Transport for London Bill [HL]

Lord Kennedy of Southwark Excerpts

Monday 8th February 2016 Grand Committee

[Lord Kennedy of Southwark (Lab)]

My Lords, I thank my noble friend Lord Dubs for enabling us to have this debate today in Grand Committee. We should all be grateful to him for enabling us to highlight the important issue of social housing in London.

As we have heard, we have a housing crisis in London, and in particular a social housing crisis, which the Government are doing nothing to help us with. Only 11,000 council homes were built last year compared to 33,000 across the country in Labour’s last year in office. It is so disappointing that we are seeing people on modest incomes being driven out of central London. London is a wonderful city—probably the best city in the world. That is why the Olympics and Paralympics were such a success—the languages spoken, the community ties from all over the world, the art scene, the sport, the history, and the spectacle of London. However, for that to continue to grow and to keep London at the top we have to make proper provision for people on all incomes doing every job you can imagine to be able to live in this great city, from emptying your bins to sweeping the street, to working as a classroom assistant through to social workers, lawyers and business men and women, to some of the highest earners on the planet, who run some of the biggest companies in the world. Social housing provision with proper social rents has to be part of the housing tenure throughout this capital city.

If the noble Lord, Lord Ahmad of Wimbledon, comes back and talks about all the affordable housing in London, it would be better if he called it “unaffordable housing” for large numbers of people living in the capital. Where I live in Lewisham, which is a lovely part of London with rows and rows of Victorian terraced housing, people in the private rented sector pay over £2,000 a month to live in an ordinary terraced property, which is £24,000 a year. The new national minimum wage, which will come into force in April, will mean that you will earn £14,000 a year. Even if two people earn £20,000 in London, paying rent of £24,000 a year does not give a huge amount to live on for all the other expenses.

I am very grateful for the briefing note and for the meeting I had with TfL last week. I can understand that TfL must be very frustrated at the time the Bill has taken and the fact that it is still making its way through Parliament. It was originally deposited in 2010, as my noble friend Lord Dubs said. It is in everyone’s interest that these private Bills from TfL and other public bodies make much speedier progress through Parliament. I am sure that TfL would have preferred that the Bill was decided on, either way, in a much more timely fashion. It is probably not in his remit but can the noble Lord, Lord Ahmad of Wimbledon, talk to whoever is responsible for managing the process of getting these Bills through Parliament? I suggest that the time for a review is well and truly upon us. Six years on an eight-clause Bill, even though it is opposed, is far too long.

The most controversial clause is Clause 5; it is connected with the Earl’s Court development we heard about before, which delivers such a poor rate of return on affordable homes. TfL will say that the development would have gone ahead anyway, as the land it controls is not crucial to the development. I also understand and accept that in order to deliver a transport system that can meet the ever-growing demands of London, options need to be looked at for maximising revenues and minimising costs. That is of course due to the budget cuts we heard about earlier in today’s debate. However, when it comes to the redevelopment, rezoning and using public land to build housing, TfL has a responsibility to London and Londoners not only to seek to maximise the money it receives for the assets but also to ensure that it understands its responsibility and demonstrates its commitment to using its assets in a way that delivers the housing schemes, big or small, which it is involved in. That will enable Londoners to live in their community in a property they can afford to live in and be a part of this great city—and the affordable rent model is only one part of that. As I said, charging 80% of market rent is not affordable for many people in parts of London; in fact, it is totally unaffordable. My plea to TfL would be to make proper provision for property at social rents in schemes that it is involved in.

I understand that we will shortly be advised by the noble Baroness, Lady Grey-Thompson, of some amendments to be made to the Bill later, and I am happy with what is proposed. I concur with the questions of my noble friend Lord Dubs. With that, I welcome the Bill back to your Lordships’ House and we will look with interest at its progress through this House and the other place with the amendments we will shortly be advised of.

Immigration Bill

Lord Kennedy of Southwark Excerpts

Wednesday 3rd February 2016 Lords Chamber

[The Lord Bishop of Norwich]

My Lords, I do not want to detain the Committee because we have heard the significance of these amendments, to some of which I have added my name. I want to follow what the noble Lord, Lord Judd, has just said because we all know that the consequence of not providing for these young people when they leave the care system is serious because they are going to remain in this country.

Given that these young people are likely to remain here and to go under the radar, I simply ask the Minister to comment on the figures in relation to removal directions served on former unaccompanied young people in 2014. As I understand it, 245 removal directions were served on former asylum-seeking unaccompanied young people, but only 15—less than half of 1%—were forcibly removed. What I cannot see is how any of the proposed legislation is going to do anything other than make that situation worse and make those young people more destitute. The Children’s Society has plenty of evidence of those young people ending up sleeping on buses and selling the currency of their bodies to have somewhere to stay. I cannot think that that is the sort of response that we in this House want or the sort of society we want to create.

I will not go through the list of cases that the Children’s Society has given me of people who have now reached the age of majority and are receiving some support in education and training, putting themselves in a position where they can make a contribution to our society. But if we implement a system whereby they do not get support after the age of 18, as others do, we are storing up enormous trouble for ourselves and huge financial as well as emotional costs.

[Lord Kennedy of Southwark (Lab)]

My Lords, the amendments in this group concern Clause 38 and Schedule 9. I declare an interest as an elected councillor in the London Borough of Lewisham.

As we have heard, many noble Lords have concerns about this part of the Bill, particularly the effect it may have on children who do not understand their immigration status and who, on reaching the age of 18, can find themselves in considerable difficulties. As we have heard, Schedule 9 aims to remove most local authority obligations under the Children Act to care leavers with unresolved immigration status.

We have to be clear that in these circumstances we are dealing with very young people—young adults but also very vulnerable people—and before approving these provisions we need to be satisfied that proper arrangements are in place to look out for these young people, who, as the noble Lord, Lord Alton, and other noble Lords have said, are at risk of serious abuse and other terrible things. They will lose their entitlement to support from the local authority where they have lived for many years and will not be allowed to remain with their foster parents. This is a particularly tough decision, along with the young adult not being able to benefit, on leaving care, from the services of a personal adviser to provide advice and support in place of a parent.

The Bill is flawed because it assumes that everything is okay, everything has been done properly and there is nothing to worry about—“Just use those criteria to assess them”. But it must be understood that these people will have come here as young children, they can be traumatised and have no understanding of why they are here and why they are on their own. They may have witnessed terrible things that no person, let alone a child, should witness. Is it really correct that we just assume that everything has been done properly when the reality may be very different? The best the young person could hope for would be being placed in Home Office accommodation, potentially far away from their foster family and the area they have grown up in and have come to understand. It can be far away from their existing support networks and their legal representatives. They will have to establish that they are destitute and have been refused asylum and that there is a “genuine obstacle” to leaving the UK.

Amendment 230D, moved by the noble Lord, Lord Alton of Liverpool, seeks to deal with the problem where the young person, on reaching 18, has not had the correct advice and could have been entitled to register as a British citizen or otherwise, and it makes provision for the schedule to have no effect in these cases. It is an excellent amendment, which I hope the Minister will accept or at least reflect on before we come back to this issue on Report. It will be important for the Minister to set out carefully what safeguards are in place to ensure that injustices are prevented from happening and are not built into the provisions in Schedule 9. I endorse all the questions asked of the Minister by noble Lords in the debate.

Amendments 235 and 236, in my name and that of my noble friend Lord Rosser, seek to maximise parliamentary scrutiny and ensure that Parliament has the opportunity to debate and approve by resolution the regulations before they come into force. These regulations have such far-reaching consequences that it is right that this level of scrutiny takes place, and I think there are some government amendments on the Marshalled List which have a similar effect.

Other probing amendments in this group, in the names of the noble Earl, Lord Listowel, the noble Baroness, Lady Hamwee, the right reverend Prelate the Bishop of Norwich and other noble Lords, seek to improve the provisions and increase the protections available to care leavers. They all have the support of these Benches and it will be interesting to hear the Minister’s response to the issues they raise. There are a number of government amendments, which I am sure the Minister will explain in detail shortly. I may have some further questions after hearing his explanation.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, my Amendment 239B relates to asylum seekers who came to this country as children, who then progress into higher education. They are currently subject to the rules that provide for higher fees in education because they have come from abroad, so they face the charges that are faced by those who apply to come to this country, as though they were people living elsewhere.

I am seeking an amendment to the Bill to allow for those young people not to be subject to the charges faced by foreign students and, since they have come as asylum seekers and are living now in this country, being provided the protection and safe haven of this country, we might therefore provide for tuition fees to be charged at the lower rate that is charged to people in this country. I should have risen before my noble friend on the Front Bench, but I had not realised that my amendment was in this group. That is the basic argument being made for Amendment 239B.

I have direct experience of this because, as I think I have mentioned in the House before, there is a small foundation which gives bursaries to people who are particularly disadvantaged. A category of them are asylum seekers, so we are very conscious of the problems that young people have when they come to this country and are given a safe haven. They are then often the most diligent at sixth-form colleges and in further education, and go on to higher education, but they face this incredibly high bill, although they have very little resource at all. We can help them in the tiniest ways, but they are facing the increased fee as if they were a well-to-do person applying to come to study in this country from abroad. So we think that the Government might want to look at this matter.

Immigration Bill

Lord Kennedy of Southwark Excerpts

Wednesday 3rd February 2016 Lords Chamber

Moved by

[Lord Kennedy of Southwark]

231: After Clause 38, insert the following new Clause—
“Review of the rules relating to refugees reuniting with family members
(1) The Secretary of State must undertake a review of the current rules on refugees, or those granted humanitarian protection, reuniting with close family members in the United Kingdom.
(2) The review under subsection (1) must consider—
(a) the implementation of the provisions in the EU Dublin III Regulation (Regulation (EU) No 604/2013) for spouses or children under 18 with refugee status or those granted humanitarian protection to be reunited with family members in the United Kingdom;(b) options for allowing British citizens to sponsor close family members recognised as refugees or granted humanitarian protection; and (c) options for extending the criteria for family reunion to include children, grandchildren, parents, grandparents, spouses, civil or unmarried partners or siblings who have refugee status or have been granted humanitarian protection and have close family members in the United Kingdom.(3) A copy of a report on the review under subsection (1) must be laid before both Houses of Parliament within six months of the passing of this Act.”

