Immigration Bill

Debate between Lord Ashton of Hyde and Lord Kennedy of Southwark

Monday 1st February 2016 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, the amendments in this group are all in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, and concern the regulations set out in Schedule 4 to the Bill about bank accounts and the processes around freezing orders. These amendments generally seek to improve this section of the Bill by bringing greater clarity to the process. Amendment 180 provides for the court to be able to award compensation, which seems reasonable to me. If a court has allowed an appeal, it has presumably determined that it was wrong to freeze the account in the first place. Taking into account how long the order was in force and the inconvenience to the person or body and being able to award an amount of compensation do not seem unreasonable, taking all relevant factors into account. If the noble Lord, Lord Ashton of Hyde, thinks that this is adequately covered in Section 40E(3)(b), it would be useful if he could say so when he responds to the debate.

I am not sure whether Amendment 182 has the desired effect when looking at Section 40C and the proposed amendment. Amendment 183 would increase the number of regulations that are subject to the affirmative resolution procedure, which is very welcome. I know the noble Lord, Lord Ashton, said recently that I never agree to negative procedures. That is just not the case. However, all sides of the House have voiced concern about the Bill, and the more regulations that are covered by the affirmative procedure, the better.

This section is on access to services. Clause 13 is about tenancies and landlords, who can potentially go to prison for up to five years and be fined. I could not find anything about directors of banks if bank accounts are opened improperly. What happens to bank directors? They seem to be able to get away scot free. It would be useful if the noble Lord will respond on what happens about bank accounts.

[Lord Ashton of Hyde (Con)]

Amendment 178 would require, as opposed to permit, provision for reasonable living and legal expenses to be included in a freezing order. Amendments 179 and 180 would permit an appeal to be made against an order that is no longer in force and allow courts to order compensation. Amendments 181 and 182 would mean freezing orders could be applied for or maintained only if that is overwhelmingly in the public interest. Amendment 183 would make nearly all the regulation-making powers in these provisions subject to the affirmative resolution procedure. I take back what I said about the noble Lord, Lord Kennedy: I am sure he addresses the affirmative and negative procedures with the due consideration they deserve, and he is eminently flexible.

The noble Lord will know that the Bank of England Bill, which is currently before the other place, puts in a new regime which gives specific responsibility to individual senior managers for various duties. Therefore, individual bank directors will not be able to escape as they have in the past.

[Lord Kennedy of Southwark]

May I press the Minister on this serious point? There are serious provisions for landlords who commit offences, but there is nothing about bank directors. The Minister should reflect on that and come back with regulations. I know he is busy on another Bill, but this is an important matter.

[Lord Ashton of Hyde]

I absolutely agree that it is an important matter. I do not necessarily think that this is the place for it, given that this is an immigration Bill, but I will certainly reflect, along with my noble friend the Minister, on what he said. But it may not be something for this Bill.

Significant safeguards against error are built into the bank account provisions. We already share with banks details of illegal migrants who are liable to removal or deportation and have no open application or appeal. These data are subject to rigorous checks. There will be a further check under the new provisions before the bank takes action to close an account or the Home Office applies to freeze it—in which case, of course, a court is also involved.

As the code of practice will set out, applications for freezing orders will be reserved for a small number of cases with significant funds. The person’s circumstances, including the risk they pose to the public and their immigration history, will be carefully considered. I agree that it must be in the public interest to freeze an account, but not that the legislation needs to say so. We want people with no right to be here to leave the UK. Applying for and monitoring orders will involve a cost to the Government and the courts. They will only be used where we believe it to be necessary. This will be where a person’s history and behaviour make it both difficult and very desirable to remove them. They will also have to have enough money to make freezing it until their departure a significant incentive to leave.

Freezing orders will not cause destitution. The court has a broad discretion to make exceptions, with reasonable living and legal expenses explicitly included. In some cases another source of funds may mean that such provision is not required. Standard provision for such expenses will normally be included when an order is first applied for. Affected persons can apply to the court to have an order varied or discharged, and the Home Office can support an application where it agrees with it. This would allow orders to be swiftly varied on the papers without a hearing.

Courts can consider complicated circumstances, and there is discretion as to which accounts are included. Further detail will be set out in rules of court and guidance. It is appropriate to provide for an appeal to a higher court, but it would be wasteful where an order is not in force. Nor do we believe that it is necessary to make provision for compensation. The risk of an order being erroneously imposed is extremely small. In addition to the checks outlined above, the court will have to be convinced that the order is appropriate and proportionate. I have already explained how it may be swiftly varied if necessary.

I turn to Amendment 183. Key regulation-making powers in these provisions are already subject to the affirmative resolution procedure. Of those subject to the negative procedure, all but one concern matters of administrative detail. The Government continue to work with representatives of the financial services sector to ensure that these provisions are effective without imposing an excessive burden on business. The remaining regulation-making power is to bring into force the code of practice on when a freezing order will be applied for. It is right that the code is laid before Parliament, so that the Government’s intentions for the orders are clear, but ultimately it will be the court that decides if a freezing order is made. The negative procedure is therefore appropriate. The Delegated Powers Committee has made no criticism of the powers in this schedule and has recommended no changes.

