Asylum Seekers: Employment

Lord Kirkhope of Harrogate Excerpts

Monday 7th October 2019 Lords Chamber

[Baroness Williams of Trafford]

I do not have disaggregated figures on what types of skills people claiming asylum possess, but I agree with the noble Baroness that anyone settling in this country should have English language proficiency. It is the best route to economic empowerment.

[Lord Kirkhope of Harrogate (Con)]

My Lords, is it not important for us to differentiate between the sanctuary that we have been proud to offer over a long time—we are one of the leading countries in that sense—for those who are in terrible danger and comply with the 1951 United Nations convention criteria for granting asylum, from those who come to this country under ordinary Immigration Rules and meet those rules to benefit economically? Surely the two things should not be mixed.

[Baroness Williams of Trafford]

I could not agree more with my noble friend, and that is what I tried to say to the noble Lord, Lord Roberts. These are two different things and should not be conflated.

Brexit: Proposed UK–EU Security Treaty (European Union Committee Report)

Lord Kirkhope of Harrogate Excerpts

Wednesday 16th January 2019 Lords Chamber

[Lord Kirkhope of Harrogate (Con)]

My Lords, I am delighted to be able to follow our committee chairman, the noble Lord, Lord Jay, and to support his remarks about the recent report on the prospects, post Brexit, for our continued security co-operation with our EU friends. I do not dispute for a moment that the Government and our many police and intelligence agencies accept and desire the need for an ongoing close relationship, but intentions are not enough: to maintain a seamless and effective co-operation we need to have some basic structures and agreements in place, and that is where I have serious doubts as things stand today.

When I was serving for 17 years as an MEP in Brussels, I was engaged as a spokesman for justice and home affairs issues for a large portion of that time, being responsible, with others, for numerous measures enhancing the pan-European close workings of intelligence and police forces to the detriment of major criminals and would-be terrorists. This included those measures referred to by our chairman: the European Criminal Records Information System, SIS II—the Schengen Information System—the European arrest warrant, the money-laundering directive, the data protection regulation and, just before I came back to the UK, the passenger name record agreement, of which I was in charge in the EU and which, incidentally, took eight years of negotiation to conclude.

These vital tools have the power to protect our safety and have indeed been doing so, but they are totally dependent on common standards, equal redress, agreed levels of openness and transparency and, of course, real-time exchange of information. I am sure that noble Lords are aware that millions of exchanges of vital data take place every day between authorities and agencies, with the protections in place ultimately interpreted by the European Court of Justice. The current government red line that rules out that body as an ultimate arbiter of common standards means inevitably that, if we maintain that position in any future arrangements, we will necessarily lose the benefits, especially of immediacy or that real-time information exchange, as well as the confidence of our neighbours in Europe.

We cannot compartmentalise these issues either. Unless we subscribe to the control mechanisms for data exchange, we lose access to all those areas I have referred to as well as access to the co-operation agreements with Europol and indeed other elements of cross-border structures. Of course we can strive to obtain bilateral agreements, which certainly might be easier than multilateral ones, but the other 27 states are obliged by treaty and law not to treat a third country equally, unless it accepts their controls, and that is not apparently acceptable at the moment to Her Majesty’s Government.

There are many issues on which those of us who have great experience of Europe would prefer the status quo to the plans currently pursued by the Government. Trade, the environment and transport are indeed also very important issues but—for me, and I have reason to say so—the most important by far is our security. I have said before in this House that even one minute of any form of gap or vacuum in our arrangements to exchange data relating to those who could do us harm would be—not could be—completely disastrous. At all costs and in all circumstances this must be avoided.

United Nations Relief and Works Agency

Lord Kirkhope of Harrogate Excerpts

Monday 19th November 2018 Lords Chamber

[Lord Bates]

We need to acknowledge that the US felt that it bore a disproportionate share of the funding in providing one-third of it; it wanted to see that broadened out. Something good that we have been involved and instrumental in was a meeting in the margins of the UN General Assembly, where we sought to assemble people and work with colleagues across different groups in which we are influential to raise additional funding. That meeting raised an additional $122 million; that was not sufficient to remove the shortfall because $64 million still remains, As well as voicing criticism and concern, some of those around the world who expressed concern need to dip into their pockets.

[Lord Kirkhope of Harrogate (Con)]

My Lords, does my noble friend agree that there is deep concern about the way in which some of the facilities provided by UNRWA in the Gaza Strip are abused by Hamas? It uses schools and other facilities to disguise the storage of weapons and builds tunnels underneath those facilities, apparently without any kind of recrimination. Does he not think that this is inappropriate and puts in peril UNRWA’s work in the community?