[Lord Kennedy of Southwark (Lab)]

My Lords, Amendment 231 and Amendment 234, which will be spoken to shortly by the noble Lord, Lord Hylton, both seek to put in the Bill revisions concerning the reuniting of refugees with their family members who are resident in the UK. Again, we are dealing with people in some of the most desperate situations in which you could find yourself. The UK has always had a proud record of being a safe haven for people in such circumstances. The British Red Cross, in its very helpful briefing, provided a number of examples of families who have been split up due to the age of the children, although the whole family has fled a conflict zone. Noble Lords will understand the distress that causes.

Our amendment is very simple. It asks the Secretary of State to conduct a review, which must consider,

“the implementation of the … EU Dublin III Regulation”,

in addition to allowing close family members who are recognised refugees or have been granted humanitarian protection to be sponsored by relatives who are British citizens living in the UK, and,

“options for extending the criteria”,

for who can be considered. A copy of the report,

“must be laid before … Parliament within six months”.

The review would help the Government deal with a number of issues and to examine whether we have the best arrangements in place when dealing with refugees and reuniting them with their families in the UK. That means having the best and fairest rules in place, not just those that seem the harshest.

Some of the issues that could be looked at in the review include the fact that there is no legal aid for sponsors in the UK, as legal aid for this area ended in 2013. Has that policy improved the situation? The rules are restricted to immediate family members only, which means partners and children under the age of 18, so older children, just over the age of 18, are not eligible. There are also issues about adopted children, who are at present regularly refused entry while other children are allowed entry. Then there are the European Union’s Dublin regulations and their application. There are matters such as the applicant not being given the opportunity to submit further evidence if their application is deemed insufficient, forcing them to go through the lengthy appeals route while living in precarious conditions. Is that the UK’s best option for dealing with these difficult issues? Is it the best way to deal with families or to treat vulnerable families? I beg to move.

[Lord Hylton (CB)]

My Lords, I start by thanking the all-party trio who have added their names to Amendment 234. Its purpose is to make family reunion easier. It has been drafted by the British Red Cross, to which I am very grateful. Your Lordships will notice that the proposed new clause applies only to those with international protection needs—those who have a genuine fear of persecution or who have been forced to flee their homes and country by war, ethnic clearance or genocide. It does not, therefore, open the door to uncontrolled flows of economic migrants.

It is important to know that refugees and protected people in Britain may already bring in their spouses and children. Our amendment would widen the category to include close family members—that is, children aged over 18, dependent parents and grandparents, civil partners and siblings. Such close kin are essential to a full normal family life. Sponsorship from Britain is, however, limited in the amendment by requiring the incomers to be registered with the UN High Commissioner for Refugees or equivalent authority in other countries. Secondly, they should not be a charge on public funds when they are here. In this context, your Lordships may like to note also Amendment 234AA in the name of the noble Baroness, Lady Hamwee.

The limitations that I have mentioned are important ones, so let no one say that this would be a free-for-all. Subsection (1)(b) of the proposed new clause provides a second legal channel for claims to be made by close family members from overseas. I argue that it is desirable to have in this way a kind of two-way process, available both from this country and from overseas.

I would like to illustrate the critical importance of family reunion given what I saw when visiting Calais almost two weeks ago. The enterprising mass of refugees and migrants in France have made their way so far, against the odds, for thousands of miles, from Africa and the Middle East. They certainly include some who have close family in Britain. Indeed, the French social agency that showed us round had met some such people, and pointed out to us one young man in particular who had lived in England and was searching in France for his next of kin. Another category that we should also welcome is those who have worked for British forces—for example, as interpreters in Iraq and Afghanistan. We have some responsibility for such people who risk their lives for our men. We abandon them at our peril.

Sample studies done in France show that about half of those now at Calais and Dunkirk want to come to Britain, while another quarter are probably willing to apply for asylum in France. I have clear advice for our Government: it will be no good sending staff from UK borders to explain conditions here to the camp dwellers or to tell them to apply first in France. Such staff will simply not be credible. What I suggest might work would be to send volunteers from ethnic minorities in Britain to advise on British conditions and on how to apply to come here. That would work even better if our amendment were to be accepted.

While in Calais, we met three deputies from the French Parliament. They were keen to see their own Government speed up asylum applications. They wanted better information for camp dwellers and better co-ordination of relief and volunteer agencies. I trust that these French parliamentarians would agree with me that the French authorities should not bulldoze some of the shacks and tents before alternative accommodation is made available.

To return to our amendment, the Government may say that the third Dublin regulation already provides for family reunion. But who among the refugees knows about this obscure and highly technical, if well-intended, provision? In how many cases have family members actually been able to use it to achieve reunion in this country? I suggest that family reunion is a blessing to all. It strengthens the families themselves, it helps social cohesion in our communities and it assists the Government by increasing family incomes and reducing the need for services and benefits. Perhaps that may not happen in year one, but it will happen sooner rather than later.

We all know that the Home Office has huge powers of resistance, but I trust that it will not choose to resist this win-win proposal. Our amendment is somewhat stronger than Amendment 231, while still allowing the Secretary of State some discretion on the drafting.

--- Later in debate ---

[Lord Green of Deddington (CB)]

My Lords, I am afraid that we are not quite of one mind in this House. I take all the points that have been made and I entirely understand the sympathy that has been expressed for individual cases. However, we have to look at this in a wider context. This, after all, is not the 1930s. We face a refugee crisis in Europe which is absolutely without precedent.

As the noble Lord, Lord Kennedy, explained, Amendment 231 refers to an EU directive which the UK opted into in 2013 before the refugee crisis erupted in southern Europe. However, its provisions are not exactly as described in the amendment before us. Article 8 requires that, in the case of asylum applications from third-country minors, the determining member state should be the state in which a family member legally resides, where that is in the best interests of the child. That is fair enough.

Article 9 goes further in stating that, if an applicant has a family member—unspecified—in another state who is a beneficiary of international protection, that member state should consider the application. That is fair enough.

Article 10 goes further still, stating that where an applicant has a family member in a member state where a first application is pending, then that state is responsible for the applicant’s application. We signed up to that and that is what would happen if people in Europe applied for asylum in Europe and asked for their case to be transferred to the UK. Noble Lords will be aware that a recent court case has underlined that possibility.

However, the suggestions in Amendment 231 go well beyond that EU directive. In paragraph (b) of proposed new subsection (2) the review is widened to consider all British citizens, not just those already granted asylum, and they would all have the right to sponsor family members. In paragraph (c) of proposed new subsection (2) the reviews suggested would consider extending the criteria to a potentially enormous number of relatives of those who have already been granted asylum in the UK. I think it is quite well known that in the last 10 years about 87,000 applicants have been granted asylum or humanitarian protection in Britain. We have every right to be proud of that. However, if each of those had five or six relatives, we would be deciding to admit more than half a million people who would be granted the right to join those who have already been given protection here. Even that is a very conservative estimate. It does not include those granted asylum in earlier years and does not take account of the fact that in some countries families are even bigger than that.

The fact that you have to apply in Europe in order to take advantage of the Dublin convention is a strong argument for saying that this is not the way that we should go. The main effect of going down this road would be to widen Dublin III and massively increase the flow of people into the EU in the hope of benefiting from these changes. That is a very unwise step to take at this time. If there are thoroughly deserving cases—I am sure there are many—they should be considered on an individual basis outside the rules and let us be as just and sympathetic as we can be. But simply to go down the road of widening Dublin III seems not only unwise but extremely untimely.

[Lord Kennedy of Southwark]

We are asking only for a review at this stage—that is all Amendment 231 asks for.

[Lord Green of Deddington]

Yes, I understand that. I am really pointing to what some Members are seeking as the result of that review—and even that would not be the best step to take at this point.

--- Later in debate ---

The rules on Dublin have been explained. I suppose that what we are saying is that we have looked at this carefully and we think that families should be kept together in the best interests of the child. In the case of the Middle East, it might often be best to keep families together in the region rather than locating them here. We have provisions under the Syrian vulnerable persons scheme and are working with the Red Cross to ensure that people understand the current rules under Dublin which they are entitled to exercise. There are exceptions for very difficult cases so that we can be as receptive and sensitive as possible. We therefore do not feel the need for either of these amendments at this stage.

[Lord Kennedy of Southwark]

My Lords, I thank all noble Lords who have spoken in this debate: the noble Lord, Lord Hylton, my noble friend Lady Kennedy of The Shaws, the right reverend Prelate the Bishop of Norwich, my noble friend Lady Lister, the noble Baroness, Lady Hamwee, the noble Lord, Lord Green of Deddington, and the noble Lord, Lord Bates. These are serious matters where refugees need to be treated fairly and compassionately. The amendment in my name is only asking for a review while that in the name of the noble Lord, Lord Hylton, goes a bit further but is specific as to who it would apply to. I hear what the Minister has said and I will reflect on that. I may return to this issue on Report but, at this stage, I beg leave to withdraw the amendment.

Amendment 231 withdrawn.

Immigration Bill

Lord Kennedy of Southwark Excerpts

Monday 1st February 2016 Lords Chamber

[Lord Bates]

Under one of the proposals introduced for stop-and-search powers, we are now collecting those data. The ability to make the statements that I have, about how stop and search has actually been reduced, is a very good thing. This is such a sensitive area but also one where I believe a significant amount of good work has been done in policing. We would not want anything in this to in any way undermine that wider effort to improve community cohesion and trust between the police and the communities which they serve. I would be very happy to organise a meeting with interested Peers between Committee and Report to explore this area further, to try to offer further reassurances and to hear more about any specific concerns.

[Lord Kennedy of Southwark (Lab)]

I do not think the noble Lord has really answered the concerns raised by my noble friend Lady Lawrence or by the noble Lord, Lord Paddick, who was an experienced police officer in the Brixton area—he talked about the problems of the Brixton riots and so on. Whatever the intentions of the provisions, there are real concerns about what will happen in practice. Could he say a little more about that?

