soon as we are able after the report is finalised. Of course, we will not proceed further with the secondary legislation until we have the expert panel’s report.

The noble Baroness also asked me about roadside drug tests. The Government expect roadside drug test equipment to be available in 2014, when we anticipate bringing the new offence into force. We would expect breath tests to be conducted first, as they are quicker and easier. We cannot speculate on how many tests would be taken, as that is an operational matter for the police.

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[Baroness Smith of Basildon]

My Lords, I am sorry to intervene but I just want the noble Earl to clarify the point about the instructions. Proposed new Section 5A(3)(b) says that D, the person who has been arrested,

“took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied, and with any accompanying instructions (so far as consistent with any such directions) given by the manufacturer or distributor of the drug”.

Is the Minister absolutely clear in his comments today that the doctor’s instructions with the drugs would always override any manufacturer’s instructions and that that would be a defence in law?

[Earl Attlee]

My Lords, as I understand it, the doctor’s instructions will trump the leaflet. If I am wrong on that I will write. Also, the leaflet normally refers to the doctor’s advice so the leaflet would give the trumping authority to the doctor.

The medical defence places what is known as an “evidential” burden on a person accused of committing the offence. This means that the accused person must simply put forward enough evidence to “raise an issue” regarding the defence that is worth consideration by the court, following which it is for the prosecution to prove beyond reasonable doubt that the defence cannot be relied on.

I know that the noble Baroness, Lady Smith, and my noble friend Lady Hamwee are concerned that a patient who inadvertently deviates slightly from the recommended dosage might be unable to rely on the medical defence. I want to reassure the House that the Government and the independent panel will take into account the normal therapeutic ranges for medication when considering what limits should be set for drugs. This will reduce the risk of patients who take medical drugs correctly being affected by this legislation. The panel will be well aware of the risks pointed out by my noble friend Lady Hamwee. I would also like to point out that in the terms of reference, term 6 is:

“To establish the likelihood of whether these concentrations would be exceeded through prescribed or otherwise legally obtained drugs (as distinct from illicit drugs)”.

A small minority of individuals taking long-term medication at elevated concentrations could be in excess of the specified limit for a particular drug, as was so well explained to the House by the noble Lord, Lord Walton of Detchant. In most cases such users would only come to notice if their driving is impaired—when they can be dealt with under the existing offence in Section 4 of the Road Traffic Act 1988—or for some other reason requiring police action. Another point to note is that the Code for Crown Prosecutors specifically states that prosecutors “should swiftly stop cases”, as I have already mentioned.

Furthermore, the Government expect that the courts will take a sensible approach to the operation of the new offence. For example, a defendant seeking to rely on the medical defence may be afforded more or less leeway depending on the facts of a particular case, such as the nature of the medical advice provided, including the wording of any leaflet accompanying the medicine.

Finally, in Amendment 118GA the noble Baroness, Lady Meacher, has also proposed that primary legislation should include requirements for testing to be reliable and for the Government to set limits that are linked to road safety. We do not consider it necessary to set these requirements in legislation. First, the preliminary testing devices currently being developed would undergo a rigorous type approval process before being used for enforcement purposes. This type approval process is so rigorous that it is taking some time to secure approval and I have raised this issue with my right honourable friend the Secretary of State because we need this equipment in operation. However, it is vital to the integrity of our system of justice that the courts can rely on the evidence of the new equipment. Furthermore, evidentially testing using blood or urine specimens is already carried out for the enforcement of the existing drink and drug-driving offences without any express requirement for the testing to be reliable.

Secondly, we are clear that the purpose of the new offence is to improve road safety, as I have already stressed, so careful consideration will be given to the advice received from the expert panel and to the responses to the public consultation before setting any specified limits and regulations. The regulations would then need to be specifically approved by Parliament using the affirmative procedure. The new offence is intended to enable more effective law enforcement and to improve road safety by deterring drug-impaired driving and bringing more drug-impaired drivers to justice. In light of the points I have raised I hope the noble Baroness, Lady Meacher, will agree to withdraw her amendment and that my noble friend Lady Hamwee and the noble Baroness, Lady Smith, will not press their amendments. I have been asked many detailed questions. Where I have not answered them I will write, and no doubt another place will look very carefully at these provisions.

