Immigration Bill
Lord Hope of Craighead Excerpts(10 years, 6 months ago)
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Lord Hope of Craighead (CB)
My Lords, I express my gratitude to the Minister both for his amendment and for the clarifications that he has given on the guidance that will be given to tribunals. I am sure that the amendment helps to remove an element of doubt about the scope of the words “new matter”. It became clear as we discussed the matter following the debate on Report that some change was needed, and I am extremely grateful to the Minister for his willingness to listen to us and to deal with that point.
As for the guidance, I gave rather short notice of the point that the Minister has dealt with but he has dealt with it to my satisfaction. Again, I am very grateful to him for his willingness to meet us to discuss these rather tricky matters.
Baroness Berridge (Con)
My Lords, first, my apologies for missing the first two sentences of the debate on this amendment. I left 1 Millbank over the road as soon as debate on the Bill started but I am not as nimble as I thought and I make my apologies to the House.
I, too, am grateful to the Minister for his reflection on this matter since Report and for the amendment that the Government have laid. I join the noble and learned Lord, Lord Hope, in thanking him for the meeting that was arranged at short notice prior to the Recess. I, too, am grateful that the amendment narrows the definition of what the tribunal should consider to be a new matter and that what is or is not a new matter will be for the tribunal to determine according to the legislation. The narrowing of the definition is most welcome as, once the matter is determined to be a new matter, the tribunal cannot hear it without the consent of the Home Secretary.
I am also grateful for the specific guidance outlining the circumstances in which the Home Secretary will consent to such a new matter being in front of a tribunal. I am grateful for my noble friend’s explanation of what will happen if very junior counsel are in front of a tribunal when a new matter is raised and unfortunately they cannot get instructions or the file containing the necessary information.
Everything in the Government’s amendment is welcome as far as it goes but I do not think that it will come as any surprise to the Minister that I remain disappointed that the Government have not laid an amendment giving the tribunal an exceptional discretion to hear a new matter if the demands of justice require it. Justice is of course the overriding purpose of our courts and tribunals, and ordinarily the Secretary of State should be the primary decision-maker on a new matter but not if justice demands otherwise.
On Report, the constitution arguments were ably outlined by the noble and learned Lords, Lord Hope, Lord Woolf and Lord Brown. This is the first time that a party to any proceedings will have this kind of control over jurisdiction and I shall be interested to know—as I am sure all noble Lords will be—how it works out in practice. I would be grateful if the Minister could indicate whether, if this new power results in judicial review cases, there will be a way of keeping a record of the judicial review decisions in relation to the guidance and to consent being refused. Will those figures be available some time after the Bill is passed for the purposes of post-legislative scrutiny?
Immigration Bill
Lord Hope of Craighead Excerpts(10 years, 7 months ago)
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Lord Woolf (CB)
My Lords, this is a matter in which I, like the noble and learned Lord, Lord Brown, have had considerable practical experience, first as a Treasury junior, who for years advised and acted for the Government on these problems that arise in immigration matters, which can be very frustrating indeed.
I have been delighted at the steps that were taken, with the encouragement of the judiciary, to transfer matters which previously went before the courts on judicial review to tribunals. We have to recognise that there are situations within the court system where tribunals are better equipped to deal with matters than the courts are, because the tribunals’ knowledge and experience is so considerable. Because of that, this process has continued. I am happy to say that the noble and learned Lord, Lord Mackay, does himself an injustice when he suggests that what he sought to do has not produced positive results. It has, and I can say to the House with confidence that if we had not built up the tribunal system in the way it has been built up, from a practical point of view judicial review would be an area of great difficulty in the courts today.
It is therefore very important that we do not do something that is contrary to principle and which reflects adversely on the tribunal system. Of course, that was not the intention of those who were responsible for drafting the amendment now under consideration. However, the transfer from the tribunal that has jurisdiction to deal with matters of this sort, for the sort of reasons that have been put forward, to one of the parties of the proceedings, is just totally and utterly contrary to principle and it should be and can be rectified in a way that is acceptable.
The noble Baroness, Lady Berridge, was very modest about her amendment; she said that it may not be perfect, and she may be right about that, but this matter certainly warrants consideration. It would be a very undesirable precedent indeed to create a situation where one of the parties to the proceedings has in effect to give its consent to the other party doing something that justice may require. In addition, the suggestion that something should go back to the beginning is just out of accord with what is now the practice in the courts. It is true that the real decision-making body is the Minister and not the courts, but for years, in my experience, the courts, when a new point has arisen, have taken the view that it is more practical and more in accord with common sense for the tribunal that is dealing with the matter to continue to deal with the new matter, if it thinks that it is right to do so, rather than to send it back to the Secretary of State, who is technically the decision-making body under the legislation.
With respect to the noble and learned Lord, Lord Mackay, to whom I bow in these matters, because he has been such a benign influence in the development of our court system, on this occasion the difference that he has with the noble and learned Lord, Lord Brown, and myself is misplaced and is not in accord with the practice adopted by the courts today, when a matter comes before them that should technically go back and discretion is exercised by the court to save everybody’s time and money by dealing with it themselves. So I urge the Minister to have another look at this matter, consult on it and come back at Third Reading.
Lord Hope of Craighead (CB)
I shall say a few words in support of the noble Baroness’s amendment. I thought that she made a very valuable point when she referred to the issue as raising an issue of constitutional principle, because it goes right back to the formation and foundations of the rule of law, where one of the two basic principles is that no man should be a judge in his own court. This was long before the referees got on to the football pitch, but it is an absolutely basic rule of law teaching, and it acquires particular force as a principle when the party that one is talking about are the Executive. One is taught that there should be a separation of powers between the judiciary and the Executive, and one can think of many countries that one would not wish to live in where the Executive are able to dictate to the courts whether or not they will entertain an argument. It is that kind of spectre that is raised by the proposal in the Bill, which I hope that the Minister will look at again, more carefully.
As for practice in the courts, as the noble and learned Lord, Lord Woolf, was indicating, it is quite common in judicial review for fresh grounds to call for a fresh decision in the course of the same process. The courts do not as a matter of practice send the whole thing back to the beginning so that it has to start off with a fresh writ, to begin all over again. They are well used to this—and, indeed, the kind of test in the amendment is one that is commonly applied by the courts every day in deciding whether or not fresh grounds should be argued.
I have two points respectively on the wording of the amendment. First, when I read the amendment for the first time it occurred to me that I would have liked to see the word “previously” at the very end of it, just to make it clear that the issue is whether there were good grounds for not raising the matter before the Secretary of State on the previous occasion when he was looking at the issue. Secondly, the test that is put in the amendment is relatively mild—“good reasons”. There would perhaps be room for looking at that test again and deciding whether it should be put slightly higher, if the Secretary of State is concerned that the court is not applying the kind of test that he would like to be applied—“very good grounds” or “extremely”, or something of that kind. One cannot draft on the Floor of the House.
Viscount Eccles (Con)
My Lords, it is very risky for a non-lawyer to intervene in such a debate, but I would be most grateful if my noble friend on the Front Bench and, indeed, my noble friend proposing the amendment, would relate new subsection (5), which Clause 15(5) will substitute for Section 85(5) of the 2002 Act, to new subsection (6) because, if I have read it right, new subsection (6) attempts to define “new matter” in a rather narrow way and not in one that means that just anything can be considered by the Secretary of State to be a new matter and therefore referable back to the beginning. I feel that I need enlightening on the relationship between those two proposed new subsections.
Lord Hope of Craighead
The reason why I suggested the word “previously” is because that is in new subsection (6) and would link in new subsection (5) with new subsection (6) to show that what one is talking about is exactly the kind of matter being referred to in the definition in new subsection (6).
Baroness Smith of Basildon
My Lords, I rise briefly to comment that the noble Baroness, Lady Berridge, has done a service to your Lordships’ House because she has given the Minister the opportunity to think again and to take advice from some of the best legal minds that the country has. I hope that he will take that opportunity.
I am not a lawyer, but one thing that strikes me is the issue of fairness. The noble Baroness, Lady Berridge, raised the point when she used a football analogy—not something that I would normally do in any event whatever. My noble friend Lord Bach laughs, because he knows my loathing of the obsession with football. But the idea that the scope of the tribunal’s jurisdiction should depend on the consent of one of the parties to the appeal is something that offends a great many noble Lords and their sense of justice and fairness.