[Lord Bates]

The noble Lord is right to point to the immense experience of many noble Lords who have spoken, such as that of the noble Lord, Lord Paddick, in policing and of the noble Baroness, Lady Lawrence, in representing victims of crime over many years. That is why I am suggesting, in the light of the concerns that have been expressed, that we ought to look at this. Sometimes there is an overfocus on this particular element, without recognising the wider context of the Bill. This is not being targeted simply through stop-and-search powers but is consistent with the wider aim to reduce the ability of people who are here illegally to live a normal life while in the UK—such as by having bank accounts, being able to rent properties, being able to work and gain employment, or being able to gain a driving licence. In the wider context, it fits, but there are some specific concerns here. It is a very sensitive area. Therefore, I am very happy to meet noble Lords to discuss it further.

--- Later in debate ---

Amendment 182 is consequential. Amendment 183 would provide that regulations under these new sections of the Immigration Act 2014 would be affirmative instruments. I beg to move.

[Lord Kennedy of Southwark]

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

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

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

[Lord Ashton of Hyde (Con)]

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

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

[Lord Kennedy of Southwark]

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

[Lord Ashton of Hyde]

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

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

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

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

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

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

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

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

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

Immigration Bill

Lord Kennedy of Southwark Excerpts

Wednesday 20th January 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, the amendments in this group are in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, with the exception of the final two, which are in the name of the noble Lord, Lord Bates. They are all concerned with Schedule 1 to the Bill and are generally technical in nature.

Amendments 78 and 79 aim to remove from the schedule amendments to the Licensing Act 2003, which would bring that Act into line with the proposals in the Bill. These amendments highlight the very unsatisfactory nature of the Bill that has been brought before us today, and for that reason, if nothing else, they are useful.

The next part of this group seeks to delete and insert certain words to make changes in emphasis and to clarify at what point action is sought to be taken. To remove the word “appropriate” and insert the word “necessary” in its place would raise the requirement from what is deemed “suitable” or “fitting” to achieve the objective or outcome to something where those exercising the power would have to be satisfied that it is “essential” or “indispensable” to achieve the desired outcome. I agree with the points made in this respect by the noble and learned Baroness, Lady Butler-Sloss.

I will not spend any more time on this as there will be more substantial debates later today, but I hope that the noble Lord, Lord Bates, will be able to answer the important points that have been raised in this initial debate. The final two amendments, which are in the name of the noble Lord, Lord Bates, seek to clarify further what is proposed in the provisions in the schedule, and I am satisfied with them.

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, I thank the noble Baroness for speaking to her amendments. Before coming to the questions that have been asked, I will briefly speak to Amendments 92 and 93 in my name. Schedule 1 to the Bill concerns the powers to prevent illegal working in premises licensed to sell alcohol or provide late-night refreshment in England and Wales. These are two technical amendments to Schedule 1 which aim to ensure that those who have applied for a premises licence or a personal licence for the sale of alcohol or the provision of late-night refreshment, and who have not had a decision on that licence application before these provisions have commenced, will have their application determined on the basis of the licensing law in force at the time they made their licensing application.

Amendments 78 to 91 are proposed by the noble Baroness, Lady Hamwee. Schedule 1 integrates protection against illegal working into the existing licensing regime, including by adding the Home Secretary to the list of responsible authorities for the purpose of the Licensing Act, by making the prevention of illegal working an objective of the licensing regime and by requiring licence applicants to have the requisite right to work. The amendments proposed by the noble Baroness would adjust the threshold at which the Secretary of State may object to a licensing application. They would permit a court to consider whether the appellant has been granted leave to enter or remain in the UK after the date of the decision being appealed against, in effect duplicating the proper role of the tribunal—the Immigration and Asylum Chamber. The amendments would also make changes to the proposed “entitlement to work” definition from the Licensing Act 2003 to prevent immigration status and, in particular, the lack of it being relevant to alcohol or late-night refreshment licensing decisions.

We do not believe that these amendments would achieve the objective of preventing illegal working in this high-risk sector. They would not provide the necessary clarity for licensing authorities or the Home Office in respect of the proposed power to withhold personal and premises licences based on the absence of the applicant’s right to work in this sector or concerns about the risk of illegal working in the premises concerned. They would also result in inconsistency with the standards employed in the wider licensing framework. Changes made by the Police Reform and Social Responsibility Act 2011 have given licensing authorities greater power to tackle alcohol-related crime and disorder, and it is appropriate that the same level of evidence and discretion is also afforded in respect of the prevention of illegal working.

The Home Office decision to object to the issue of a premises licence to prevent illegal working will not be taken lightly. Schedule 1 makes it clear that the Secretary of State may object only where she is satisfied that the exceptional circumstances of the case are such that issuing a licence would be prejudicial to preventing illegal working. Schedule 1 also provides the necessary clarity on the circumstances in which a person’s immigration status should render them ineligible to hold a licence to sell alcohol. The proposed amendments would permit an individual to apply for a licence even though they are not permitted to work in the UK, or where their immigration status prevents their doing work related to licensable activity. This cannot be right. An applicant who has been refused a licence but is subsequently granted leave would simply need to make a fresh application and include the required information that provides evidence of immigration status.

Let me turn to some of the particular points that were made. The noble Earl, Lord Sandwich, asked what evidence exists that this is a particular problem. Of the civil penalties served for illegal working in the year to June 2015, 82% were served on the retail industry or hotel, restaurant and leisure industry sectors. A large proportion of these sectors hold premises or personal alcohol licences. Enforcement activity is decided as a consequence of intelligence and does not affect only companies that employ a small number of employees.

The noble Baroness, Lady Hamwee, asked what consultation had taken place. The changes proposed to the Licensing Act in the Bill have been subject to consultation with interested partners, including licensing authorities, the police, and representatives of the licensed trade. The consultation was undertaken last summer via a number of workshops, which were attended by the Local Government Association, the Institute of Licensing, licensing officers from seven licensing authorities, representatives of the national policing lead on alcohol, and the police and crime commissioner lead on alcohol. The second workshop included industry partners such as the British Beer & Pub Association, the Association of Convenience Stores, the Wine and Spirit Trade Association and the Association of Licensed Multiple Retailers. These partners provided a significant contribution to shaping our proposals.

Let me turn to perhaps the most interesting point, raised by the noble and learned Baroness, Lady Butler-Sloss, which is the subject of most of the amendments in this group: the use of the term “appropriate”. This was introduced across the licensing regime in the Police Reform and Social Responsibility Act 2011. We want the test in standards to be consistent across the two pieces of legislation. If we ended up with a differently worded test in the Bill before us, that might require consequential changes to the 2011 Act to bring them into line. I have listened carefully to the arguments that have been made and the point made by the noble Lord, Lord Kennedy, on behalf of the Opposition, and I am very happy to look at this issue ahead of Report to see whether any change is needed. However, that is the rationale for the choice of language.

With that assurance, I hope that the noble Baroness will feel able to withdraw her amendments, and in doing so I commend my amendments to the Committee.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I have a number of amendments in this group; most of them are amendments to the government amendments and most of them come in pairs.

Amendment 99A is the first amendment of these pairs and deals with the licensing authority having to set an expiry date for a licence for someone who has been granted limited leave to enter or remain in the UK. The Government are proposing that the licence period,

“must end at or before the end of the leave period”,

which could mean a significantly shorter time before the end of the leave period. My amendments would mean that the licence would end at the end of the leave period. It would be fairly obvious that I would want to ask why the Government think it necessary to make provision for it to end some time before the end of the leave period. Presumably, the licensing authority can grant a licence for a shorter period in any event. I can see the need that it should not go on beyond the end of the leave period, but why does it have to be less?

Amendment 99B is the first of the other pairs of amendments. If leave is extended, the licensing authority can set the duration of the licence, which must not be more than six months. Again, I would ask why. I am proposing that the licence should coincide with the leave period. I make the point that I made in the previous group of amendments that we are dealing with people’s livelihoods.

Amendment 117 is pretty much the same as the amendment in the previous group about whether an appeal, having been successful, can be entertained when a licence has been refused and is appealed on. I lost a grip of what the Minister said on that and will have to read Hansard, but he will probably have the same answer.

On Amendments 120 to 124, Schedule 2 provides for guidance from the Secretary of State to the licensing authorities in determining whether an applicant for a licence is disqualified because of his immigration status. My amendments amount to a requirement to consult with representatives of the licensing authorities, including Transport for London.

[Lord Kennedy of Southwark]

My Lords, this group comprises a large group of government amendments in the name of the noble Lord, Lord Bates, and a number of amendments in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. It is clear that the government amendments are included to make matters clear and consistent across all relevant lines of legislation. That in itself is a good thing. But for me that further illustrates the point that this legislation has been rushed and ill thought out and these revisions should have been in the Bill from the start.

Also, the Secretary of State is given powers in these government amendments to amend fine amounts by secondary legislation. That may be perfectly acceptable in this case. But the Government like their secondary legislation, hiding behind the limited ability of Parliament to hold them to account in such circumstances, but that I think is a wider issue for the House.

I have looked at the amendments put down by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, and with respect to Amendment 117, they have a good point to make. It is not unreasonable for the courts to take into account that, after the date of a decision being appealed against, the person has been granted leave to remain in or enter the UK.

I take it that the other amendments are probing in nature in order to assist the Committee in further understanding the intention of the Government and satisfying noble Lords that what is being proposed is achievable, and of course they can be retabled later in the course of the Bill if we think it necessary. I very much accept the point made by the noble Baroness, Lady Hamwee, that these are important issues that concern people’s livelihoods.

[Lord Bates]

My Lords, I understand the nature of the amendments and I understand them better now that the noble Baroness has spoken to them. At the same time, I should like to provide some reassurances on the points she has made, in respect of taxi and private hire licence holders who have limited leave to be in the UK, that any licence granted must be for the full duration of the leave period. This fails to recognise that taxi and private hire licences cannot be granted for more than three years, while operating licences cannot be granted for more than five years. As the licence holder’s immigration leave may expire after the relevant maximum licence duration, the Bill must enable licences to be granted for a shorter period.

