Immigration Bill

Debate between Lord Bates and Lord Brown of Eaton-under-Heywood

Wednesday 9th March 2016 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I associate myself with what the noble Lord, Lord Green, has just said. Clause 32 would essentially criminalise knowingly working illegally. I find it difficult to suppose that there would be much if anything in the way of the successful recovery of illegal earnings under POCA, and I can hardly think that that is the real object that underlies the proposed introduction of this new offence. Surely the real question is whether the suggested benefit indicated by the noble Lord, Lord Green—of adding this explicit new offence to the altogether more abstract existing offence of working in breach of immigration conditions, to discourage people smugglers by cancelling the message that they presently give to aspiring immigrants; namely, that there is no such existing offence here—outweighs the suggested risk of the exploitation of such workers by henceforth making it more likely that they will keep their illegal working secret. My judgment is that it does outweigh it. Therefore I support the existing clause as amended.

[Lord Bates]

My Lords, I guess that the noble Lord, Lord Rosser, is regretting raising the absence of legal advice on this point. What is so wonderful about this place is that, when we look for legal advice on our proceedings, up pop a former President of the Supreme Court, a former Lord Justice of Appeal and a former Lord Chancellor. One of the great advantages of this House is that we can draw on such expertise. I am particularly grateful to the noble and learned Lords for their contributions in this regard.

In the spirit in which my noble friend Lord Deben approached this matter, which is the spirit in which we approach the Bill, we looked at whether the “reasonable excuse” amendment would be able to hold up and work. The advice that came back was that it was thought that it would not work; none the less, in Committee the noble Lord, Lord Rosser, highlighted a number of cases in which people had been brought to this country believing that they had a legal right to be here. They had been told that by an unscrupulous employer but it then became manifest that they did not have that legal right. We agreed that there ought to be some defence and have brought that forward in Amendment 48 with the words,

“knows or has reasonable cause to believe”.

I shall deal with a couple of the points that have been raised. The noble Baronesses, Lady Hamwee, Lady Ludford and Lady Lister, rightly were all concerned about the impact on potential victims of trafficking and modern-day slavery. The suggestion that the Modern Slavery Act defence applies only after a charge is not correct, as that does not reflect the operational reality. We do not accept that the defence protects victims only after arrest—that is not the case. Law enforcement officers do not pursue investigations where a defence is clearly established. For example, it is a defence to a charge of assault if a person acts in self-defence and uses reasonable force. If officers establish that at the scene of an incident, they will not arrest a person, as to do so would be a waste of resources, as the noble Baronesses rightly highlighted.

I turn to how the clause on illegal workers will work. While many illegal workers do not earn significant sums, unfortunately some, particularly the self-employed, benefit from current loopholes in the law and make a good living out of being in the UK illegally. I am sure that the point that the noble Lord, Lord Green of Deddington, raised—about those who come here and move on to asylum—will be discussed when we reach a later clause concerning the ability to work while claiming asylum. The Proceeds of Crime Act 2002 (Recovery of Cash in Summary Proceedings: Minimum Amount) Order 2006 specifies that only cash sums of £1,000 and above may be seized. This means that the illegal worker must possess cash amounting to at least £1,000 before proceeds of crime action and cash-seizing powers may be used in connection with the new legal offence. We believe that that threshold, as well as closing a loophole, and the new mens rea defence, which is required to be proved in the court for a successful prosecution to occur, give the right balance and the right defence to ensure that the types of individuals whom the noble Baronesses, Lady Lister and Lady Hamwee, and the noble Lord, Lord Rosser, referred to are not caught inadvertently by this legislation.

Counter-Terrorism and Security Bill

Debate between Lord Bates and Lord Brown of Eaton-under-Heywood

Monday 2nd February 2015 Lords Chamber

[Lord Bates]

I am grateful to the noble and learned Lord for moving the amendment. I was conscious of disagreeing with only one element of what my noble friend Lord Howard said. He said that he was going to disturb the tranquillity of the proceedings. From the perspective of the Government Whips’ Office and of Ministers, tranquillity is quite a sublime quality in debate on these matters. These matters evoke strong feelings on all sides of the House. My noble friend Lord Tebbit brought home from his personal experience the point that we are dealing with real threats to real lives. That is the ultimate threat to liberty that we are seeking to legislate for in the Bill before us.