My only question to the noble Baroness, which I asked her when I saw that she had raised this matter, was whether the Government had ever raised any concerns and whether this proposal would make it more difficult for them, given their problems in deporting foreign criminals. She was able to assure me that it has never been raised by the Government as causing any concern whatever. I think that the Minister should take the opportunity that has been presented to look at this again. The noble Baroness says that the amendment is not perfect, but it does not need to be perfect to take it away and give some further consideration to what has given a lot of concern to noble Lords across the House.
Immigration Bill
Lord Hope of Craighead Excerpts(10 years, 8 months ago)
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Lord Avebury
My Lords, when we discussed this previously, I, too, asked my noble friend the Minister about the relationship of this provision to Clause 33(4), which says that,
“the Secretary of State must … have regard to the range of health services that are likely to be available free of charge to persons who have been given immigration permission”.
I said that that implied that certain services provided by the health service were not going to be free of charge to these people. My noble friend tried to reassure me on this point but it is there in the Bill. It seems inconsistent with the repeated declarations that were made by my noble friend the Minister—which the noble Lord, Lord Patel, has just quoted—that once you have paid this levy, you are free to access all health services provided by the NHS. If that is the case, Clause 33(4) should be deleted from the Bill.
Lord Hope of Craighead (CB)
My Lords, when we discussed Clause 33 previously, the Minister was subjected to a very large number of points. I suggested then—and beg leave to suggest again this evening—that somebody should go over the clause very carefully and look at all the bits in brackets, of which there are quite a lot, and the various subsections and so on, to try to trim it down and make sure that it contains what is really necessary and does not have the opportunities for obscurities and criticism that it presently contains.
It is quite a difficult clause and I understand very well why when one gives power to make an order one wants to give as much scope as one can to the Minister, but this clause goes rather too far by trying to hedge too many bets, and I suggest that it should be looked at very carefully.
Lord Leigh of Hurley (Con)
My Lords, I attended some of the debate on Monday and heard my noble friend Lord Bourne refer to the £200—or £150 because he was talking about the student rate at about £3 a week—as being very reasonable and fair. As he said,
“it is the cost of a Sunday newspaper”.—[Official Report, 10/3/14; col. 1605.]
It seems sensible that there is some flexibility in this health charge.
The cost to the National Health Service for an individual between the ages of 15 and 44—presumably young enough to be in reasonably good health normally —is £700 a year. Of course, that rises for older people. As your Lordships may be aware, Professor Meirion Thomas has written extensively about the abuse of health tourism. Because we are not in the Schengen visa system, people do not need compulsory health insurance to come to the UK and as a result he has identified many instances of abuse by healthy people and particularly by people who are not well and pregnant women coming to this country to get health treatment without any coverage of costs.
It is true that the National Health Service has charged such “health tourists” some £300 million but it is also true that it has managed to collect only 16% of the amount it has invoiced. Other countries, such as America, Canada and Australia, have much more severe restrictions on people coming in without health insurance and consequently we get more than our fair share. I would argue for flexibility in the health charge and clarification, as the noble Lord, Lord Patel, requested, of the parts of the health service to which it applies.
Lord Taylor of Holbeach
No, that is not the case, but they may be, as they currently are, charged for particular treatments. There are some medical treatments available in this country which are not available under the National Health Service. That would remain the case. That is not the purpose of that particular phraseology. As I have explained, it is to provide for the charging of different categories of migrants—students and others. That is the purpose of the wording. The National Health Service has always said that it will provide health treatment free at the point of use. The purpose of the charge is to put applicants on the same basis as every other resident of this country, so the anxiety that my noble friend expresses is ill founded. This is not the vehicle for introducing mass charging for treatment under the National Health Service. That is not the purpose of the clause and it will not be possible to achieve it through this legislation.
Lord Hope of Craighead (CB)
My Lords, I listened with great interest to that exchange. If the noble Lord is prepared to follow my suggestion and look at the wording, there is a bit of a mismatch between what one finds in Clause 33(1)(b), which mentions,
“any description of such persons”,
and the phrase,
“different amounts may be specified for different purposes”,
in subsection (3)(b). I could understand the linkage if one were talking about different charges for different categories of persons, but it is the breadth of the word “purposes” in subsection (3)(b) which causes difficulty. Looking to the future use of the clause when it becomes a section, it would really be helpful if it were a little more precise.
Lord Taylor of Holbeach
I thank the noble and learned Lord for that advice—free legal advice to the Government is considered to be very valuable. I hope that I have been able to explain what the legislation is intended to do and have reassured noble Lords on that point. Beyond that, I can commit to go back to look at the wording of the clause to see whether the intention could be made more explicit. That I will seek to do.
Immigration Bill
Lord Hope of Craighead Excerpts(10 years, 8 months ago)
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Lord Hope of Craighead (CB)
My Lords, I rise to speak to Amendment 56, which is tabled in the name of the noble and learned Lord, Lord Mackay of Drumadoon, who regrets that he cannot be in place. I have put my name to the amendment. I should make it clear that the matter with which it deals was drawn to our attention by the Law Society of Scotland. Just to set the background, it raises a short point in relation to Clause 28, the discrimination clause, to which the noble Baroness, Lady Smith, referred. That clause requires the Secretary of State to issue a code of practice with a view to ensuring that landlords or agents do not breach the provisions of the Equality Act 2010 so far as it is related to race when performing the obligations imposed on them by Chapter 1 of Part 3.
Clause 28(3) provides that:
“Before issuing the code (or a revised code) the Secretary of State must consult … the Commission for Equality and Human Rights … the Equality Commission for Northern Ireland”.
This amendment adds the Scottish Human Rights Commission to that list.
The reasoning behind the proposal can be put very shortly. It is that while Chapter 1, with which the code will be concerned, can be said to fall under the broad heading of immigration, which is a reserved matter for the Home Office, it also involves the devolved area of tenancies in relation to both social housing and private lettings between landlord and tenant. This is a sensitive area where the Article 8 right to family life and to respect for the person’s home is involved. It could also be argued that there is an Article 1, Protocol 1, right with regard to the landlord since he is having to take decisions about his own property.
The reference in Clause 28(3)(c) to,
“such persons representing the interests of landlords and tenants as the Secretary of State considers appropriate”,
suggests that there is room for adding something to the two particular bodies which are mentioned in the list set out in the clause. But it is suggested that, in order to complete the protection for the tenant’s rights under a devolved system, the inclusion of the Scottish Human Rights Commission would be appropriate. In a sense, it is a precautionary proposal because one has to be careful with regard both to the devolved system and to the risk of entrenching on the human rights of either party, which could give rise to very unfortunate consequences. The safer course, I respectfully suggest, is to include the Scottish Human Rights Commission so that it can offer its advice on the drafting of the code.
Baroness Neville-Rolfe (Con)
My Lords, I am sorry that prior engagements meant that I missed part of the Second Reading debate and could not speak then on this important Bill, which I support. I start by thanking my noble friend the Minister for the briefing he kindly provided on the residential tenancy provisions. I thank noble Lords opposite for initiating a debate on Clause 15, as it gives me the opportunity to probe the Government’s intentions and the “workability” of the provisions, to quote the noble Baroness.
I come at the subject as a business person, although I should declare an interest as the part-owner of a son’s flat which is currently let while he works out of London. We are asking the landlord community, nearly 2 million of us, to be part of the enforcement service for immigration. This is a new burden, as the noble Lord, Lord Best, has said. I understand that, for 62% of landlords, the required documentation is already available to satisfy the provisions. But that leaves a lot of people burdened for the first time, and required to keep copies and records that they do not have to worry about at present. I suspect that many will not know about the new rules and that they risk a civil penalty—£1,000 for the first offence, £3,000 thereafter— if they let to somebody whose papers are not in order.
I have a fear that the immigration authorities, in order to hit targets, could turn their attention to the easy task of cracking down on landlords who make a mistake, rather than the labyrinthine task of fighting illegal immigrants through the courts. Can my noble friend give landlords, especially small landlords who do not use expensive letting agencies, some comfort on these issues?