Amendments 99B, 99D, 101, 106, 118B, 122, 126 and 131B relate to leave being extended by virtue of Section 3C of the Immigration Act 1971 when a person makes an application in time for an extension of leave, an administrative review or an appeal. While I appreciate the reasons behind these amendments, the Government believe that it is reasonable to limit the duration of a licence issued during a period of Section 3C leave to six months. The provisions would not work in practice without a stated duration, since licensing authorities cannot grant licences of unspecified duration. The six-month duration mirrors the period of an excuse provided to an employer who performs a right to work check on a migrant during a period in which they may have Section 3C leave to remain. If at the end of the six-month period the licence holder has been granted further leave, he or she will be able to demonstrate this leave and obtain a new licence.

Amendment 117 has already been considered by noble Lords in the context of alcohol and late night refreshment licences. The purpose of an appeal is to ascertain whether the original decision was correctly made. It would therefore not be appropriate for the court to consider a subsequent immigration decision. An appellant who has subsequently been granted leave would need to make a fresh application and include the required information which provides evidence of immigration status.

Amendments 120 to 124 would require the Secretary of State to consult licensing authorities and Transport for London before issuing relevant guidance on whether an applicant is disqualified from holding a licence because of their immigration status. This will be done anyway. In formulating these provisions, the Home Office, with the assistance of the Department for Transport, consulted the Local Government Association, licensing authorities, the Institute of Licensing and Transport for London.

In the light of this explanation, which I hope has addressed the key points made by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, I hope that she feels reassured enough not to press her amendment.

--- Later in debate ---

Moved by

[Lord Kennedy of Southwark]

134: After Clause 12, insert the following new Clause—
“Asylum seekers: permission to work after six months
(1) The Immigration Act 1971 is amended as follows.
(2) After section 3(9) (general provisions for regulation and control) insert—
“(10) In making rules under subsection (2), the Secretary of State must provide for persons seeking asylum, within the meaning of the rules, to apply to the Secretary of State for permission to take up employment, including self-employment and voluntary work.
(11) Permission to work for persons seeking asylum must be granted if—
(a) a decision has not been taken on the applicant’s asylum application within six months of the date on which it was recorded, or(b) an individual makes further submissions which raise asylum grounds and a decision on that new claim or to refuse to treat such further submissions as a new claim has not been taken within six months of the date on which the submissions were recorded.(12) Permission for a person seeking asylum to take up employment shall be on terms no less favourable than those upon which permission is granted to a person recognised as a refugee to take up employment.””

[Lord Kennedy of Southwark]

My Lords, Amendment 134 in my name and those of my noble friend Lord Rosser, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Alton of Liverpool, would allow those asylum applicants who have been waiting for longer than six months for a decision on their asylum application to be allowed to work. The latest immigration statistics show that about 3,600 applicants have been without an initial decision for longer than six months. The only exception that they are presently allowed is that after 12 months an asylum seeker can apply for permission to work, but only in national shortage occupations.

When this is compared to other countries in the EU, we are certainly not generous. All EU member states, with the exception of the UK and Ireland, permit applicants to work after nine months, and some have gone further: Belgium and Denmark permit work after six months, and in Germany it is after three months. For many asylum seekers, not being allowed to work means that they are unable to develop and maintain skills, and for professional people this can have a very difficult effect on their future employment prospects in this country, if in due course they are granted asylum status and allowed to work, or return to their country of origin or move elsewhere. Allowing asylum seekers to work after six months would also cut the cost to the taxpayer, as those who found work would no longer need to be supported by the taxpayer.

Amendment 134A, in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, would make a small but important change, allowing asylum seekers to work after 12 months as a matter of right without having to apply for permission. I support the aims of that amendment as well. I beg to move.

[Baroness Hamwee]

My Lords, as the noble Lord has said, my name is to this amendment. I am particularly delighted that it has been moved from the Labour Front Bench since this was not something on which they felt able to support us during the last Parliament. This is something that we sought to achieve then even though we were part of the coalition Government. We have tabled this amendment to the Bill in these terms in the Commons. I am sure that my noble friend Lord Roberts of Llandudno will have a good deal to say on it, as he has had a Private Member’s Bill on the subject and argued for this proposition many times.

I will not take long, but I do not apologise for the fact that the arguments are not novel. According to the latest immigration statistics, I am told by the Refugee Council, over 3,600 applications for asylum have been without an initial decision for longer than six months. As the Refugee Council comments, when you take into account their dependants, that is nearly 5,000 people living on little over £5 a day in asylum support who are unable to work. It seems to us that applications should not drag on and, as the noble Lord said, six months, which is the Home Office target, is not overly ambitious. In any event, what is to be gained by a restriction that continues up to the 12-month point?

It seems that a lot is to be lost: contribution to the economy through work and taxation; savings for the state on asylum support; and, as for the individuals, the impact on their self-esteem, mental health, possible—probably likely—loss of skills, and the ability to find employment when the period comes to an end. It also seems that this restriction reinforces exclusion. For those who stay, their community integration is important and we should not delay it, because more than half of the asylum seekers who come here stay.

This is a very topical point, as a colleague, Suzanne Fletcher, who was a councillor in the north-east and who is still a very active Liberal Democrat, has been all over the media today on the issue of the red doors, on which the Times has reported—doors that were painted red so that the occupants could easily be identified as immigrants. Of course the Minister, James Brokenshire, immediately criticised that, and I believe that the Government are taking steps there. However, from the emails I have seen on this subject today, it has taken years of campaigning to bring this to attention. That shows what power the media have, because Suzanne had taken that matter to the National Audit Office and to one of the Select Committees in the other place.

Would relaxing the current restrictions be a pull factor? Is there evidence of that? I suspect not. If your reasons for coming here are economic rather than to seek asylum, I would have thought that six months would be quite a deterrent in itself.

Our Amendment 134A deals, as the noble Lord has said, with the 12-month period. Currently, if you are here for more than 12 months, although you may be able to work, your work is confined to the “shortage occupations” as designated by the Home Office—for the same reasons, of course, that could be applied to the six months. In addition, however, the list of shortage occupations, which I had a look at over the weekend, seems to be made up almost entirely of technical or professional occupations and often requires references from previous employers, which I suspect are by definition unavailable, or requires UK qualifications. Therefore, asylum seekers would not be likely to get such jobs, because the period of their stay is uncertain, even if they were qualified to do them. They are more likely to get low-skilled jobs that British citizens, frankly, are often unwilling to undertake.

--- Later in debate ---

[Lord Green of Deddington]

My Lords, I think that I may find myself in a small minority in this Committee, although, I have to say, certainly not in the country. The first point to make is a very general one: it is a mistake to generalise about asylum seekers. Roughly 50% of them claim only when they are discovered. Therefore, it would appear that they come, at least initially, as economic migrants. Of those who then do claim, half are refused, but only half of those who are refused are removed. That is why I suggest that we need to be a bit more discerning about people who are referred to simply as asylum seekers.

As for the amendment, the Committee will be aware—indeed, it has already been mentioned—that the most recent EU directive, No. 33 of 2013, requires that asylum seekers should have access to the labour market after nine months if the asylum claim is still pending. The UK, Ireland and Denmark have, of course, opted out. Nevertheless, the amendment proposes a time limit of six months. It would also remove the current requirement for the job to be on the shortage occupation list, despite the fact that the EU directive provides for such provisions. Therefore, in these two respects, the amendment goes beyond the minimum standards now required by the EU directive, from which we have, as I said, opted out.

Let us be clear that the effect of the amendment would be to make the UK not the most but one of the more generous countries in Europe in terms of access to the labour market, and there is no doubt that that would act as a pull factor for both asylum seekers and economic migrants. The extreme case is Sweden, which until recently allowed asylum seekers to work on arrival. Of course, the numbers went up and up and now it has had to close its borders. So it is absolutely clear that the ability to work is, in that case and more generally, an incentive to people when they choose a country in which to seek asylum.

It is also worth pointing out that people are queueing up in their thousands in Calais—in a country which is perfectly safe. They have every right to seek asylum in France—they would have a slightly less good chance of getting it—but they do not. They want to come here despite the fact that they cannot work for 12 months. I hope that it is the general nature of our society that attracts people, and let us be proud of that, but I come back to the point about balance when it comes to setting up an immigration and asylum system. There has to be a balance between reasonable treatment of people, half of whom are in serious need, and the need not to attract those who may well not be genuine asylum seekers. For goodness’ sake, anyone who has read the newspapers in the last three months will surely understand the need to be very careful on that front.

[Lord Kennedy of Southwark]

The noble Lord referred to the position in most of the European Union where people have to wait for nine months before they can work. Is he saying that he would support a time period of nine months?

[Lord Green of Deddington]

No. I am saying that we should keep it at 12 months in order that we are not more attractive than other countries on that point.

[Lord Kennedy of Southwark]

Amendment 134A in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, says that asylum seekers should get permission to work after 12 months as a right. Would the noble Lord support that amendment?

[Lord Green of Deddington]

The short answer is no. We have an asylum system which does not work as fast as people would like, but let us improve the system. The obvious answer is to process the claims more quickly and then this question would not arise. However, I would go back to the original, existing system.

--- Later in debate ---

[Lord Kennedy of Southwark]

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

[Lord Ashton of Hyde]

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

[Lord Ashton of Hyde]

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

[Lord Kennedy of Southwark]

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

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

Amendment 134 withdrawn.

Immigration Bill

Lord Kennedy of Southwark Excerpts

Wednesday 20th January 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, the amendment in this group in my name and that of my noble friend Lord Rosser would require the Secretary of State to lay before Parliament an evaluation of the national rollout of the 2014 right-to-rent scheme before the offences listed in the clause came into force. Again, this issue was raised at Second Reading, and there is considerable concern about this position. Landlords can find themselves in some difficulties as they are not immigration officers and do not have the expertise to make determinations. The penalties for offences committed under new Sections 33A and 33B are severe: on conviction on indictment, a penalty of up to five years’ imprisonment, a fine, or both; and on summary conviction, a prison term of up to 12 months, a fine, or both.

The amendments in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, have considerable merits. Amendment 159 would stop any orders coming into force other than in the pilot area until the Secretary of State had published an independent evaluation of these sections of the Immigration Act. The noble Baroness, Lady Hamwee, was right to say that we do not have a very long period in which to make a proper evaluation. She also made a valid point about the protected characteristics in Amendment 148.