I said that I would reflect on the point made by the noble and learned Lord, Lord Brown, last week, as I took it as seeking clarification. I was grateful to him for the time which he gave me, my officials and the legal team from the department in reviewing this matter. However, as the noble Lord, Lord Howard, put so succinctly, this is a matter of principle. It is a well observed principle that, in the realm of national security, the Executive have ultimate power, responsibility and accountability. That is the way that it has been, whether it is in relation to exercising royal prerogative over passports, temporary exclusion orders, interception of communications, excluding foreign nationals or deprivation of citizenship for those with dual nationality —I could go on. The principle is this: when it comes to national security, the Executive have to take the responsibility. That is an onerous responsibility to take. It is also entirely right, as the Bill provides for, that there should be an ability to challenge such a decision of the Secretary of State by way of judicial review and the courts.

I promised the noble and learned Lord that I would seek to put some additional words on the record which might give him some comfort. They are in relation to the technical legal point that he touched on, as did the noble and learned Lord, Lord Woolf, but they do not seek to move away from the fundamental grounds on which the Government are resisting this amendment, that of not wanting to sacrifice the principle that it is the Secretary of State who should decide.

As part of the review of the TPIMs imposed in the cases of CC and CF, their legal representatives argued that in TPIM cases the reasonable belief test,

“requires that at least the foundation of past facts upon which the belief is predicated must be proved on the balance of probabilities”.

As part of Lord Justice Lloyd Jones’s consideration, he applied Judge Collins’s judgment in the case of BM, who said that,

“to found a reasonable belief that a subject is or has been involved in TRA”—

that is, terrorist related activities—

“and that a TPIM is necessary does not involve the requirement to establish involvement in specific TRA to any higher standard than that which can properly give rise to such a belief. No doubt some facts which go to forming the belief will be clearly established, others may be based on an assessment of the various pieces of evidence available. But there is certainly no requirement that particular TRA needs to be established to the standard of at least more probable than not”.

Based on this precedent, we expect that the courts will see the balance of probabilities as a higher standard and that this will impact on their consideration.

As the noble and learned Lord will be aware, the court will also seek to interpret the difference in wording, as it is entitled to do. His amendments seek to differentiate between the test which the Home Secretary is required to apply and that which the court is to apply. Given her remit in relation to a range of aspects of terrorism, the Home Secretary remains best placed to make a holistic decision to impose a TPIM notice in order to protect the public from terrorism. The Government hold firm to that principle, which has had cross-party support. I express my gratitude to my noble friends who have spoken against the amendment, I hope that, with that additional explanation, the noble and learned Lord will see why the Government take the position that they do and will not be able to support the amendment if it is pressed.

[Lord Brown of Eaton-under-Heywood]

My Lords, I am grateful to all those who contributed to this debate and to the Minister for the words which indeed provide a little comfort. Perhaps my gratitude to the noble Lords, Lord Howard and Lord Tebbit, is slightly less pronounced than to others. I venture to suggest that the logic of their position would be that one should revert to the original test that the Secretary of State set for him or herself as to whether to make these orders: not one of reasonable belief but the lesser test of reasonable suspicion. The question in the present proposed Bill is simply, “Who ultimately should be satisfied on the balance of probabilities that this person is or has been involved in terrorism-related activity?”.

We are all against terrorism but we are also—I venture to believe and hope—all in favour of basic human rights and not making orders too readily against those who may well be as innocent as the day is long. In fact, Mr Anderson said in making this recommendation that it was in large part to give legitimacy to the process that we should make the court the final arbiter. He said that in fact he thought it would have made no difference to any of the earlier TPIM cases—but just think what assurance the public would have that only the right people were targeted.

As to the Minister’s point about it being invariably a matter of principle that the court’s powers did not go beyond those of judicial review, with respect—as I ventured to point out in Committee—that is not so. In the 2005 Act, Section 4(7)(a) provided in terms that the court could confirm a derogating control order only if,

“it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism related activity”.

However, there it is. Given what may be thought to be the somewhat inactive—I restrain myself from saying “pusillanimous”—stance adopted by the Opposition here, clearly I will not divide the House. However, I suggest that there remains time, with a week before Third Reading, where the Minister could still come to recognise that there is much to be said in favour and, on true analysis, very little to be said against this amendment.

[Lord Bates]

In terms of the Government’s position on this, it is a principle. We gave it a great deal of reflection and that is the position. I am afraid that I am not able to give any commitment that the government position will change between now and Third Reading. Therefore, should the noble and learned Lord wish to test the opinion of the House, he should do so now.

[Lord Brown of Eaton-under-Heywood]

I was not relying on any reconsideration as a basis for not dividing the House. I merely say that it still remains open to the Government if they suddenly see the light. In the mean time, I take such comfort as I can from the words uttered today by the Minister. I beg leave to withdraw the amendment.