This is an important Bill, as I have said, and it is clearly essential that the new provisions are communicated really well. I have two thoughts on this and would be glad to hear the Minister’s reactions before we accept the provisions on landlords in Clause 15 and subsequent clauses. One is to use the web properly. We should place on gov.uk, in one user-friendly place, all the new rules for landlords, wherever they are set out, including the new online checking resource that is planned; briefing on the new biometric residence permits, which will ease landlords’ task of identification; the contact details for the phone inquiry line; and the 48-hour e-mail immigration checking service, which I agree will need to be adequately staffed, as the noble Lord, Lord Best, has said.
A different version could also be provided for tenants, including, perhaps—having listened to earlier debates—students, from whom I believe the paperwork requirements may be relatively light. It would be good for all of those people to know what the rules are and be able to check them in a simple place on the web. With modern techniques, prospective tenants could easily translate this briefing using an online app, obviating the need for expensive advice and lawyers.
Secondly, we should ask the landlords’ associations to prepare model clauses on the new immigration controls to be added to their standard shorthold lease. This would make it less likely that the new requirements were overlooked and the tenant would have to make an undertaking, which would be helpful, for example, in avoiding illegal sub-letting.
Finally, I would like to understand the Government’s intentions on timing, a point which links to Amendment 51 on a possible pilot. I believe that the Government plan to trial the new arrangements in a specific area or areas, which is an excellent idea that I would like to see applied to more areas of regulation. However, what would the timetable look like, and will the Government, as suggested by the noble Lords opposite, feel able to feed back to this House what they have learnt before the new system goes nationwide?
As a supporter of the Bill I am very keen that it should work well and not lead to an adverse reaction by small landlords or a reduction in available accommodation because people do not want to risk a fine or the hassle involved in the new scheme. The money-laundering laws were no doubt good in intent, but the repetitive bureaucracy they have introduced into every aspect of asset purchase certainly comes at a cost which affects UK productivity. I am keen to know whether we have learnt from this experience in establishing this important new regime for landlords.
Immigration Bill
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Lord Tugendhat (Con)
My Lords, the noble Baroness, Lady Warwick, said that the amendment enjoyed support from all quarters of the House. I speak as the Conservative sponsor of the amendment, and I am very happy to do so.
We have heard a number of powerful speeches and I think that I agree with every word that has been spoken. I particularly draw attention to a point made by the noble Lord, Lord Hannay, in his introduction when he said that he was not making a special plea for any given set of individuals. Rather, he was pleading on behalf of one of the most successful sectors of British life and of the British economy in order to enable it to continue to be one of the most successful, not only within this country but in international terms.
If I may say so, it is very important when the Minister answers that he should not treat this as being something directed towards a particular group of people who come to this country, as if we are conferring some favour on them. Rather, he should deal with the issue in the context of the impact that the Government’s proposals will have on one of the most successful sectors of British life and of the British economy. The ability to attract international students is both a means by which British universities excel and a measure by which others can see that they are excelling. To diminish in any way the free flow of talent to this country would be very damaging.
I should like to make one final point, because so much has been said that there is no point in repeating it. The Government should look at the beam in their own eye, if I may say so, on this issue. The Government understand very well that, when they make senior appointments to different institutions, they want to attract talent from all over the world. Indeed, they boast of their ability to do that and of their willingness to make appointments of non-Brits to high places in this country in a way that most other countries would not in the case of foreigners. They paid vast sums of money to attract a redoubtable Canadian to run the Bank of England—about four times what the president of the Federal Reserve gets, they were so anxious to attract his talents to this country. Another very talented Canadian—paid rather less, actually—is at the head of the Royal Mail. There are many other examples, I am happy to say, of talented people being attracted by the Government to contribute to the British economy.
The Government understand perfectly well the importance of attracting the best people to run British institutions, and they should be commended for their lack of chauvinism in that regard, but that is also true of universities. If universities cannot continue to attract the best talent from all over the world, that will seriously damage their ability to continue to contribute as much as they do to the British economy. As my noble friend Lord Cormack, said, those who stay after graduation are often the people who contribute the most to academic research, industrial start-ups or the businesses they build up. Those are all factors which I feel that the Government have overlooked in this rather ill-conceived measure.
Lord Hope of Craighead (CB)
My Lords, I should like to say just a few words in support of the amendment of the noble Lord, Lord Hannay, based on my experience as chancellor of Strathclyde University for 17 years. Having spoken to many students of the kind we are talking about and having hosted alumni events overseas, I think that my experience has been very similar to that described by the noble Lord, Lord Cameron, in that we have trained those students in our country and find them in positions of great influence in the countries to which they went after leaving.
I shall not repeat the points made so well by so many other noble Lords; I endorse all of them as background to what I should like to say. Perhaps the Minister will be kind enough to focus precisely on what the amendment is intended to do. If he reads its wording, he will see that it encompasses all the various things in Part 3: access to tenancies, bank accounts, driving licences and other services. Of course, among the services is what Clause 33 deals with: access to the health service. There is a difference between the Clause 33 matter, which I shall come back to in a moment, and the other services mentioned in the opening words of the amendment.
The difference is this. As I understood the Minister’s words in the earlier debate, the purpose of the other clauses is to flush out people who are not entitled to be here. It is to deal with people who are not legal migrants. We find that in Clauses 16(2), 35(2) and 42(1) all of which direct attention to people who require leave to enter or remain in the United Kingdom but do not have it. I raise this point because the amendment is dealing with tier 2 and tier 4 visa holders—people who, because of the terms of their visas, are entitled to be here. Bearing in mind all the points that noble Lords have made, why is it necessary to subject tier 2 visa holders and tier 4 general visa holders to these restrictions? Why is it necessary for them to go through these hurdles to have access to, for example, a bank account? Why is it necessary to do that for driving licences?
As for Clause 33, that is a different point and I do not want to go over the debate that we had earlier this afternoon. However, while I did not intervene in that debate because the Minister was under great pressure from many people who were doing that very thing, there is one point that struck me in looking at Clause 33. It is that its wording, which is designed to confer a power on the Secretary of State to make provisions for charges to impose, begs so many questions. Who, for example, are the persons on whom the charge is to be imposed? Clause 33(1)(b) refers to,
“any description of such persons”,
but who are they and what is the intention of that provision? We then have all the various steps in subsection (3), including the points that other noble Lords drew attention to. With the greatest respect, my suggestion is that the noble Lord and those advising him should have a very careful look at the wording of Clause 33. I suspect that the debate which we had earlier, and which I am not going to rehearse, has flushed out some points of real concern about the breadth of the wording, what it is really intended to do and whether it is necessary to do what it is seeking.
Quite apart from that, there is the point that others have made: that to subject overseas students to this sort of extra charge is bound to have consequences. Two words struck me as I have been listening to the debate. One was “cumulative”, in the point made by the noble Lord, Lord Hannay. It is about the cumulative effect of all those measures that are made. The other was “perception”, because perception is fuelled by rumour. Figures have been put forward in this debate as to what students in this country, and perhaps overseas students, are thinking. What about all those who are wondering to which country they should come? They are the people whose perception should really worry us. There are also the rumour makers. Their rumours may not be based on accurate figures, which may have been the point that the noble and learned Lord, Lord Wallace of Tankerness, was making the last time that we spoke. However, the fact is that the rumours and the perception are there. The Government really have to face up to the fact that to pile on more cumulative items on to this package of things which are fuelling that perception is very ill advised. I hope that the Minister will explain to us why he believes it necessary to do that.
Baroness Benjamin (LD)
My Lords, I support Amendment 49, moved by the noble Lord, Lord Hannay, and I agree with everything that has been said so far in support of that amendment.
I would like to highlight the views of the students’ guild at Exeter University, where I am chancellor and so I express an interest. The students’ guild has raised concerns on behalf of the international students at the university, with whom it has had several meetings. The most worrying thing to come out of this meeting is about the proposal that international students must prove to potential landlords that they have the right to be in the UK before they are allowed to secure accommodation. As many international students are required to secure accommodation before they come to the UK, this poses an unnecessary and potentially impossible burden for them as they will not be able to present the documentation needed. The students’ guild also feels that this check will force many to endure extra expense, as letting agents charge for the process, yet the Government gain no further value in this monitoring. In addition, it feels that landlords may turn anyone who they perceive to be from international backgrounds away from their accommodation because they do not understand how to check for immigration status and do not want to risk the £3,000 fine.