I hope that the Minister will be in a position either to accept these amendments or at the very least to reflect on them before coming back to this issue on Report. As I have said, the Bill is in a bit of a mess and, unlike the Modern Slavery Act, we have not had the pre-legislative scrutiny required. That is why we are having all these difficulties as we go through Committee.

Will the Minister think about the effect on the rental sector and the injustice that can be done not only to landlords and people who rent out to lodgers but to prospective tenants who may be unable to rent easily just because they are foreign, have an accent or dress differently, or their documents are not understood by lay people because they are in a foreign language? They will suffer unfairly due to the Government’s proposals here not being properly thought through, as the noble Baroness, Lady Hamwee, referred to.

[Earl Cathcart (Con)]

My Lords, I support the amendment about delaying the rollout of the pilot scheme. This seems to focus on the likelihood of landlords potentially asking all those with foreign names or accents for evidence of their right to rent. I thought that the whole point of a pilot scheme was to ensure that what was being put forward was actually working as intended. However, as mentioned by the noble Baroness, Lady Hamwee, the Joint Council for the Welfare of Immigrants found that two-thirds of landlords had not fully understood the code of practice on preventing illegal immigration or indeed the code of practice on avoiding discrimination, and that 50% of those who had been refused a tenancy felt discriminated against, while 40% of tenants in the pilot area had not been asked for any identity documents. That is hardly a resounding success for the pilot scheme, yet the Government want to roll out this contentious scheme across the country next month. That cannot be the right answer.

--- Later in debate ---

[Lord Bates]

That is an important point. Students are of course exempt because their right to be in the UK will have been checked by their university in granting them accommodation. The fact that they are exempt is because those checks are happening, and the social sector is exempt because the checks are happening there. All we want is for those checks to happen in the private sector as well.

[Lord Kennedy of Southwark]

Can the Minister say a bit more about who is doing the evaluations? The points that the noble Baroness, Lady Sheehan, and the noble Lord, Lord Best, have made clearly could not be further apart.

[Lord Bates]

In that respect I might suggest that the partial solution which we came across for our last debate, which was on overseas domestic workers, was to look at organising a meeting in between Committee and Report. However, it would probably be more useful for the House to have the noble Lord, Lord Best, at such a meeting if he were willing to meet with colleagues on that basis. We would certainly be happy to facilitate one to explain more about the process, but we have tried to be as transparent as possible about this. It has been a long trial and there has been a thorough evaluation. It will also continue to be under review because this is not the completion of the process; we are simply talking about moving to the next stage of rollout, which is to England. There will be further opportunities for evaluation thereafter. I hope that, with those suggestions, I might have prevailed upon the noble Baroness to withdraw her amendment at this stage.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I am conscious of the time, but we need to spend just a few more minutes on this. I shall not take too long. Noble Lords who have spoken have identified very serious drawbacks in the legislation, even if one ignores the thrust of these provisions, as I do not wish to do. If they are to be implemented in the way in which the Government wish, the points that have been made are very well made, and I am sorry that we kept the two noble Lords so late in order for them to be able to make them.

I have my name to a number of amendments in the names of the noble Lords, Lord Rosser and Lord Kennedy. I think the noble Lord, Lord Kennedy, is about to speak to them.

On Amendment 152, I want to make a point that once again has come from Crisis, which says that there are a number of situations where a claim for asylum fails but the person is unable to return to his country because there is no stable state to return to, or it is unclear where they should return to—we are familiar with these problems, of course. It says that at the very least the Home Office should clarify these people’s status with regard to the new eviction process.

[Lord Kennedy of Southwark]

My Lords, this group of amendments contains some very sensible protections for landlords, who could find themselves in difficulties and at risk of prosecution and a fine, imprisonment or both, although they have taken all reasonable precautions and have no intention of breaking the law. Landlords, as has been said before, are not immigration officers. One of the concerns about this section of the Bill is that people will take reasonable precautions but will still find themselves in difficulties and possibly at risk of prosecution.

The amendment in the name of the noble Lord, Lord Howard of Rising, is both simple and effective, and he has made a compelling case here today: the landlord would not commit an offence if they had taken reasonable steps and there was no reasonable cause not to believe that other persons who met the first and second conditions were residing at the property.

Amendment 149 seeks to afford landlords protection when they are prohibited from evicting a tenant under new Section 33D(4), and Amendment 150, in the name of the noble Earl, Lord Cathcart, would protect landlords who were acting diligently to evict people who were disqualified as a result of their immigration status. Again, the noble Earl has made a compelling case as to why the amendment should be supported.

I have no issue with Amendment 153 in the name of the noble Lord, Lord Bates. The remaining amendments are in the names of my noble friend Lord Prosser, myself and the noble Baroness, Lady Hamwee. These important amendments would ensure that individuals and families could be evicted only following due legal process, by removing from the Bill the provisions to grant new and extensive powers to landlords outside the oversight of the courts. I say to the Minister that the Government really are creating a very difficult situation here. This whole part of the Bill puts significant pressure on landlords, with tough penalties and little protection, along with extensive new powers with no oversight by the courts.

There is a real risk here, as has been said by other noble Lords, that landlords will just not rent the property to anyone who looks as though they might be more of a risk, and great injustices could take place. To make it worse, the courts are to be excluded from the process of evicting people if they are resident in a property. This is not right, and the Government are going to have to make some movement on these matters again. I hope the Minister will agree to meet Peers who are interested in these matters and campaigners before we come back on Report.

[Lord Bates]

My Lords, I shall speak to Amendment 153 in my name and respond to the amendments spoken to by noble Lords. Government Amendment 153 provides powers for the Secretary of State to prescribe the form of the notice that the landlord must serve in relation to the eviction powers in new Section 33D, and the manner in which it is served. This amendment provides clarity and consistency to landlords, tenants and High Court enforcement officers about the circumstances in which High Court enforcement officers will be permitted to enforce a notice. The Secretary of State may prescribe the form or forms to be used by order, subject to the negative procedure.

I understand the concern that has been expressed thoughtfully and passionately, particularly by my noble friends Lord Howard of Rising and Lord Cathcart, that reputable landlords who have made a mistake or been deceived would be committing an offence immediately when they receive a notice from the Home Office that a tenant is disqualified from renting. However, I reassure them that the focus of these measures is on the minority of rogue landlords who deliberately flout the law. They are the intended target of the legislation, as the noble Lord, Lord Best, said in his excellent summary on the previous amendment. They are not intended to be used against reputable landlords who may have made a genuine mistake. In fact, if we look at the Bill in its present form, new Section 33A(3) says that the condition for an offence to be committed,

“is that the landlord knows or has reasonable cause to believe that the premises are occupied by an adult who is disqualified as a result of their immigration status”.

That threshold of proof, “knows or has reasonable cause to believe”, is very high.

The offences in the Bill are to do with landlords and agents knowingly renting to illegal migrants or doing so when they have reasonable cause to believe that they are doing so. They are not strictly about a failure to evict. While a desire to safeguard the position of responsible landlords is understandable, it would not be right to afford a grace period of 28 days to the worst offenders, such as the one that would result from Amendment 149. Such landlords deliberately rent to and may also exploit illegal migrants. Likewise, it would be difficult to be certain in any particular case what would constitute “proceeding diligently” for the purposes of Amendment 150. I am concerned that this would also provide rogue landlords with a way to avoid prosecution.

Amendment 148A is unnecessary because, under the right-to-rent scheme introduced by the Immigration Act 2014, the landlord should perform document checks to a reasonable standard. Should they do so, they will not be liable to a civil penalty, nor will they be subject to prosecution under this legislation unless they are explicitly notified or become aware when they undertake subsequent checks that an occupant is an illegal migrant.

[Lord Kennedy of Southwark]

Nobody here wants to protect the rogue landlords—all these amendments are about protecting the good landlords and they relate to genuine concerns about that. It would not be the first time that mistakes were made; people get things wrong, officials get things wrong. We are trying to ensure that we protect the good landlords, not the rogue ones.

[Lord Bates]

I accept that, and the noble Lord is making a genuine point. Certainly that is the intent, as we have said, behind the legislation. If evidence comes to light during the passage of this legislation through this House that that may not be the case, clearly the Government will want to take note of that, because it is explicitly not the intent to catch the vast majority of genuine landlords. There are a small number of rogue landlords.

Immigration Bill

Lord Kennedy of Southwark Excerpts

Monday 18th January 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I shall start my remarks by associating myself with the introductory remarks of the noble Baroness, Lady Hamwee, who talked about the unsatisfactory way the Government have handled the Bill so far. I also agree that the first part of the Bill, which concerns the Director of Labour Market Enforcement, has no place in this legislation and is a separate matter. The lack of pre-legislative scrutiny was referred to by the noble Lord, Lord Alton—whose remarks, again, I very much agreed with. This is no way to legislate. It reflects poorly on the process and risks undermining other legislation such as the Modern Slavery Act 2015.

When the noble Lord, Lord Bates, responds to the debate, I think that he owes it to the Committee to give a proper explanation of why we are in this situation. Let us be clear. The Government are in charge of the Bill and of the timetable, and their legislation should be dealt with much better than this. As I say, I hope that he will give a full explanation to the Committee when he responds.

This first group of amendments seeks in the main to improve what is presented here by putting into the Bill clarifications and duties to consult. The noble Lord, Lord Bates, may be suggesting something similar shortly, but that has not necessarily been implied. I am generally supportive of what is being proposed in the amendments tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, while Amendment 11 has been proposed by myself and my noble friend Lord Rosser. I will deal with Amendment 11 first. We are seeking to put a clear duty on the Director of Labour Market Enforcement to consult with civil society and voluntary organisations in the preparation of the annual report that he will have a duty to present to the Secretary of State each year. If a proper report is to be prepared for the Secretary of State, information will need to be gathered and assessed, and it is often voluntary organisations and civil society that will acquire the information that will be vital to the production of a report of substance to ensure that the duties of the director remain relevant and can identify the modifications which are necessary to achieve that.

As has been said, the amendments in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, clarify that it must be the Home Secretary who appoints the Director of Labour Market Enforcement, and that the Business Secretary and relevant Scottish and other departmental Ministers must also be consulted. They also place a duty on the Director of Labour Market Enforcement to consult with Ministers in the devolved institutions and various officials exercising powers under labour market legislation on the preparation of a labour market enforcement strategy that will be submitted to the Home Secretary. Again, if in his response the noble Lord, Lord Bates, is going to suggest that this is not necessary, can he please tell the Committee how the Secretary of State will ensure that the report they receive is both timely and relevant to the matters in hand, and give us some direction as to how they should be consulted?