[Lord Bates]

We and UNRWA take all those concerns extremely seriously. When issues such as the content of school textbooks have been raised, they have been thoroughly investigated. When the principles of non-violence that the Palestinian Authority signed up to are questioned, that ought to be raised with UNRWA. Ultimately, the only way forward in the long term is for all parties to come together and begin a peace process that can resolve the refugee situation and territorial claims.

Electronic Money, Payment Services and Payment Systems (Amendment and Transitional Provisions) (EU Exit) Regulations 2018

Lord Kirkhope of Harrogate Excerpts

Tuesday 6th November 2018 Lords Chamber

In summary, the Government believe that these SIs are necessary both to ensure that the regulatory regime applying to payment institutions, electronic money institutions and account information service providers works effectively if the UK leaves the EU without a deal or an implementation period, and to maximise the prospects of the UK maintaining participation in SEPA, to the benefit of UK consumers, businesses and the wider UK economy. I hope noble Lords will join me in supporting both these draft regulations, and I commend them to the House. I beg to move.

[Lord Kirkhope of Harrogate (Con)]

My Lords, that all sounds terribly straightforward. I shall just make a short comment and ask my noble friend one or two questions. In the European Parliament I was involved in matters such as the SWIFT banking arrangements for fast transfer of funds, particularly across the Atlantic with our United States friends, so I have a little background in this. As my noble friend correctly said, the single euro payments area covers 34 entities at present: the EU members; the other EEA members; Monaco and San Marino, which he mentioned; and Andorra, which, unless I am mistaken, he did not. Within that area, those countries have a combination of institutional and commercial arrangements. Looking at the effects on providers, or those involved in transfers, my noble friend mentioned negotiations taking place without the institutional arrangements of being members of the EU or another European institutional situation, such as the EEA. Is it possible to have an arrangement to remain part of the single euro payments area even if we are not members of any of those European institutions?

On the temporary permissions regime that my noble friend talked about, again, I question this. A lot of the SIs we are now looking at with regard to the withdrawal agreement seem to refer to temporary provisions. However, here in the Explanatory Memorandum we are talking about the cut-off date for this set of provisions. Is that extendable? Perhaps my noble friend could clarify.

In addition, part 2 statements, which are always attached, as my noble friend knows, never really illuminate one at all. The part 2 statement attached to this first SI includes an appropriateness statement; the Minister clearly states that it is appropriate and, when asked to give good reasons, answers by saying, “I think it’s reasonable”. We never get any fuller justification at all. Is my noble friend of the opinion that part 2 statements are integral sufficiently within the SI to be justiciable? Is it in fact possible for these to be challenged in courts as either inadequate or in themselves questionable?

My noble friend mentioned a general point about all scenarios. In paragraph 7.3 of the Explanatory Memorandum, “all scenarios” are referred to. Are all the scenarios the ones he has set out today, or are there further scenarios that could occur in the event of our not reaching a satisfactory conclusion with the European Union?

Finally, paragraph 7.4 of the Explanatory Memorandum refers to a sunset clause and mentions consequences. Can my noble friend elaborate slightly for us on what those likely consequences could be in relation to the sunset clause itself? It says that the power,

“falls away two years after exit day”,

but that does not take us much further along the road, particularly through a transition period, which we anticipate for financial matters.

--- Later in debate ---

[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister for introducing these SIs. They are two of the 70 that we have to deal with and it is a rare privilege to do so in such a crowded Chamber. Normally, the noble Lord, Lord Bates, and I are allowed the privacy of the Moses Room along with one representative from the Liberal Democrats and no others. During debate on an earlier SI, I talked about the value of these meetings, because at the end of the day the Minister knows, as do I, that we will not oppose these statutory instruments. However, I made the point that they create a record that might help the people who use the regulations to understand them. However, so far this SI presents the biggest challenge when it comes to understanding, and my further comments might reveal that I have totally failed to understand it. I look forward to the tutorial in the Minister’s response.

My understanding is that the sorts of things we are talking about are BACS, CHAPS, LINK, the NICC, Mastercard and Visa Europe. I understand that these are regulated in the United Kingdom by the Payment Systems Regulator, which works to a set of standards, directives or frameworks that are the UK manifestation of EU directives and so on. Therefore, my first question is: who will set the standards after exit day? I think that the Minister said that it would be the FCA, but does that mean that effectively, wherever there is a reference to the EU, this SI takes it out and puts in the FCA?