Lord Hope of Craighead
Is the noble Lord suggesting that the unaccounted-for balance is made up of overstayers without leave to remain or people who, having studied here, are given permission to remain for longer than was originally envisaged?
Lord Taylor of Holbeach
I think that the noble and learned Lord will understand that I suggest both. The graduate course has been a success—we are increasing the numbers of students who are staying on for postgraduate work—and the business entrepreneur course is equally successful. There will be some, but there is unfortunately still some evidence that the tier 4 student migration group—it is a special route; it is not the same as everything else; students are treated as a special case—is being misused in some cases. That is why it is important that we have checks in place to make sure that that does not occur.
My noble friend Lady Williams suggested that the exceptional talent route has dismally failed. We do not accept that. We recognise that the number of visas that are taken up under that is low, but it was always thought that that would be the case. However, we are working with all the competent bodies—the Royal Society, the Royal Academy of Engineering, the British Academy and the Arts Council—to improve the process so that the visa process payment will not be paid until the competent body has endorsed the application. We are working with these bodies to ensure that the scheme is a success.
In answer to my noble friend Lady Benjamin, it is not the case that international students are unable to stay on and work. The post-study work route, which was much abused, which allowed all students to stay on and look for work, has been replaced by the graduate level job scheme, and we have made a success of that.
The noble Lord, Lord Stevenson, asked whether the cost of the surcharge in relation to the cost of studying was competitive with other countries. Yes, it was addressed in our published impact assessment, where the noble Lord will find the answers to a number of the questions he asked. However, I will make a point of writing to him with a full answer to all the various questions, some of which lie outside the Home Office’s own immediate area of engagement.
I understand that people want to make sure that the Government do not do anything that damages the reputation of this country as a centre of intellectual and academic excellence. I accept that. Speaking as a member of the Government, I remind noble Lords that we have a responsibility to seek to control immigration. All the measures in the Bill are about methods of making sure that people who are in this country are here legally.
There is no difference between us on the benefits that overseas students bring to this country. That is why there is no limit on numbers, and why I will continue to seek to reassure noble Lords on the Bill. I hope that we will have a chance to discuss it before we come back to this issue on Report. Meanwhile, I hope that the noble Lord, Lord Hannay, will withdraw his amendment.
Immigration Bill
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Baroness Benjamin
My Lords, many noble Lords have mentioned training for immigration officers. What training do they have on understanding the medical conditions such as sickle cell disorder that those with African and Caribbean heritage may have, which can occur under stressful circumstances and may require immediate attention because they can lead to fatal strokes and even death?
Lord Hope of Craighead (CB)
My Lords, it may be proper now to raise a point of detail on Amendment 12 in case the matter is taken any further. Noble Lords will know that the Bill applies to Scotland and Northern Ireland as well as to England and Wales. We see that in Clause 69, which applies to Schedule 1 as it does to most other provisions in the Bill. The problem with the amendment is that it refers to two people who have oversight of matters in England and Wales, but does not include their equivalents in Scotland and Northern Ireland. Certainly, so far as Scotland is concerned, there is a separate police complaints commissioner and there is a Scottish inspector of prisons. I am not sure of the details in Northern Ireland but they could no doubt be checked as well. My point is that if the oversight provisions are to be carried across all the jurisdictions, we should be careful to include and mention them in this particular clause.
There was a related point, which the Minister might like to confirm. I take it that the codes that have been referred to apply to Scotland and Northern Ireland as well as to England and Wales. It is very important that there should be uniform standards throughout the entire country in these important matters.
Lord Taylor of Holbeach
My Lords, this has been a useful debate because it has enabled me to address a number of issues, some of which are the subject of the Bill's provisions and some of which go a little broader to address the role of contractors. The Bill itself and the amendments address only the powers vested in immigration officers. I would like to reassure the noble Lord, Lord Rosser, that effective regulatory oversight of the way in which the new enforcement powers in Schedule 1—and indeed other immigration powers—will be exercised, is already in place.
In England and Wales, the Independent Police Complaints Commission, as the noble and learned Lord, Lord Hope of Craighead, pointed out, provides oversight of serious complaints, matters of conduct, and incidents involving immigration officers and officials of the Secretary of State exercising immigration and asylum enforcement powers. The IPCC’s remit also includes those officials exercising relevant customs and customs revenue functions within the UK Border Force. We should remember that this is UK-wide—there is no devolved power here. This is a reserved power for UK borders.
In relation to Scotland, the noble and learned Lord, Lord Hope of Craighead, is quite right to point out that the Crown Office and Procurator Fiscal Service has the remit to investigate deaths and allegations of criminality in respect of immigration and customs matters. In addition, all complaints about immigration officers and officials of the Secretary of State who are exercising immigration and asylum enforcement powers in Scotland may be investigated by the Police Investigations and Review Commissioner. That does not change under these provisions.
To ensure that this scrutiny is truly nationwide, we have included a provision in Clause 59, following agreement with the Northern Ireland Executive, to enable the Police Ombudsman for Northern Ireland to provide oversight of serious incidents, complaints and conduct matters in Northern Ireland where immigration and customs enforcement powers are exercised. Her Majesty’s Inspectorate of Prisons has a statutory responsibility to report on the conditions and treatment in all places of immigration detention in the United Kingdom. Furthermore, the UK’s border and immigration functions as a whole, including the use of enforcement powers such as those in Schedule 1, are subject to the independent scrutiny of the Chief Inspector of Borders and Immigration, Mr John Vine.
My noble friend Lord Mawhinney asked what was meant by “reasonably required” because that seemed to exercise a number of noble Lords. It means to the extent of finding the object of the search and no further. Indeed, noble Lords might be surprised to know that immigration officers have powers to search people who are being examined in ports for passports and other relevant documents, but they are not permitted to search those in detention for weapons or other dangerous articles that might cause harm to themselves or others. A protective search power is currently only available in respect of people who have actually been arrested. Immigration officers have a number of powers to enter and search premises for the purposes of finding material that would facilitate the investigation of current immigration offences. But the powers do not apply to illegal immigrants in immigration detention who have been arrested by immigration criminal investigators rather than the police.
A further example is that officers can search for relevant documents in the home of an arrested person or the premises at which they were arrested. They are not permitted to search the premises of a third party—for example, those of a relative or partner. The Government, quite rightly, are seeking to ensure that immigration officers have the powers that are currently available to contractors but not to immigration officers themselves.
Lord Harries of Pentregarth (CB)
I, too, will speak to Amendment 17. When I was the Bishop of Oxford, I had something to do with Campsfield House. What really concerned us at that time was the length of time for which people were held in detention. It is not at all encouraging that, some years later, this is still a major concern. As we know, around 220 people last year were held in detention for more than six months, without even taking into account the 936 who are held in prison. Why is this country so different from the rest of Europe in having no limit on the length of time that people can spend in detention? It is obvious, from so many of the facts and figures that are put before us, that a time limit helps you to achieve your purpose of removing people who have no legal right to be in the country. France, for example, has a time limit of 45 days for people in detention and it enforces 31% more removals of irregular immigrants and asylum seekers than the United Kingdom. We all know that if you do not have a deadline, things can slip and slip. Those of us who write are grateful that there is always a deadline, otherwise we would never get it done. If that applies with simple things such as writing, how much more are things liable to slip when trying to deal with a person’s case?
To reiterate the point, it has also been shown that the longer people are held in detention, the less chance they will be removed. Only 37% of those who were detained for more than a year were eventually removed, compared with 57% of those who were there for less than 28 days. Again, so many facts show that having a limit, such as 28 days, allows you to achieve what you want far more efficiently. That is, of course, without even taking into account the expense. It has been estimated that this amendment would save something like £87 million if it were accepted, because it is very expensive to keep people in detention.
There are alternatives. In Australia, for example, where there is an alternative based on case management, there is a compliance rate of something like 93%, of which 60% are voluntary removals. This is even without taking into account the human factor and the distress and extra suffering caused by allowing people to be detained. From the point of view of financial efficiency, and every other consideration, it is surely right that other alternatives should be looked at much more seriously than they are at the moment.