The noble Lord, Lord Kennedy, asked about new Section 40E(3), which I confirm would allow a court to order compensation on appeal. However, there is no route to compensation if an order is lifted before it is appealed. The noble Baroness, Lady Hamwee, asked how an account closure can be challenged if the Home Office data were wrong. Individuals whose accounts are subject to closure will be informed by the bank of the reason, provided it is lawful to do so. If, despite all the checks, a person still considers that they are lawfully present, and that incorrect information has been provided, they will be given the information they need to contact the Home Office swiftly so that any error can be rectified. As is currently the case with data provided to Cifas, the Home Office will be able to correct any error in real time—as the noble Baroness mentioned—so that the person’s details will be immediately removed from the data which are shared with the banks.

The noble Baroness also talked about the Joint Committee on Human Rights. I have explained why I do not think this is necessary, but we will consider with care any further representations from the committee.

There was a question on why there is compensation provision for errors made in closure orders but not in freezing orders. There will be repeated checks on the Home Office data and careful consideration of an individual’s circumstances before a freezing order is applied for. The court must also be convinced that the order is appropriate and proportionate. In the light of those comments, for the moment, I ask the noble Baroness to withdraw her amendment.

Immigration Bill

Debate between Lord Ashton of Hyde and Lord Kennedy of Southwark

Wednesday 20th January 2016 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, in response to the comments made by the noble Lord, Lord Alton of Liverpool, the Minister referred to the nature of voluntary work. I think we may need a little more detail on that, and perhaps it would be a good idea if he wrote to noble Lords. It is an important point because voluntary organisations and the people who work for them need to be very clear about their position on this matter.

[Lord Ashton of Hyde]

I completely agree that it is an important point and I will be happy to write to the noble Lord and others who have spoken on this after our session in Committee today.

[Lord Ashton of Hyde]

I take the point from the noble Lord, and that is why it would be better if our response was written down once we had had a chance to think about it carefully and get our definitions right. I will circulate the response and put a copy in the Library of the House so that voluntary organisations know where they are.

[Lord Kennedy of Southwark]

My Lords, I thank all noble Lords who have spoken in the debate. When applications for asylum take longer than six months, being allowed to work is a reasonable objective. I thank the noble Lord for his response and I look forward to the letter on the points we have just discussed. Some powerful speeches have been made, particularly by the noble Lord, Lord Alton of Liverpool, and many others. Surviving on £5 a day is an impossible hardship and it has to be endured for many months. As my noble friend Lady Lister said, the risk is that these people will be driven into the illegal work market where the risk of exploitation is even greater.

The noble Baroness, Lady Hamwee, mentioned the issue of the red doors in Middlesbrough. It is unbelievable and I hope that the Government will take very firm action, but let us make sure that we do not end up just painting all the doors blue next time. I make that point because this has to be dealt with properly. It is a scandal and an absolute disgrace. With that, and with my thanks for other comments made by the noble Lord, I beg leave to withdraw the amendment.

Immigration Bill

Debate between Lord Ashton of Hyde and Lord Kennedy of Southwark

Monday 18th January 2016 Lords Chamber

[Lord Ashton of Hyde]

My Lords, several noble Lords said right at the beginning of our debate that these government amendments came fairly late, but noble Lords on the opposition Benches are not the only ones to suffer from that. I will therefore have to ask the noble Baroness, Lady Hamwee, for her indulgence because I am afraid that her Amendment 18 was not contained within my speaking notes for this group. It is an amendment to our Amendment 17, but I do not have the details of how I should refute it with the power that I normally would. As my noble friend Lord Bates said right at the beginning, and as I think the noble Baroness mentioned, some of these issues may be revisited at times on Report—but I accept that that is not a very compelling argument tonight.

The noble Lord, Lord Kennedy, talked about negative and affirmative procedures. I have never known him to agree that we should have a negative procedure when we could have the affirmative. I do not want to repeat the reasons that I gave, but we have made a distinction between regulations that create new offences or affect primary legislation and those which merely deal with existing offences, where we still maintain that the negative procedure is correct.

The noble and learned Baroness, Lady Butler-Sloss, asked how far the remit of the Gangmasters Licensing Authority will roam in future. I cannot tell her that today, but I absolutely take on board her point. As I said in my opening remarks, we intend that the authority should evolve. That is the whole point of our changing the Gangmasters Licensing Authority to the new arrangements, and putting it under the remit of the Director of Labour Market Enforcement. The only thing we are likely to be concerned about—we have made this point before—is that it will be for labour market enforcement issues and not for other things. However, I take on board the noble and learned Baroness’s point on where it might evolve.

Of course, the Director of Labour Market Enforcement is required to outline a strategy. That is one of the things that we would expect him to do, having used the intelligence hub to work out where the efforts of his three enforcement agencies should best be employed. I also take on board that if we are expanding their role, there will be resource implications. My noble friend Lord Bates has already committed to write to noble Lords about the resource issue, so I would like to leave it there and ask that the amendments be accepted.