[Baroness Meacher]

I thank the Minister for his response. I remain completely unconvinced that there is any logic at all in differentiating between controlled and uncontrolled drugs. I would submit that the North committee, to which the Minister referred, had no awareness of the incredible flood of new substances coming into this country. It is a vast number. There were 65 new substances this year, 49 last year and 41 the year before. That changes the entire environment within which we work and Ministers may come to regret the idea that this legislation should also fail to take account of those changes.

[Earl Attlee]

My Lords, we asked the expert panel to consider the drugs that we thought were causing a road safety problem but the last thing we said was that it should consider any other drugs that it thinks necessary.

[Baroness Meacher]

I know that noble Lords do not want me to take any more time because people need to move on. My only other small point is that the Minister referred to risk as being the main indicator of the need for action rather than impairment. I would suggest that the two are incredibly closely related. The importance of impairment is to avoid discrimination against certain groups and the stopping of drivers in particular communities when there may be no indication of an impairment of driving. It is those matters which we should be aware of. That said, at this stage anyway, I will withdraw the amendment although I may come back at Third Reading because we still await the outcome of the expert panel’s deliberations.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I hope to be very brief on this amendment and on Amendment 118P. These amendments deal with the regulations which, as the noble Earl has assured the House, will not be proceeded with until a good deal more work is done. My first amendment would provide for a report from the Secretary of State about the,

“drug proposed to be specified and the limit proposed to be specified”,

before laying regulations. Like all other noble Lords who have taken an interest in this, I am very keen that the decision should be made on the basis of evidence. This amendment is to suggest that the evidence base should be in the public domain and easily accessed before we are asked to deal with regulations.

I said a few minutes ago that there is a huge array of drugs. I was quoting the noble Lord, Lord Henley, when I said that but, having seen that remark in Hansard, it struck me that it may be difficult to decide whether to support regulations that cover more than one drug or where there is concern about the limit applying to a particular drug. It would be very helpful to have regulations made a drug at a time so that the vote can be very clear when the matter comes before both Houses of Parliament. Following the points that have been made about the importance of controlling drug-driving, I hope that the House would be able to vote for the inclusion of a particular drug without jeopardising the inclusion of another if there is concern about one which is on a list or the limit for one which is on the list. I beg to move.

[Earl Attlee]

My Lords, I would point out first that these are very important clauses and it is right that the House looks carefully at them. I know that these amendments relate to concerns around how the Government will implement the new offence. Amendment 118N proposes that the Government should be required to publish a report regarding the controlled drugs and limits to be specified in regulations before such regulations are laid before Parliament. The Government do not consider that such a requirement is needed. Clause 29 already requires the Government to consult before specifying in regulations the drugs and limits for the new offence. The Government also intend to publish a copy of the report of the expert panel on drug driving shortly. I have already provided an explanation to the House on the reasons for its delay. The consultation will set out the evidence base for specifying particular controlled drugs and limits in regulations.

Amendment 118P proposes that individual sets of regulations should be drafted for each controlled drug to be covered by the new offence. I recognise the importance of considering carefully the specified limits for each controlled drug. That is why we will consult on the drugs to be included in the offence and the limits which should be specified. It will be open to anyone to respond to that consultation and their response will be considered carefully. Drafting a new set of regulations for each controlled drug would be time-consuming for the Government to prepare and for Parliament to consider, and would be likely to involve much unnecessary repetition. It could also make it more difficult for those seeking to use the legislation since there would be multiple sets of regulations to refer to, making the relevant law unnecessarily complex.

The Government therefore believe that it would be better for all concerned for a single set of regulations to be produced following consultation. In the event that the regulations were not approved by Parliament due to the inclusion of a particular specified drug or limit, the Government would amend the regulations and lay a further draft before Parliament for approval. In the light of the points I have raised, I hope that the noble Baroness, Lady Hamwee, will be willing to withdraw her amendment.

[Baroness Hamwee]

My Lords, for speed, I will not comment on that other than to thank the noble Earl. I beg leave to withdraw the amendment.