Lord Hope of Craighead
My Lords, I support these amendments. I should explain that at an earlier stage in my judicial career it was necessary for me to visit prisons so that I could see the conditions under which people were being held and understand the regimes that were being operated in these establishments. I recall very clearly visiting one of these places, where I came across people of the kind we are discussing this evening—detainees awaiting decisions about their immigration status. It struck me at the time that it was quite extraordinary to meet these individuals—who, after all, had either committed no offence or, if they had, had served their sentences—being held in prison conditions along with other prisoners. It is fair to say that a separate wing was set aside for them; nevertheless, the conditions in which they were being held were prison conditions. The noble Lord, Lord Roberts, said that it was a dreadful situation. I must say that I found it quite offensive to meet these people there when I spoke to them and discovered why they were there and what their problems were.
It seems that there is a great deal of force in Amendment 16, tabled by the noble Baroness, about the presumption of liberty, which takes us right back to the beginning of the exercise we are discussing. The points that are built into that amendment are those that would occur to any judge considering an application for bail in this situation. Most judges would, I think, see that the question to ask oneself is whether the individual would fail to comply with conditions or was likely to commit an offence. The value of having that set out in the Bill is that it will achieve some uniform standard throughout the system. The difficulty is that you have immigration officers and First-tier Tribunals up and down the country, and there will not be the same attention, uniformity of practice, application of presumptions and so on that one gets if the matter is set out in terms in the Bill. I would have thought that the matter was sufficiently important to do that, so that it would carry itself through the various steps that have been discussed by other noble Lords, with everybody knowing where they stand.
We are dealing here with people, many of whom will be held in prison conditions, who have either not committed an offence, or who have served their sentence and are being detained because time needs to go by for decisions about their status to be taken—that is all. It seems right that they should be given the benefit of the presumption of liberty.
Baroness Lister of Burtersett
My Lords, I cannot claim first-hand experience like other noble Lords, but I went to a meeting chaired by the noble Lord, Lord Roberts of Llandudno, where we heard from organisations that work with immigrants in detention. I thought that a powerful case was made—and has been made by other noble Lords—for the principles behind Amendments 16 and 17 in particular.
I will quote from a recent report by the Bingham Centre for the Rule of Law that emphasised as its cardinal principle the assumption of liberty. It stated another principle:
“The duration of detention must be within a prescribed applicable maximum duration, only invoked where justified”.
The report quotes a number of statements from the United Nations, in particular UNHCR detention guidelines that state:
“To guard against arbitrariness, maximum periods of detention should be set in national legislation. Without maximum periods, detention can become prolonged, and in some cases indefinite”.
It also quotes from a UNHCR global round table on alternatives to detention for asylum seekers, refugees, migrants and stateless persons, which states:
“Maximum time limits on ... administrative immigration detention in national legislation are an important step to avoiding prolonged or indefinite detention. Lack of knowledge about the end date of detention is seen as one of the most stressful aspects of immigration detention, in particular for stateless persons and migrants who cannot be removed for legal or practical reasons”.
I am sure that I do not have remind noble Lords that we will probably have rather more people in that position as a result of Clause 60 of the Bill.
Let us put ourselves in the shoes of people who are detained. What would it feel like not knowing how long you are going to be detained? I am not surprised that it is one of the most stressful things. I think that not having that knowledge could drive people over the edge, particularly when I hear about the conditions in which some people are being kept.
The UN Committee Against Torture urged the UK to introduce,
“a limit for immigration detention and take all necessary steps to prevent cases of de facto indefinite detention”.
We have already heard from other noble Lords that we are out of step with many other European countries and that there is no justification for it, not only on grounds of humanity but also of effectiveness. I hope that the Minister will listen to what is being said across the House and take it away to consider a possible amendment on Report.
Lord Tugendhat (Con)
My Lords, I very much agree with everything that the noble Lord, Lord Hannay, said and I am delighted that my name should be attached to his amendment. I shall not therefore repeat his powerful arguments but should like to add just one further thought.
As everyone in this House knows, the United Kingdom is second only to the United States in terms of the number of universities that it has in the top group of the world’s universities, not just in absolute terms but in all kinds of important subject areas such as engineering; figures last week showed that Cambridge, Imperial College and Oxford were still in the very top group. That was as much as the rest of Europe put together was able to provide.
There are many reasons why British universities are in the top group of world universities but one is that there is a free market in talent that enables them to attract it from all over the world, not only in the students but in the teaching staff. To some extent, there is a chicken and egg factor here. They are great universities partly because they can attract talent from all over the world, and because they can attract that talent they remain very good universities.
There is a similarity between the university world and financial markets. Neither of them is purely national. Both are totally international with seamless connections across the world. Therefore, if you try to turn us into an island and cut us off from this stream of talent that is crossing the world, you will do great damage to British universities. It will not show up in the short term, as the noble Lord, Lord Lea of Crondall, just pointed out. These things take a long time to show through. But it will very seriously damage over the long term the ability of the greatest British universities to remain in the top group—and not only them. For 15 years, I was chancellor of the University of Bath, a university that was founded less than 50 years ago. This has nothing to do with me because the outstanding vice-chancellors that it has had deserve the credit, but in the past 20 years the University of Bath has moved from obscurity not only into the top group in the United Kingdom but now into a number of world league tables as well. That is because it has both a student body and a faculty that are drawn from all over the world. In fact the previous vice-chancellor was American. It has had people from the Far East, North America, South America and all kinds of places.
I beg Ministers to consider the fact that clauses such as this one that we are seeking to amend have a deleterious effect on the ability of British universities to perform adequately on the world stage. We do not have so many institutions, so many industries and so many spheres of our national life that are indubitably regarded as absolutely among the best in the world. Universities are one and it would be extraordinary to kick them in the shins.
Lord Hope of Craighead
My Lords, I endorse what the noble Lord, Lord Tugendhat, just said and what the noble Lord, Lord Hannay, said earlier. My background is that I was for 17 years chancellor of the University of Strathclyde in Glasgow. Our experience has been that we are operating in a global market not only for teachers but for students—those coming to the university and those going out from the university to other countries to take on part-time study or study together with employment experience.
There are a number of aspects that I might very quickly mention one after the other. The first is the point that the noble Lord, Lord Hannay, made about the cumulative effect of policies that have been building up over the years. One of the most injurious in our experience has been the inability of foreign students to stay on after they have completed their degree courses. I know that there is strong feeling in government that we have a policy about people who stay on who should not do so. These are people who in the previous system were able to remain here for a given period. They used that time to gain work experience in some of our leading companies. Together with their academic work, they took that back to their own countries, developed their own expertise and thereby maintained a continuing link not only with the universities but with the companies with which they worked. That has gone. We are not talking about that in this Bill, but it is against that background that this has become a much more serious issue. The noble Baroness made the same point. We have reached a point where we are losing contact and the competitive edge that we must maintain if our universities are to remain as competitive as they are in the world.
The second point is about revenue, which the noble Lord, Lord Maclennan, made. Certainly, our experience when we were getting students from India and China was that they were paying substantial sums to come to the university, and we are losing that. I am told that there has been a 25% fall in students from these countries coming to Strathclyde for postgraduate degrees. That is a drop in numbers that is difficult to make up for in the market in which we work.
The other aspect is the exchange process whereby our students go away in the course of their studies for a year out. Because we are driving away international students from elsewhere, it is more difficult for us to get places for our students to go to.
The final point is that one of the essences of university is the ability of students to mix with each other, gain experience from what other people have done and make friends across the faculties and across the nations throughout the world. The opportunities for doing that will be diminished if we do not sustain our effort of attracting students from other countries from outside the EU who have so much to contribute. Therefore, I warmly endorse the amendment moved by the noble Lord, Lord Hannay.
I should add, in response to a point made by the noble Baroness, that I believe it is a very carefully crafted amendment because it is seeking to direct attention to a very particular category. Those are the categories described very precisely in the amendment, which is the point that I and, I suspect, the noble Lord, Lord Tugendhat, have addressed. It is a very particular category. It does not include language schools and all the other fringe elements, which might give rise to abuse. These are people who would be here for very good reasons, carefully monitored, and would take enormous benefits back to their own country if they were allowed to continue to come here.