[The Earl of Sandwich (CB)]

My Lords, I was waiting for the noble Lord to mention his Amendment 11 before saying that I am delighted to see it here. The Government will recognise the role in the Modern Slavery Act of the coalition of NGOs which really helped to put the Bill together. It should be emphasised that we want to see the same thing again with the director in this case. I hope that that will borne in mind throughout the consideration of these amendments.

--- Later in debate ---

[Lord Bates]

Well, I have to say in that respect, I have not turned over two pages, but I may well be on to the next group. If so, and with that helpful prompt from the ever-helpful Baroness, I give way.

[Lord Kennedy of Southwark]

I thank the Minister for his helpful explanations of his remarks. Will he confirm that, because of the situation we find ourselves in with these amendments coming at such a late stage—civil society will want to look at them again—there will be plenty of time outside the Chamber for noble Lords and campaigners to meet the Minister to discuss these things in more detail?

[Lord Bates]

I can certainly say that. That is a very helpful intervention on a number of levels. I know that officials found our meetings last week and before Christmas very helpful. I think that that will continue to strengthen the work of the Committee. With that, I will pause my remarks and hope that the noble Baroness will feel able to withdraw her amendment at this stage.

Immigration Bill

Lord Kennedy of Southwark Excerpts

Monday 18th January 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, the noble Lord, Lord Ashton of Hyde, explained that he was hoping to make things a bit easier for noble Lords with the reprinting. I welcome that and wish him well with it.

The amendments in this group are all government amendments, with the exception of Amendment 18, in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, which seeks to amend a government amendment. I am grateful to the noble Lord, Lord Ashton of Hyde, for explaining these amendments. One of the amendments refers to functions that were considered for inclusion. Can he help the Committee by saying what functions were considered and then not included? I would be interested to know that in relation to Amendments 16, 17 and 24.

I can see the value of being able to add further non-compliance matters by regulation. However, this should be by the affirmative and not the negative procedure, as proposed here. Such matters often benefit from a short debate in the Moses Room when additions are proposed. I think that many in the Committee would agree that this legislation is not to the same standard or quality as we saw with the Modern Slavery Bill, for example. For that reason, if for no other, we should have the affirmative rather than the negative procedure.

It could be suggested that Amendments 19, 20, 21, 22 and 23 better define the labour market functions within the scope of the labour market enforcement strategy, by reference to specific legislation; I can see that point.

Government Amendments 243 and 244 both require the use of the affirmative procedures. That is welcome, but it contradicts the earlier decision to use the negative procedure, which I have referred to on this group. The last amendment, Amendment 246, would take out a reference to the Director of Labour Market Enforcement. Yes, that is fine, but I wonder whether the Government should perhaps have taken the whole thing out of the Bill and brought a separate Bill back.

[Baroness Butler-Sloss (CB)]

My Lords, I welcome the greater powers for the Gangmasters Licensing Authority, both in this group of amendments and in a later group. The authority has done extremely good work ever since its inception in legislation and I am delighted that there will in due course be powers for its officers to take steps under PACE. I appreciate that that provision is not in the present group, but I want to say that in case I am not here when that point comes up.

I want to put two points to the Minister. First, how far afield is he expecting the Gangmasters Licensing Authority to roam? In particular, does he have in mind either the hospitality or the construction industry, each of which should at some stage be under the control of that authority, or possibly this new director, in a way which is not covered at present? Secondly, if in fact the Gangmasters Licensing Authority is to have further powers, as it will, it is crucial that it has greater resources. That matter should be absolutely upfront because if its officers are allowed to become prevention officers—to be able to arrest and to do much more than they can at the moment—it really does not have sufficient resources to carry that out, let alone anything further that needs to be done.

[Lord Ashton of Hyde]

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

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

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

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

[Lord Kennedy of Southwark]

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

[Lord Ashton of Hyde]

I hear what the noble Lord says.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, Amendment 12, moved by the noble Baroness, Lady Hamwee, puts in the Bill a new clause that puts beyond doubt that this part of the Bill cannot be used to permit the alteration of a strategy of a person entitled to prepare a labour market enforcement strategy paper. This is a sensible addition to the Bill and one that I hope the Minister—whether it is the noble Lord, Lord Bates, or the noble Lord, Lord Ashton, who responds—will be able to support, or at least agree to look at carefully and perhaps bring something back on Report.

I am not sure that Amendment 14, also proposed by the noble Baroness, Lady Hamwee, would bring much to the clause, although I am not against it in principle. Amendment 38 makes it optional for the Director of Labour Market Enforcement to,

“gather, store, process, analyse and disseminate information”.

I have given thought to the amendment and listened to the reasoning behind it. In fact, it may be quite useful to have this information, but the noble Baroness made some excellent points about resources and the useful work already done by the Gangmasters Licensing Authority.

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, for giving us the opportunity to discuss this important area further and to look at the production of an evidence-based, annual labour market enforcement strategy as a key part of the role of the Director of Labour Market Enforcement. By following a single, overarching strategy with a shared view of risk, enforcement will be better co-ordinated and more effective.

A real concern was expressed during the consultation exercise on labour market enforcement, which has been referred to. The Government have of course responded to that, giving rise to the amendments referred to earlier. In many ways, this touches on the point raised by the noble and learned Baroness, Lady Butler-Sloss. In terms of responsibility for strategy, the Gangmasters Licensing Authority currently reports up to the Home Secretary. Initially, it was I think part of Defra, but it was moved across to the Home Office because we felt that that was a more logical place for it to sit, particularly in the light of the introduction of the Modern Slavery Act. So the authority refers up to the Home Secretary, while the HMRC national minimum wage team feeds up its strategy to the Secretary of State for Business, Innovation and Skills, as does the Employment Agency’s standards inspectorate. So at the moment there are two different reporting lines. The proposal is that, rather than effectively having two separate reporting structures, there is an initial feed-in to the Director of Labour Market Enforcement, who then reports to the joint Secretaries of State. That may in fact result in fewer problems.

Amendments 12 and 14 appear to limit the director’s proposed role by not permitting his strategy to alter the strategies set out by any of the other enforcement bodies or by not binding the enforcement bodies to delivering the director’s strategy. The director’s strategy is not intended to undermine or take precedence over the enforcement bodies’ strategies; rather, we expect those strategies to be informed by the director’s strategy as they contribute to tackling labour market exploitation.

The GLA board will continue to be responsible for delivery of the GLA’s functions. What will change is that the delivery of those functions will sit within a wider vision of tackling labour market exploitation, an issue I will address in due course. The Government’s amendments will add the functions of the GLA board to the list of labour market enforcement functions. Furthermore, the GLA board will have a duty to exercise its functions in accordance with the director’s strategy. We believe that this will ensure that the enforcement bodies and the director can work together more effectively.

Amendment 38 brings me to the intelligence hub. Clause 6 as drafted gives the new director the duty to lead an intelligence hub that forms a coherent view of the nature and extent of exploitation and non-compliance in the labour market—something that the consultation and the Committee have accepted as being absolutely necessary. The director will use the information gathered to formulate the annual strategy for labour market enforcement. It is essential that the director have the power to gather information from those involved in labour market enforcement to enable them to set the annual strategy. Without this, the strategy will not be evidence-based and will therefore be unable to improve the effectiveness and co-ordination of enforcement, which is our objective. If the duty on the director to gather information was removed from Clause 6, that would lead to a different role than the Government have committed to creating.

To enable the intelligence hub to work, we intend to create a statutory framework to enable information and intelligence to be shared appropriately, with the necessary safeguards. We will bring forward amendments at Report to achieve this. I reassure noble Lords that the new intelligence hub will not replace existing information-gathering arrangements in the individual enforcement bodies, which I know was a point of concern. They will continue to gather and analyse their own data in order to plan their own operational activity. This will then be fed into the new intelligence hub and the director’s strategic plan, providing an up-to-date picture of areas where workers are at risk of abuse. However, the director’s intelligence hub will be wider. It is important that the director have the power to exchange data and intelligence with other enforcement bodies whose legislation is often breached by the same rogue businesses.

I also reassure noble Lords that we are in the process of identifying what resources, including IT infrastructure, will be required to enable the new information hub to be effective, and that the Government recognise this is just as important as creating the statutory framework. I hope my explanation will be helpful to the noble Baroness and that she may therefore feel able to withdraw her amendment.

Immigration Bill

Lord Kennedy of Southwark Excerpts

Monday 18th January 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have some amendments in this group. The first is an amendment to government Amendment 47, on the power to make an LME order. Under subsection (1) of the new clause, the court must be,

“satisfied, on the balance of probabilities, that the person has committed, or is committing, a trigger offence”.

My amendment would change the balance of probabilities to “beyond reasonable doubt”. A trigger offence relates to offences under other legislation as well as being an offence in itself so I do not understand why the civil standard of proof is thought to be appropriate. If the answer to this is that it is in effect covered by the new clause in Amendment 49, which is different, then is there not a problem in having differing standards of proof? I would be grateful for an explanation here.

Amendment 50A is an amendment to government Amendment 50. It would leave out the provision that one of the purposes of a measure—a “prohibition, restriction or requirement”—included in an LME order is bringing it,

“to the attention of persons likely to be interested in the matter”,

and other points. If this is about communication across the actors in labour market enforcement, should it not be for the director to make sure this happens? Why is it a measure in a court order? It does not seem a matter for the courts. I can see that it may be necessary, for instance, to inform employees about an order but it seems very cumbersome and not appropriate in this context.

My final amendment in the group is an amendment to government Amendment 57, which, dealing with “Offences by bodies corporate”, defines an officer of a body corporate as including a “manager”. My amendment would take that out. I am used to seeing directors, secretaries and so on as officers of a company but a manager—though I admit I will be very out of date on company law provisions—to me means something quite different and not with the same responsibilities as a director of a company.