Then we have the complication of who sets the standards for EU firms trading in the UK. Once again, I assume that that is a passporting issue that will die on exit day if we have no alternative agreement. Therefore, what does the instrument do for EU firms after exit day? The Minister says there is a temporary regime, but could he perhaps expand a little on what it does? As I understand it, the temporary regime is time-limited, so what happens at the end of the temporary period? I did not get the sense—as the noble Baroness, Lady Kramer, did—that it was extendable.

Turning now to SEPA, it seems that the Government’s aspiration is to retain membership of it, even if there is no deal, but this is slightly different from the pure no-deal situation, in the sense that it will require international agreements between the UK and other SEPA members. Could the Minister expand a little on how the SI facilitates such agreement? More importantly, could he explain the consequence of no agreement? It is, presumably, theoretically possible that we will not be able to achieve a third-country—or whatever the right term is—membership of SEPA. What will that mean, in practical terms, to UK citizens in their day-to-day lives and their desire to use various means of transport in EU countries?

I turn now to what I loosely call the big picture. If we get a Brexit deal, as I understand it, we do not need these SIs. They are essentially no-deal SIs, but I cannot see in them how they are revoked. Are there articles deep in these pages that allow the SIs to be revoked? The commencement paragraph actually specifies the time when they become active. I will now make my standard moan on these occasions: that there is no impact assessment. The value of impact assessments, quite apart from the actual numbers, is that they usually speak in fairly plain language about who is affected and the level of impact on those institutions. Can we try to ensure that the promised impact assessments for these SIs are available before we debate the instruments themselves?

Because I could not understand the SI in any depth, I worry if it really is just about translating three or four simple ideas into fact. I notice that it is 24 pages long. It strikes me that it is like a bit of computer software, with lots of lines. As we all know from our experience with Microsoft, every now and then it does not get it right. What systems do the Government have to assure themselves that these SIs actually work? While they seek to introduce a number of relatively straightforward ideas—I hope they are; I hope not to be told that I have none of it right—they take an awful lot of articles to do that. Is there a checking mechanism to make sure they work? They are going to have to work at a moment in time. If they do not, the chaos could be frightful.

I repeat my request, to which I have not yet had an answer from the last set of SIs, that those of us involved—I am sure my Liberal colleagues would agree—have a fully updated and amended copy of the Financial Service and Markets Act 2000. We are often told to go to commercial copies of these things. There is a commercial organisation—called Westlaw, I think—and I looked up the Financial Services and Markets Act in its system. Because it records every change since the year 2000, the document is 1,569 pages long. I put it to the Minister that that is not user friendly.

Finally, I echo the welcome for this SI from the noble Baroness, Lady Kramer—

[Lord Kirkhope of Harrogate]

I am sorry to intervene, but the noble Lord is making a point about an impact assessment. If he looks at page 27, he will see that there is a specific reference to an impact assessment. However, I will say that, when I tried to find it on the appropriate website this morning, it was not there.

[Lord Tunnicliffe]

I thank the noble Lord for that.

The Minister knows exactly what I am going to say. On page 6 of the Explanatory Memorandum, paragraph 12.6 and beyond states:

“An Impact Assessment will be published in due course on the legislation.gov.uk website … The Treasury’s decision to publish the regulations without a final Impact Assessment aims to ensure that industry and regulators have as much time as possible to familiarise themselves with the regulatory changes”.


The reason the Minister and I are familiar with those two paragraphs is that they have appeared in every Explanatory Memorandum on Treasury SIs so far; and on every SI so far, the Treasury has failed to produce an impact assessment, despite the fact that it is promised in the body of the document. For the life of me, I cannot see why it would bother, given that we will have approved the SI by the time it arrives.

Let me turn back to the good news for the Minister. We are certainly not going to challenge this SI. I echo the view of the noble Baroness, Lady Kramer: it is good to see, as far as one can because of the sheer complexity of it, that it sticks with the Government’s commitment to make only the necessary changes to have a smooth transition. I cannot detect any effort from the Government in this SI to try to introduce any policy changes.