Anti-social Behaviour, Crime and Policing Bill
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Baroness Butler-Sloss (CB)
My Lords, as chairman of a forced marriage commission I thank the Government very much and congratulate them on adding this provision. We have been very concerned, from some of the evidence we have received, about the position of vulnerable people, adults as well as children. This is a good step forward. I also add my congratulations to the Forced Marriage Unit, which has over the years done some extremely good work, some of which I happen to know about. I hope that it will continue to get a great deal of support for the work it is doing.
Lord Hope of Craighead (CB)
My Lords, I add my appreciation of the work that the Minister has done with the Scottish Government to provide an amendment which is compatible with Scots law. Having read it carefully, I think that it is a very valuable addition to the armoury in Scots law to deal with this very difficult and obnoxious problem.
Baroness Hamwee
My Lords, I, too, add my thanks. This issue exercises noble Lords around the House, as well, of course, as many people outside the House. It is not a party-political matter; there may be a range of views as to the nuances of how to deal with the issue. I say to the Minister that this is a great and very important step, but he will not have heard the last of the issue of forced marriage.
Anti-social Behaviour, Crime and Policing Bill
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Lord Condon (CB)
My Lords, I refer your Lordships to my registered interest in policing. I should also add that I was Metropolitan Police Commissioner for seven years and that embraced the time of the allegations the noble Baroness, Lady Smith, has referred to in relation to the noble Baroness, Lady Lawrence.
I have enormous sympathy for the reasons why the noble Baroness, Lady Smith, has moved this amendment. Clearly, change is needed and the balance has to be redrawn between the need for undercover policing to provide protection for the wider community and the avoidance of the abuses that have clearly taken place in the past.
As the noble Baroness, Lady Smith, has raised the issue of the noble Baroness, Lady Lawrence, perhaps I can place on record—fully aware of the consequences if I were to mislead your Lordships’ House—that at no time during my time as commissioner did I approve, authorise, acquiesce or have any knowledge of, or give any encouragement to, any of the actions suggested by Peter Francis in his book. Investigations are currently under way to try to establish the truth of all those matters. If I, as commissioner for seven years, had no knowledge of the sort of allegations that have been made by Peter Francis in his book—assuming that he has made those allegations on, hopefully, the basis of some element of truth—that shows that there is a need for reform and for much closer scrutiny of these operations. I am now in my 15th year of retirement so I am long past knowing what the current environment is like, but I still sense an enormous need and momentum for change, which is shared by the Government and the Opposition.
So, although I have enormous sympathy for the amendment moved by the noble Baroness, Lady Smith, I look to the Minister to say how the Government are responding to these issues. I sense that the Government are well and truly on this case, so I will listen to the Minister’s response before I make a judgment about whether or not I am able to support the amendment.
Lord Hope of Craighead (CB)
My Lords, I wish to raise a point on the wording of the amendment. Three definitions are set out in subsection (5), one of which is “relevant judicial authority”. I have no complaint about the definition itself, but I cannot find anywhere in the proposed new clause where that phrase is used and is in need of definition. I may be wrong. Obviously, this comes after a section where independent approval may be needed, but I would like to be persuaded that the definition in the subsection is relevant to the clause we are being invited to approve.
Baroness Jones of Moulsecoomb (GP)
My Lords, although I have not been involved in these cases, I have been involved in the examination of these kinds of cases when I was a member of a police authority in London for 12 years and I still sit on the police committee at City Hall.
Something like the amendment is absolutely necessary because, putting aside the civil rights, human rights and civil liberties of the women and the people involved in the environmental movement whose lives have been trespassed upon for no information and without subsequent charges against them—these were innocent women who were trespassed against—you have to think about the civil liberties and human rights of the police officers involved. Again and again, officers were embedded within environmental groups for long periods of time. It was not like getting into a drug cartel or organised crime of some kind; this was a quite different kind of policing. The police officers have suffered quite deeply afterwards. It is very easy when you are embedded for three months or six months to get to like the people you are working with and to understand what their motivation is, and many officers have come out of this quite damaged and unable to work any further.
There is also an argument about the cost of the court cases in which some of these police officers were involved—they went to court and were charged as protestors and were either convicted or not convicted—because those cases are now being overturned. Two cases will be coming up in the next two weeks in London on this issue. It is costing us a fortune and justice is not being done. We need an independent way of judging and assessing whether or not this kind of action is necessary. It is time that the Metropolitan Police understood how important this is and I hope that the Government will approve the amendment.
Lord Condon
My Lords, I added my name to the amendment broadly for the reasons that my noble friend Lord Blair set out. This issue is beginning to feel unnecessarily adversarial, and I do not think it needs to be. I hope that we will move rapidly to agreement. I certainly have no wish to block the appointment of an appropriate man or woman with experience in a foreign police force to the post of commissioner.
My point throughout has been only to draw to attention to the fact that, having been a chief constable and the commissioner, I know that in relation to national security and to the protection of Her Majesty, the line of succession and senior politicians, the posts are of a totally different magnitude. The commissioner holds a unique position at the centre of national security issues and in the protection of the monarch. My desire throughout has been simply to draw attention to that distinction and to ensure that if an overseas officer or someone with overseas police experience is appointed to the commissioner’s post in future, we will have taken due cognisance of the difference, the importance and the significance of the security roles et cetera.
I am sure that the Minister and his ministerial colleagues are well aware of the issue now and are seeking to find a form of words that will bring this matter to a satisfactory conclusion. I hope that it will not be necessary to go to a Division on this issue. If it were, I would probably feel the need to support my noble friend Lord Blair, but I hope that the Minister will say enough to reassure me.
Lord Hope of Craighead (CB)
My Lords, the Minister may recall that on a previous occasion, when this matter came up in relation to Clause 126, I spoke very briefly in support of the amendment that was then being proposed. The reason I spoke was because two Members of this House, who are not present this evening, made speeches which—to put it as gently as I can—cast doubt on the confidence one should have in the police. I got to my feet not because I agreed with them but because it seemed to me that there was an underlying issue that ought to be mentioned. It is public confidence. It may well be that, because of the very high profile of the posts we are talking about, particularly the post of commissioner, public confidence will be of the greatest importance. For that reason, which I hope the Minister will recall was discussed last time, I will make the same point again, this time in relation to this much more focused and, I hope, more helpful amendment.
Baroness Smith of Basildon
My Lords, I am sure that the Minister did not think I would pass up this opportunity. This is an interesting amendment. I was quite surprised to hear the noble Lord, Lord Blair, say that the Minister was going to resist the amendment, because when I read it, especially after our previous debate, I assumed, possibly wrongly, that it reflected what the Minister had said in previous debates and therefore set out the position for clarity in the Bill. Clearly, nobody in your Lordships’ House has criticised in any way the possibility of a police officer from overseas, suitably qualified, becoming a chief constable or the Commissioner of the Metropolitan Police. That is not at issue.
What is at issue is that they should be subject to the same conditions and rules as any member of the UK police force. I am surprised if the Minister does not think that there should be an explanation or guarantee of some form of appropriate security vetting, in the same place as the Bill says that a police officer from an approved overseas police force can be appointed. The change is being made in the Bill; I would have thought, therefore, that any qualification to that change should also be made in the Bill.
I entirely agree with the comments of the noble Lord, Lord Condon, and I hope that the Minister will be able to give some reassurance on this, and will take it away and come back at Third Reading with something that is appropriate and addresses the concerns that have been expressed. I do not think that it is unreasonable. The noble and learned Lord, Lord Hope, made a very strong point about public confidence. It serves public confidence well to understand that if a police officer comes from overseas, particularly in the role of commissioner, which is a counterterrorism role unlike any other chief constable role in the entire country, they will be subject to the same kind and level of vetting as any police officer taking the job from within the UK.
I hope that there has been some misunderstanding or error in the report that the Minister intends to resist the amendment. He has his piece of paper there; I hope it does not say that. I hope he will want to think again and come back. I think that he will have got a sense from your Lordships’ House that there is widespread support for what seems to be a very moderate clarification, and I hope that he can accept it.
Baroness Kennedy of The Shaws (Lab)
My Lords, I, too, support the amendment. I have had reservations about the use of the power to stop and search without having reasonable suspicion. I think it lends itself to a certain amount of abuse and undermines relations with minority communities. I know this because of cases that I have done and I have heard this point expressed frequently by families in those minority communities.