[Lord Kennedy of Southwark]

My Lords, here again we have a series of government amendments in varying degrees of complexity. I want further information on some of these amendments in relation to other requirements and punishments relating to people who commit the offence under various Acts as listed in government Amendment 43 and other amendments in the group. Is the noble Lord saying that in all cases of alleged offences, first they will be dealt with under the Acts he referred to in his contribution and only later on will an LME be sought? Will he clarify that when he responds and also how it is all going to work?

A trigger offence is committed and action is taken, as the noble Lord outlined in his amendments. Then requirements are sought from individuals and that can be a prohibition, a restriction or a requirement for further action that will reduce the risk of the person not complying up to a maximum duration of two years. He said that this could be reduced on application by the enforcing authority. My concern is that the Government do not always have a particularly good record in ensuring that all these present requirements are enforced to the full extent. If you look at the enforcement activity for breaches of the national minimum wage, I would suggest it was not a record to be particularly proud of. Will these additional burdens make enforcement easier and more effective or not? It would be useful if the noble Lord could respond to that point as well.

My noble friend Lord Rosser made reference in a previous debate to the question of how, with increased work and cuts in resources, we can ensure that these increased powers will be properly resourced. The worry is that there will be so much stuff here that we will actually end up with poor enforcement, not better enforcement.

--- Later in debate ---

[Lord Ashton of Hyde]

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Kennedy of Southwark]

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

[Lord Ashton of Hyde]

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

--- Later in debate ---

Moved by

[Lord Kennedy of Southwark]

72A: Clause 10, page 7, line 31, at end insert—
“( ) Regulations under subsection (2) which make provision about Scotland may only be made with the prior consent of the Scottish Parliament, and regulations which make provision about Northern Ireland may only be made with the prior consent of the Northern Ireland Assembly.”

[Lord Kennedy of Southwark]

My Lords, this amendment and the two other amendments in both my name and that of my noble friend Lord Rosser are very straightforward and come to your Lordships’ House following the concerns raised by the report of the Constitution Committee published on 11 January. The amendments require the consent of the relevant devolved institution before regulations can be made covering their nation. The clauses that these amendments seek to amend presently allow the Secretary of State to by regulation make provisions in the other nations that would have similar effect to the provisions enforced in England—English provisions.

The Government take the view that the clause does not engage the conventions so the legislative consent Motions are not required. This has been disputed by many interested parties including the Law Society of Scotland, for example. It would be helpful for the House if the noble Lord, Lord Bates, in responding could set out carefully the reasoning behind the Government’s decision not to seek approval via the legislative consent Motion process. I am also grateful to the Constitution Committee for highlighting the differential legislative approaches adopted in respect of England and other parts of the United Kingdom and the difference in the degree of scrutiny that that implies. I for one am not convinced that this is a good way to handle these important matters. Again, I would be grateful if the noble Lord, Lord Bates, could outline why he thinks this is appropriate. I beg to move.

[Lord Bates]

I am grateful to the noble Lord, Lord Kennedy, for moving the amendment and giving me an opportunity to say more on the record. I also pay tribute to the work of the Constitution Committee. I know that a number of recommendations in the report will have further bearing on our discussions in Committee. However, immigration is a reserved matter and the subject matter of all these amendments relates to parts of the Bill that remain within the immigration reservation which have not been devolved or transferred to a devolved legislature.

Amendment 72A relates to the measures to prevent illegal working on licensed premises. The Bill integrates protection against illegal working into the existing licensing regime, including by adding the Home Secretary to the list of responsible authorities for the purpose of the Licensing Act, by making the prevention of illegal working an objective of the licensing regime, and by requiring licence applicants to have the requisite right to work. The noble Lord, Lord Kennedy, raised the questions posed by the Constitution Committee on whether legislative consent Motions will be required. The legislation has a reserved purpose. It is necessary to amend devolved licensing laws in consequence of that reserved purpose. Legislative consent from devolved legislatures is not required.

We have consulted the devolved Administrations as the provisions have been developed. Alcohol and late-night refreshment licensing legislation in Scotland and Northern Ireland is complex and, in the case of Scotland, that legislation itself is subject to prospective amendment by the Scottish Parliament. We have therefore been working with the Scottish and Northern Irish Governments on the provisions to ensure that they can operate effectively within their licensing regimes. This work is ongoing and will continue in order to make equivalent provisions in regulations, using the order-making powers in the Bill once it has come into force.

Amendment 157A relates to the provisions in the Bill about residential tenancies. These provisions restrict the access of illegal migrants to private residential accommodation in the UK and concern the reserved area of immigration control. This is not an area in which Wales, Scotland or Northern Ireland have the competence to legislate and their consent is not required for the UK Government to legislate in this area. It is therefore inappropriate for the application of the residential tenancy provisions in the Bill to the rest of the UK to be subject to the consent of Wales, Scotland and Northern Ireland. It could lead to separate immigration controls applying in different parts of the United Kingdom, which would be to no one’s advantage, and to illegal migrants moving to jurisdictions which are perceived to be more lax.

Amendment 236A relates to provisions in Part 5 which will make it easier to transfer unaccompanied migrant and asylum-seeking children from one local authority to another and enable the Secretary of State to require local authorities to co-operate in the transfer of unaccompanied migrant children from one local authority to another, should voluntary arrangements fail. Immigration is a reserved matter, and immigration legislation already provides a UK-wide framework for migrants’ access to local authority services. The dispersal of migrant children is not an area in which Wales, Scotland or Northern Ireland have the competence to legislate and their consent is therefore not required for the UK Government to legislate in this area. The Government have been clear that they hope that the arrangements will remain voluntary and have been liaising with the devolved Administrations to see how this might extend to Wales, Scotland and Northern Ireland, but we must avoid the repetition of the situation we saw in Kent in the summer, so we will enforce dispersal if necessary to promote and safeguard the welfare of children. The regulations in Clause 43 are subject to the affirmative resolution procedure, so they will be scrutinised by Parliament before they come into law.

I will write to the Constitution Committee shortly to respond to its helpful report in more detail. Further, the Government propose to publish the text of the licensing regulations to extend the measure to Scotland and Northern Ireland before Report. We are unable to produce regulations immediately on residential tenancies because we are working out how this will interplay with the Private Housing (Tenancies) (Scotland) Bill currently making its way through the Scottish Parliament. On the final measure in respect of children, discussions continue with the devolved Administrations.

I hope that in the light of these reassurances and the commitments I have made this evening the noble Lord will feel able to withdraw his amendment at this stage.

[Lord Kennedy of Southwark]

My Lords, I thank the Minister for his helpful response. At this stage, I am very happy to withdraw my amendment. I will look at the record when it is published and reflect on it. I beg leave to withdraw the amendment.

Amendment 72A withdrawn.

Cities and Local Government Devolution Bill [HL]

Lord Kennedy of Southwark Excerpts

Tuesday 12th January 2016 Lords Chamber

Finally, Amendments 78 and 79 enable functions to be discharged jointly, as well as concurrently, with economic prosperity boards.

[Lord Kennedy of Southwark (Lab)]

My Lords, I will contain my remarks largely to the amendments of my noble friend Lord Beecham. Regarding some of the amendments that the Minister has mentioned, it is fair to say that we welcome the fact that the Commons has accepted the points raised here by noble Lords, but we regret that some have not been agreed. I notice that the Minister said that it is up to local areas to agree whether they want to have mayors. That is correct but, standing here now, I think of the situation that Bristol finds itself in. It is uniquely, except for London, unable to decide that it does not want to have a mayor any more. We have discussed that issue before and it is regrettable.

I also find it hard to accept that a Government who talk about devolution and localism should then seek to impose structures, not allowing an authority to decide its own best form of governance. Is that really the right way forward? One of the problems with the Government’s handling of these matters is in not always allowing a local authority to decide the proper mechanism for its area.

My noble friend Lord Beecham has tabled a number of amendments relating to Commons Amendment 31, which was put into the Bill very late in the day during consideration on Report in the other place. It is fair to say that this provision took local government by surprise. Considerable concern has been expressed about the aim to give districts and counties the right to request a governance change without regard to the other authority. It surely must be that seeking agreement by working in collaboration is the best way forward. I note what the Minister said about trying to get consensus but that is why my noble friend Lord Beecham has tabled his amendments. They are about ensuring that we get consensus on these things.

It would be helpful if the noble Baroness, Lady Williams of Trafford, could explain further how the government amendments came about. I know that she made reference to Mr Clive Betts, and I am conscious that the amendment came from him, but we want to know a bit more about the discussions that took place, including those with local government. Government Amendment 31 leaves too much to chance, which is why my noble friend seeks to ensure a more collaborative process.

The Minister explained the situation but it is fair to say that her explanation, although clear, was quite complicated. If it is complicated for this House, what is it going to be like on the ground? It will be even more complicated. Transport is now delivered by one area and education by another. We then have directly elected mayors and PCCs, with the possibility of the fire and rescue service also being taken over. This seems to me a recipe not for good governance but for confusion and a lack of democratic accountability.

I know the east Midlands very well, as I worked there for about 15 years. Both Derbyshire and Nottinghamshire are very well-run authorities. It has not come from these councils or authorities to have this provision; it has clearly come from a bit further north in Sheffield. I see no desire among local residents there to have different arrangements. As your Lordships will know, both counties have a proud history. Derby and Nottingham left them and are now unitary authorities. They are both large rural areas with large towns. They have a proud mining history but are also a centre for new start-up businesses and for more established businesses such as—

[Lord Scriven (LD)]

Will the noble Lord give way? I am a former leader of Sheffield City Council and a resident of the city. Has the noble Lord spoken to the leaders of Chesterfield and Bassetlaw councils, where people may have a different view to the one he has just expressed?

[Lord Kennedy of Southwark]

I have not spoken to the leaders of Chesterfield or Bassetlaw councils but I have spoken to the leaders of Derbyshire County Council and Nottinghamshire County Council. It is an area I know quite well, but I accept we are not going to agree on all our points.

This is also an area of considerable natural beauty with a thriving tourism industry. I would be grateful if the noble Baroness could talk about the devolution deal for Nottinghamshire and Derbyshire. Discussions are taking place with those councils, but there are concerns. They are worried that any deal there will be potentially undermined by having further discussions about other councils leaving that area. This is not a good way of going forward.