[Lord Kennedy of Southwark]

I assure the noble Lord that I would be very happy to agree to a negative procedure. I have nothing against that at all, but my concern here is that we have not had the greatest time today, with amendments arriving late. It is about my lack of confidence and the fear that we may be sitting back here in some weeks’ or months’ time with problems, only for us to say, “I told you so”.

[Lord Ashton of Hyde]

I hear what the noble Lord says.

Immigration Bill

Debate between Lord Ashton of Hyde and Lord Kennedy of Southwark

Monday 18th January 2016 Lords Chamber

[Lord Ashton of Hyde]

My Lords, I thank noble Lords for their remarks. Before I move to the amendments spoken to by the noble Baroness, Lady Hamwee, I shall comment on the points raised on the government amendments.

I was asked when the new system, which the noble Lord, Lord Kennedy, described as burdensome, will be used. This is a new power to be used after the existing penalties have been applied under the existing Acts. For example, in national minimum wage regulations, the current penalty is naming and shaming. In other areas, there are civil penalties. These amendments are designed for egregious offences and repeated offences where, for example, some companies may decide to take the fine and continue to pay their workers less than the minimum wage. We have included these new powers to put an end to breaches of labour market rules. We think they are an important part of the new toolkit to address these serious matters.

Resources have been mentioned on several occasions this evening. I take the point that if these new powers are not properly enforced, there will be no point in having them. My noble friend has already committed to talk about resources and to write to noble Lords on that subject, and I will ask him to include this in his letter.

The noble Lord, Lord Kennedy, raised the subject of electronics. He cleverly included matters which are nothing to do with this Bill. Of course, electricity is dangerous when it is incorrectly applied. The electronic means in this Bill bring it into the 21st century, but that does not mean that they should be used in all cases.

The noble Lord, Lord Hylton, talked about the four current Acts which can trigger the possibility of going into enforcement, and—again—he mentioned money. I agree it is bound to cost some money. As I said before, my noble friend will include that in his reply, if I could leave it like that for the time being.

Of course, the Director of Labour Market Enforcement will set out in his strategy how the funding that is available for the enforcement agencies should be allocated. Every year he makes an annual report. It would be very surprising, if he were underresourced, that he would not refer to that in his annual report.

As I have said to the noble Lord, Lord Kennedy, routine cases will continue to be dealt with using existing powers. There will be LME undertakings, and then orders will be for the more serious cases.

I move on to the amendments in the name of the noble Baroness, Lady Hamwee, to which I listened carefully. Amendment 47A would change the court’s power to make an LME order on application from an enforcement agency, so that the court would have to be satisfied beyond reasonable doubt that the person had committed or was committing a trigger offence.

We think it appropriate that a court should be able to make an LME order on application from an enforcement agency on the basis of the balance of probabilities rather than the criminal standard of proof. In these circumstances, the order is designed to prevent further offending, not as a means of sentencing the person on conviction for an offence. The amendment would limit the ability of enforcement agencies to invoke the LME order regime to secure compliance as an alternative to straightforwardly prosecuting the person for a trigger offence.

Amendment 50A would remove the court’s power to include a prohibition, restriction or requirement in an LME order on bringing the order, the circumstances in which it was made and any action by the respondent to comply, to the attention of persons likely to be interested in the matter. However, we think it right that the courts, in making an LME order, should be able to require a business to make the matter known to interested parties, and failure to do so would result in a breach of the order with the possibility of prosecution for the consequent offence. It is properly for the courts, not the Director of Labour Market Enforcement, to impose this requirement. The amendment would significantly weaken this provision, possibly enabling those subject to an LME order to conceal it from its employees, creditors and trading partners.

Amendment 57A would remove from the provisions relating to offences by bodies corporate the possibility of a manager committing the offence of failing to comply with an LME order where they have consented or connived in the offence or it was attributable to their neglect. However, it is appropriate that managers, in addition to their companies, should be held liable for the offence of failing to comply with an LME order where the offence resulted from their neglect, consent or connivance. Secondary liability provisions of this kind, including liability for managers, are commonplace in other legislation. The principle that managers can be held liable for offences committed by their company in certain circumstances is well established.

In the light of what I have said, I hope that the noble Baroness will agree not to move her amendments.

[Lord Kennedy of Southwark]

The Minister made reference to a point I picked out about electronic communications. It is his party that decided to allow the use of electronic communications in this Bill for contacting people who may have committed some very serious offences. Another Bill, also on the Floor of this House around the same time, is denying law-abiding citizens to get their communications by electronic means. I asked the Minister if he would point out that contradiction to his friends in BIS, particularly the noble Baroness, Lady Neville-Rolfe. I would be grateful if he could confirm that he will do that.

[Lord Ashton of Hyde]

My Lords, I am very happy to report the noble Lord’s comments to my noble friend Lady Neville-Rolfe. I would not necessarily call that a contradiction but I will certainly bring his remarks to her attention.