The amendment raises the issue of stopping and searching and then going further. It involves more intrusive powers than simply stopping and searching. Often stopping and searching is used—I think the House should know this—as a way of recruiting informants. It does not very often produce a case against anybody but it provides opportunities for those involved in the security services to have a word with young men and to see whether they are likely to be of assistance and might be recruited as informants.
The concern that we have with this amendment is about the facility that is open to the powers that be at the airports and ports and wherever people are stopped to take computers and clone their contents. That should involve some reasonable suspicion before it is done. We should be able to move to that higher threshold of an officer being able to justify why that is being done. It would be very rare that it would be done without some explanation by an officer as to why they had made the decision to retain the content of mobile phones or whatever it is. This is another of those steps of intruding into the lives of citizens. We should be very anxious that this is not done without officers knowing that they will have to give some account of why they have sought to do this. That is not expecting too much of those who are at the borders and who are providing us with this kind of protection.
That is why the amendment has been put together. We are talking about the next stage. I do not believe officers usually move to that next stage without their having reasonable suspicion and without therefore being able to give an explanation as to why they need the extra powers that are involved in this new legislation.
Lord Hope of Craighead
My Lords, I put down my name in support of this amendment for the purpose of drawing attention to a case decided by the Supreme Court in October 2013. It was not mentioned or discussed in the report of the Joint Committee on Human Rights, but it has a bearing on this issue in connection with the amendment moved by my noble friend Lord Pannick. Before I do that, I should like to express my appreciation of the amendments tabled by the Minister in relation to the protection of people who are detained and also the timetable which is set out in the amendments.
I had occasion to look at this very closely in a case from Scotland following on a decision by the European Court of Human Rights in Strasbourg in a case called Salduz. It is clear that the amendments which the Minister has tabled are necessary in order to meet the requirements of the convention for the protection of people who are detained, in particular the right to consult a solicitor. I appreciate the careful way in which that problem has been addressed.
As for the timetable, it is appropriate that this should be in the Bill. In 1980 a provision was introduced in Scotland to give the police the power to detain somebody prior to arrest. In that provision, the timetable was set out. It had to be amended in the light of recent developments following the case of Salduz, but again the timetable was in the Bill. I believe that, for the protection of the subject, that is where it should be, so I welcome the way in which these amendments have been framed.
In the Supreme Court, the case R v Gul was concerned with the definition of terrorism, which is set out in Section 1 of the relevant Act, and the concerns expressed about the breadth of it. Terrorism, as defined in that, has a succession of various acts. People’s perception of what amounts to terrorism can vary according to what their perception is of what is going on and where these activities are being conducted. It is not necessary to discuss that issue today, but it has a bearing on what may be passing through the mind of the port officer who has the power to detain and on the need for some protection of the subject because of the way in which that power may be exercised.
I should declare an interest as I participated in that judgment and was particularly concerned about this issue in our discussions. At the end of the judgment, in paragraph 64, the Supreme Court noted that,
“under Schedule 7 to the 2000 Act the power to stop, question and detain in port and at borders is left to the examining officer. The power is not subject to any controls. Indeed, the officer is not even required to have grounds for suspecting”,
which is of course the whole point to which the amendment draws attention. Although the court went on to add that it was not concerned with that issue in that appeal, the last sentence of the judgment reads:
“Detention of the kind provided for in the schedule represents the possibility of serious invasions of personal liberty”.
It is worth bearing in mind in support of the point that has been made that that has been a concern expressed by the Supreme Court in addition to others.
The noble Lord, Lord Pannick, was kind enough to mention what I said in the case of O’Hara, which was the first judgment I ever delivered in this House many years ago. The test which I set out, and which has been recognised, is not particularly exacting. It is partly subjective and partly objective. The subjective part is important because it looks only to what the officer says was passing through his mind at the time. The objective part is that somebody else stands back, takes what was passing through the officer’s mind at the time he was exercising his judgment and asks the question “Did that justify what he did?” That was how the power given to the police was expressed. It does not set a particularly high standard, but it is a protection. It is that protection which is absent at the moment and which I respectfully suggest is in need of being written into the Bill to meet the concerns that have been expressed by various people, including the Supreme Court.
Lord Lloyd of Berwick (CB)
My Lords, perhaps I could just have a brief word on Amendments 93A and 93B. There has been much discussion over the years as to whether the right to stop under Schedule 7 should be available only on reasonable suspicion. I am glad that the amendment now before the House does not go that far. The arguments in favour of and against the power to stop without reasonable suspicion are all very well set out in the excellent recent report of David Anderson, the reviewer. Unfortunately, that particular question was not included in the public consultation which took place in 2011. My view has always been in favour of the power to stop without reasonable suspicion. There is no real analogy with the power to stop under Section 44 of the Terrorism Act. But the power to detain—that is, the power to detain under paragraph 6(1)(b)—seems to me altogether different.
By the time that power is exercised, the person in question will have been questioned for up to an hour. All the benefits of the power to stop without suspicion, which I strongly believe in, particularly the deterrent effect of that power, will by then have accrued. Moreover, the examining officer will have had ample time during that hour to explore whether there are grounds for reasonable suspicion. The balance of arguments seems therefore to shift decisively in favour of reasonable suspicion being the test at that stage. For that reason, I support the amendment.
Perhaps I may say in passing how glad I am that the maximum period of detention has been reduced from 24 hours, as it was when I was considering these matters many years ago, to the six hours which is now proposed. That seems to me altogether admirable, as are the other amendments put forward by the Government.
Lord Hope of Craighead
My Lords, before the noble Baroness sits down, it might help if I were to say that my understanding is that applications for leave to appeal have to be in writing. The grounds for seeking leave have to be written out in the application, and usually these things are disposed of on paper, so it is essential for success to have the grounds properly stated on paper. One has to bear in mind—this may be the noble Baroness’s point—that these things will be put together by somebody who is in custody, within a very short time limit, who may find it difficult to get access to legal advice. Without expressing a view one way or the other, I suggest that the practicalities of this measure need to be very carefully considered against the position of the individual who is having to comply with what would be now required.
Anti-social Behaviour, Crime and Policing Bill
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Baroness Tonge
My Lords, with the leave of the House, I should like to carry on with my remarks, as I had intended to introduce Amendments 87A and 87B. They seek to make it an offence under the law of England and Wales if someone is,
“the parent or guardian of a child, and … gives consent for that child to enter into marriage before the age of 18 unless the written consent of both parties to the marriage has been obtained”.
The reason we have tried to clarify this is due to a lot of experience from all around in our all-party group. I must emphasise that we also want these provisions to apply to marriages contracted abroad, not just in this country. I must apologise for not being present at Committee stage; I was abroad at another conference so my noble friend Lord Rea spoke on my behalf.
We have good laws in place to make forced marriage illegal and these are strengthened by this Bill. I would like to commend the excellent work being done by the Forced Marriage Unit at the Home Office, which really is commendable. These amendments seek to close a loophole which I think still exists concerning children between the ages of 16 and 18. In general, not every forced marriage is a child marriage, but every child marriage is usually forced; hardly any take place with the agreement of the participants, who are often tricked into marriage by their families on the pretext of going on holiday or some treat or other.
According to the international Convention on the Rights of the Child, to which the UK is a signatory, a person is a child until the age of 18. I notice that in Committee some noble Lords felt that, if children could vote at 16 and join the Armed Forces at 18, they should be allowed to marry at 16 with the consent of their parents. However, I would contend that marriage is a very binding contract indeed, from which it is very difficult to escape. A young person can leave the Armed Forces and can refuse to vote, but they cannot easily get out of a marriage that was contracted sometimes without their consent.
If young people want to have, hopefully protected, sex—which many do; I was not born yesterday—they can do so legally after the age of 16. If they want to live together in many cultures now, they can do so legally after the age of 16. So what is wrong with asking them to delay the legally binding step of marriage until they are 18? That, however, is not the point of my amendment, but I had to say that because I feel very strongly about it. I know that noble Lords rejected that in Committee.
At present, any parent who wishes to force a marriage on their son or daughter can do so by claiming that consent has been given if the child is between 16 and 18. In Clause 109(1)(b), the Bill mentions the “full and free consent” of the individuals concerned. However, it does not specifically mention this group between 16 and 18, who can marry with parental consent. I think this needs clarifying. We must make as certain as possible that children involved have given their consent too.