[Lord Shipley (LD)]

My Lords, there are advantages and disadvantages when this House considers a Bill in advance of the House of Commons. The advantages are that we can take an early view of proposals and make suggestions for the other place to consider. Among the disadvantages is that we can be asked to consider a very large number of amendments from the Government at a very late stage. This afternoon, we have 87 government amendments, of which 59 are in this group alone. This adds to the complexity and means that we have to be very careful in agreeing to amendments, as we have not had fuller consideration of them in Committee.

That said, in many cases, the amendments proposed by the Government improve the Bill. They clarify and enable, and they promote localism. We will shortly, I hope, have a further discussion about Amendments 31A and 36A, but the Minister has moved that we agree with Amendments 1 to 18 at this stage, and I want to say one or two things about the overall content and context of the amendments under discussion. The promotion of localism has to be a partnership if it is to be successful, which I think is what the Minister has said. For that reason, the additional powers now being proposed for the Secretary of State need to be used very sparingly, and I hope we will hear from the Minister further confirmation as the afternoon progresses that this is indeed the Government’s intention. In that context, Amendments 31, 31A, 36 and 36A are extremely important, and I support the amendments which will be moved later this afternoon by the noble Lord, Lord Beecham.

We have also received the advice of the Delegated Powers and Regulatory Reform Committee, which published its comments on 22 December. That committee rightly pointed out that when we considered the Bill in the summer, the Government gave assurances that the powers of the Secretary of State over brokering bespoke deals would be constrained by the need for all councils in a given area to consent. That requirement no longer has to apply, at least until March 2019.

On these Benches we have always been strong advocates of localism and the further devolution of powers to local authorities or combinations of them. But partnership and consent matter if devolution is to work. For that reason, I hope that we will hear assurances from the Minister that the powers will be used very sparingly, that they will only be used in circumstances that promote effective localism and that the procedural guarantees sought by the noble Lord, Lord Beecham, will be followed so that local authorities are encouraged to work collaboratively together.

I have two further points. The Minister referred to the fact that there will be an annual report. I am very pleased about that in the context of all our debates in Committee and on Report. Although not all of the amendments proposed by your Lordships’ House were agreed in the other place, the annual report will give a focus for clarifying and sharing what has happened, what good practice has been promoted and which pilots have proved successful. It is very important that that does not stay in Whitehall with Ministers but is shared with the whole country. I hope that the Minister will be able to confirm that not only will that annual report be issued but this House will have the opportunity to debate it.

The second issue I want to draw attention to from the Minister’s opening speech is her use of the words strong governance. She said that an elected mayor model is a model for strong governance, so that the public know where responsibilities lie. I have expressed doubts about the single-leader model and the ability of a single person to do so many things—perhaps, to be the police and crime commissioner or to take on responsibility through the combined authority structure for fire and rescue. If NHS matters or responsibility for children’s services are to be devolved to a combined authority level, it seems difficult for one person to do so very much and remain democratically accountable. I can hear the Minister’s reply, which will be that those matters will then be devolved to other leaders within the combined authority. We have had these debates before in the summer. Of course, we do not have elected mayors yet in most places and will not for the next two or three years, but it will be very important to review how they are performing as part of the annual report.

I have two concerns about this in a democratic sense. One is that councillors of constituent authorities will know less and less about what is actually happening in their areas because more and more decisions will effectively be centralised. Secondly, the general public may not understand who will be responsible for a decision and where it should be challenged if they do not agree with it. Reviewing that constantly seems very important.

That is all I want to say at this stage. I may say a bit more when the noble Lord, Lord Beecham, moves his amendments to Amendments 31 and 36 but, for the moment, I think that there is a different mood in England now about devolution. There are problems and, in some places, occasional conflicts, but, in the main, there is a willingness to accept devolved powers from Whitehall and Westminster—indeed, a very strong desire to do so. The moves of the previous Government and this one have demonstrated that the appetite is there for those devolved powers to be granted.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I expect a very quick timescale, given that some devolution deals have already been done. Time would be of the essence in getting these matters through, so I would expect the consultation process and the regulations to be dealt with fairly quickly. That is imperative, given that devolution deals have been done with different places. I hope that that is good enough for him.

The noble Lord also asked me about Amendment 34. The regulations will be subject to the affirmative resolution procedure and the amendment makes clear exactly what procedures can be fast-tracked. These include changes to electoral arrangements but the Boundary Commission’s responsibilities remain unchanged. I think we went through that yesterday but I am very happy to confirm that, as it is a very important point.

The noble Lord also asked me whether the Government are trying to reorganise local government. The answer is no. We are here to assist where local government wants to reorganise itself in terms of unitarisation. He also asked whether we are taking a Henry Ford approach. I hope that Cornwall shows that we are not. It will be up to local authorities to come forward with their proposals for their areas in due course.

I have been passed a note which says that—if I can read the writing—regarding business rates, “future legislation” means primary legislation, which we will bring forward as parliamentary time allows. I hope that I have satisfied noble Lords in all the questions that they have raised.

[Lord Kennedy of Southwark]

Perhaps the noble Baroness could say a bit more. Regarding my noble friend’s Amendment 31C, I agree that we should move forward on a basis of consensus. I also agree that no council should have a veto. I accept that entirely, as it would just stop things happening. However, that is why my noble friend’s amendment says that either council may make a referral to the Secretary of State. His intention is to avoid that happening; equally, his intention is to get consensus where we can. Can she say why she will not accept that amendment?

--- Later in debate ---

[Lord Tyler]

My Lords, I want to speak briefly—

[Lord Kennedy of Southwark]

My Lords—

[Lord Tyler]

I think that my friend here, the noble Lord, Lord Kennedy, would like to follow me. He might like to react to what I have to say.

This afternoon the Minister, and indeed others, seem to be again saying, “Yes, one day this will happen but not now”. That is a position which I understand—it is a perfectly reasonable position—but it cannot be repeated and repeated without the Government coming forward and saying when and how. On 18 November, I thought that the noble Lord, Lord Faulks, put it very succinctly when he said:

“There may come a time for change, when we lower the age to 16. There may be a debate to be had. This is not the moment for that debate”.—[Official Report, 18/11/15; col. 179.]

When is it going to be the time for that debate? This is the doctrine of unripe time, which I think I am right in saying that Sir Humphrey was always quoting to Jim Hacker in “Yes Minister”. Whenever they wanted to avoid taking a decision they would say, “We’ll get to it one day. Yes, of course it’ll be important”. But it is not going to be sufficient simply to put this off for ever.

The Prime Minister himself has said, as we understand it, to the leader of the Conservatives in the Holyrood Parliament that, yes, there will be an opportunity for the full debate which I think the noble Earl, Lord Listowel, and I will both want to contribute to. When are we going to have that debate? We cannot go on for ever leaving this on the side, as if it somehow does not matter that one part of the United Kingdom adjoining another has a completely different franchise, as my noble friend Lord Purvis said. If this is the United Kingdom, the franchise should be consistent across the United Kingdom.

There is also an important issue here about the way in which we discuss these issues in this House. The noble Lord, Lord Cormack, seems to think that it is inappropriate for this House to have any views whatever about elections. I dispute that. During my whole period in this House, we have been able to improve the law in relation to elections in a more dispassionate way than when I was a Member of the other place. It has a special interest in the electoral arrangements, in the Representation of the People Acts and so on. This House has a proper responsibility, a disinterest, which is extremely relevant to important questions about the franchise and the way in which our democracy works. If we give that up it will be an important loss of responsibility and role for this House, and I hope that we will not go down that track. In response, I trust that the Minister will be able to tell us, as the Prime Minister has hinted to his colleagues in the Holyrood Parliament, that there will be an opportunity for the wider debate that Ministers keep telling us is timely and should be happening. If she cannot tell us that, then we are right to make progress in this Bill and move in this direction.

[Lord Kennedy of Southwark]

My Lords, while I have every sympathy with the amendment proposed by the noble Lord, Lord Shipley, and with the comments of the noble Lord, Lord Tyler, I should say right at the outset that if the amendment is pressed to a vote, noble Lords on these Benches will abstain.

My party fought the general election last year on a commitment to bring forward legislation to enable 16 and 17 year-olds to vote. We have, on numerous occasions, had debates, asked questions, moved Motions and won votes to advance the cause, but it has fallen on deaf ears on the government Benches. They have shown not the slightest interest in considering this change and I have come to the conclusion that it will probably take a Government of a different political persuasion to bring it about.

Not even the enthusiastic support of Ruth Davidson MSP, the leader of the Tory party in Scotland, or of the noble Baroness, Lady Goldie, the former leader, has made any difference at all to the government Benches. We will continue to press the case at the appropriate time—the worst thing that the Government have done of course is to deny 16 and 17 year-olds a vote in the referendum on the European Union. The Government and the House of Commons have rejected this proposal repeatedly.

We are a revising Chamber. The elected Commons has made a decision, as the noble Lord, Lord Cormack, said, and I do not intend to challenge it further on this occasion. In taking this decision, I am also mindful of the advice from the Electoral Commission about making decisions in a timely manner and the extra work that would be involved in the short space of time before the elections.

[Lord Purvis of Tweed]

Before the noble Lord sits on his hands, is his position on this for the Official Opposition purely tactical? Is it their principled position that 16 and 17 year-olds should have the opportunity to elect local government representatives whenever this Parliament—both Houses, including this House—has an opportunity to give it to them, or is it purely tactical given the weakness of the Official Opposition?

[Lord Kennedy of Southwark]

We have repeatedly supported the idea of votes for 16 and 17 year-olds. I think noble Lords will find that the position of the noble Lord today is a tactical one.

[Lord Beecham]

When it comes to sitting on their hands, few better exponents of that philosophy could be found than those on the Liberal Democrat Benches. They sat on their hands and colluded with the enormous damage inflicted on local government and elsewhere for five years. They are not in any position to lecture us about anything around consistency. Furthermore, it is quite clear that the Government’s unfortunate position on this has been confirmed on three or four occasions in votes at the other end. We are not in a position to change that. Noble Lords on the Liberal Democrat Benches know that it will not change. This is gesture politics of a typical kind and we ought to have nothing whatever to do with it. When we get a change of Government, we will see a change in the voting age, not only for local authority elections but for parliamentary elections, European elections and any future referendums.