I was horrified years ago, when I worked among Indian and Pakistani communities as a doctor, at how many of my patients were whisked away from school and married as soon as they were 16 years old. I remember two girls in particular, who were twins, who had done absolutely brilliantly in their O-levels. They were crying as they told me that it was now time to go back to the subcontinent to be married to men whom they had never seen, one of whom was illiterate. All their hopes of university and a career were dashed by parental consent to their marriage.
I thought the practice had nearly died out until the all-party group which I chair produced a report called A Childhood Lost. We heard from many witnesses who related their stories of being taken abroad for a holiday, only to be shut away on arrival until their marriage to an unknown groom had taken place. There were others whose religious marriage had been contracted during early childhood on a holiday and then was ratified with parental consent as soon as they were 16 years old. All of this happened with total disregard of the wishes of the young people concerned.
We know that marriage as early as 16 is a public health issue as well as a violation of human rights. It takes away opportunity for education and economic independence; it is associated with violence, rape and sexual abuse; it contributes to higher rates of maternal morbidity and mortality and contributes to poor child development. We know that around 5,000 to 8,000 young people are at risk of being forced into marriage in this country every year, based on research done by our Government in 2011. A higher number may not have been counted because they were over 16 and it will be argued that the parents have not forced the marriage but have given their consent.
This is my last ditch attempt to try to strengthen this Bill. I ask the House to support these amendments that I have put forward, which apply to Scotland as well, as an attempt to ensure that consent to marriages has also been given by the two children to be married in that age group. I think that the consent should be given verbally and in writing.
Lord Hope of Craighead (CB)
Before the Minister replies, perhaps I could say a word about Amendment 87B, which, as the noble Baroness has just explained, applies to Scotland. I am sure that it is very well intentioned and I hope that I will not alarm the noble Baroness too much when I say that there is an error in the way that these two amendments are presented. They assume that the law of Scotland is the same as the law of England. It is not.
The law of Scotland—which may alarm the noble Baroness—is that anyone over the age of 16 is free to marry, and parental consent is not required. That was common law for generations and is written into Section 1 of the Marriage (Scotland) Act 1977. It is actually one of the reasons why Gretna Green attracted attention. People could elope over the border to Gretna Green, establish residence in Scotland and marry without parental consent, provided they were over 16 and there was no other impediment to marriage.
That is a bit of history; the point is that the amendment as worded does not really fit in with Scots law. If the amendment were to attract Minister’s sympathy, I respectfully suggest that it would have to be altered. Proposed new subsection (2A)(b) would have to say that a person commits an offence if he or she,
“gives consent for that child to enter into marriage”,
that requires parental consent,
“unless the written consent of both parties to the marriage has been obtained”.
It is perfectly possible that two people living in Scotland want to contract a marriage somewhere else where parental consent is needed. In that situation, indeed, if the amendment is reworded it would have some force. But as it is put, it would seem to completely revolutionise the law of Scotland as a whole. That is not really appropriate because of the existing statutory position in Scotland. An amendment as radical as that would need the consent of the Scottish Parliament, which I do not think has been obtained. If the wording was changed, as I suggest, to remove the words,
“before the age of 18”,
and to add, “which requires parental consent”, it would fit exactly with what the noble Baroness intends.
Baroness Tonge
I thank the noble Lord for his advice. I was aware of the situation in Scotland, but I was not aware that we could not actually alter the amendment in the way that I intended. However, I thank him for his advice.
Anti-social Behaviour, Crime and Policing Bill
Lord Hope of Craighead Excerpts(10 years, 10 months ago)
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Lord Taylor of Holbeach
Perhaps I may respond to that point. The Government are determined to try to stamp out smoking as a habit, particularly among young people, so they are being proactive. However, what I am saying on this particular issue and this particular amendment is that the advocates of proxy purchasing as an offence—the noble Lord, Lord Faulkner, drew attention to the wide number of people who are, and I said it myself in my speech—will be helped in their advocacy if they can provide the Government with the information they need to make sure that if at a future date they choose to implement such a policy through legislation, they will have the information on which to base that decision.
Lord Hope of Craighead (CB)
My Lords, I want to make a point about the evidence. It may be my fault, but I am not entirely clear what evidence the Minister is looking for. It is quite difficult, until such a measure is in force, to know whether it will be effective. Of course the Scottish experience is there as an example, and it may be that the noble Lord is relying on that, but the fact is that until the measure is actually put on to the statute book, you cannot be absolutely certain one way or the other that it will be effective. On the other hand, there is certainly evidence, which has been referred to, that people with knowledge of the way these things work are asking for the measure. Is that not evidence to justify putting the measure on to the statute book, taking the view that it may do some good and would certainly do no harm?
Lord Taylor of Holbeach
I have always been cautious about taking the latter point that the noble and learned Lord, Lord Hope of Craighead, has made. I always appreciate the noble and learned Lord’s contributions, but just putting something on the statute book because it might work is probably not a particularly good way of going about things.
Having said that, the Government are serious about evaluating this issue. We know that it has been rather disappointing in Scotland—I think the noble and learned Lord would know that from his own experience—and I gave some illustration of that. It may not be the solution, but it is certainly a possible solution, and I urge the House to allow the Government to evaluate that in a proper fashion.
Lord Davies of Coity (Lab)
My Lords, I spent 28 years representing people in the retail sector and I support this amendment. In the main, the people we are talking about are women and girls under the age of 18. They are the ones who face up to the criminals who enter the stores and do damage to individuals, who are frightened to death doing their job. As I said, in the main we are talking about young girls and women in the retail sector in this country. We are not talking about big, bruising men who can handle the situation but women and young women who are frightened to death in carrying out their work. I expect the Government to do as the amendment suggests and protect the people who are being damaged by villains and criminals who enter stores up and down the country.
Lord Hope of Craighead
My Lords, the noble Lord, Lord Foulkes, was kind enough to mention me, and perhaps I may add a footnote to what he said about Scotland and the measure that deals with emergency workers. Of course, an assault, in both the law of Scotland and the law of England, is a crime, and in a sense you could say that it was not necessary to pass that measure at all because any court when presented with evidence of an assault would pass an appropriate sentence if the individual was convicted.
However, the value of the measure, which got a lot of publicity, was its deterrent effect. After all, the last thing that one wants is to have the assault committed. The Government in Scotland were trying to reduce the very unfortunate crescendo of assaults on emergency workers—firemen, ambulance people and so on—and to some extent the measure appears to have had that effect. Therefore, the deterrent effect is as valuable as any sentencing. As I said, in an ideal world, if something was a crime, the individual tempted to do the act described as criminal would refrain from doing it. It is because of the deterrent effect that I think there is a good deal of force behind the amendment.
Baroness Hamwee
My Lords, I thought that at the previous stage the noble Lord, Lord Condon, had it right when he said he feared that,
“the real mischief they and we might seek to address is not the absence of suitable offences but the absence of action”.—[Official Report, 4/12/13; col. 255.]
I asked questions of my noble friend about sentencing, the aggravating nature of that type of offence and so on, and I am afraid that I have not changed my mind about those two aspects.
I am interested in the definition of “worker” in the noble Lord’s amendment. One qualifies, as it were—that is not quite the right term but he will know what I mean—only if one is “physically present”. Reading that, I wondered how that works with his requirement for malice in subsection (2) of the proposed new clause. When I saw the word “malice”, I thought that he had in mind, for example, someone who—possibly for very personal reasons—does not like people who work in jobcentres but then discovers that his neighbour works in a jobcentre. Is that malice towards all such people for that sort of reason or are we talking about something very personal? Does it mean being in the workplace or in the sort of situation that I have suggested, hanging around until one’s neighbour comes out of the house and having a go at him for that reason?
I was also interested in subsection (4) of the proposed new clause. If I remember rightly—I have not gone back to check—I think that on the previous occasion the noble Lord talked about “evidence from a single source”. That seems to be a matter for the courts. We should not tell the courts how to assess evidence. If he is saying that there is some restriction on the way they are working at the moment, it may be a different matter—but, again, that made me wonder where the noble Lord was going with this.
On the aggravating nature of the offence, we have to be careful not to devalue the importance of that approach to sentencing. This, of course, is not the only aggravating factor for the courts, but the Sentencing Council does a very important job in identifying appropriate aggravating factors.