Central Counterparties (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2018

Lord Kirkhope of Harrogate Excerpts

Tuesday 30th October 2018 Grand Committee

These SIs are an important part of the work to provide a functioning financial services regime in the event of a no-deal scenario. It is important to stress that if, as expected, we enter an implementation period when we leave in March 2019, the access to each other’s markets would remain the same during that period: passporting will remain in place and non-UK central counterparties that meet the current requirements will continue to be able to provide services to UK banks. However, these SIs should provide reassurance to Parliament and, more importantly perhaps, to the UK financial services sector as a whole that the UK is prepared for all possible outcomes. The City’s success is based on being the most open and dynamic financial centre in the world. Ensuring that EEA financial services firms and non-UK central counterparties can continue to operate here after exit day will help to maintain this status, protect jobs and preserve tax revenues to fund our vital public services, while also preserving an efficient and resilient financial system. I hope noble Lords will join me in supporting these regulations and I commend them to the Committee.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I would like to intervene briefly to ask my noble friend a couple of questions. Although we all hope for a deal scenario, not a no-deal scenario, nevertheless the practical approach to these matters should perhaps be thought through a little more. My first point is a procedural one relating to the statutory instrument—I refer particularly to the EEA passport rights matter. I spent some years—not many, thank goodness—as a member of the Select Committee on Statutory Instruments in the House of Commons, which was chaired by the late Bob Cryer. He was scrupulous about determining the nature of approaches towards statutory instruments.

I am concerned that we have, effectively, a hybrid—an affirmative resolution, but nevertheless with the prospect of a negative procedure in the event of any extension of time, for registration of the various bodies that may need registration in due course. I find that rather concerning. I would like my noble friend to confirm that we are not getting dangerously close to a ban on negative approaches. Clearly that could happen when the affirmative approach is required but where there is a fee involved for a function which a UK public authority would exercise.

I believe the registration itself must by implication—although it is not revealed in this document—carry with it some financial implications; some fees will have to be paid, although they are not referred to here. If that is the case, would it not be more appropriate for affirmative resolution to be carried through to those extensions as well as to the rest of the item? That is my first point.

My second point is that while the FCA seems capable of handling quite large numbers of registrations for companies under EEA processes, the Prudential Regulation Authority does not. That is a deep concern. So far, the PRA seems able to manage only 10 or 12 applications per year. It has already indicated that it expects that there will be between 100 and 200 applications in the event of a no-deal scenario under these proposals. How does my noble friend believe this can be dealt with, without some form of massive increase in resources or powers, particularly in the hands of the PRA? I would be grateful if he would allow that.

I come to my third and final point. He has talked about the extension of the extension, which requires six months’ notice from either the PRA or the FCA as to the needs arising. To my mind, that is an almost indefinite process; we would see these extensions going on ad infinitum, or certainly for a considerable time. Surely that must be a disadvantage to the entities applying for registration and, indeed, to the position of this country in relation to the financial services in which it is at present so pre-eminent. Can he assist with that? I am grateful to him for his introduction.

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I thank the Minister for his introduction and I concur with him that these are necessary instruments. I declare my interests as in the register and, in particular, as a director of the London Stock Exchange.

Starting with the EEA passport rights regulations, I fully understand the need for temporary or deemed permissions and some flexibility, but in the longer term there are risk and competitiveness issues to consider, so I shall explore further the time periods and how the policy surrounding them might operate. There are two time periods: two years from exit before a formal application for authorisation has to be made, and three years from exit, extendable, within which the relevant regulator makes a determination. Supervisors can require a formal application to be made before the two-year period is up, and presumably that could be exercised for a variety of reasons, such as phasing in for size or complexity of entity or for other risk-based reasons. As the Minister has already mentioned, the two-year period is also potentially useful to EEA firms trying to decide what to do, getting used to UK supervision and having time to organise themselves before having to seek authorisation. It can also be that the two years is simply a waiting room until the regulators have the capacity to carry out the authorisation determinations. How is it envisaged that the two-year period will operate? What is the policy? Is it a phasing mechanism? Will the regulators be controlling that phasing? Is it wholly in the hands of the firms that want their passports replaced? Is it expected that everyone will have two years and then there will be a sudden rush of applications; or, as I asked before, will there be some kind of risk-based assessment about which applications must be brought forward in time?

I now turn to supervision, because the entities in the temporary regime will come under supervision. Can the Minister assure us about the regulator’s capacity to supervise and that significant supervision will take place? If it is envisaged that there may be an unmanageable, or at least long, queue for authorisations because of capacity issues, what is the capacity situation with supervision?

Does two years really mean a fixed two years that cannot be extended? I cannot find anything to say that it could be, and there is nothing in the Explanatory Memorandum. But just in case I might have missed something, will the Minister clarify whether the construct of the regulation stating that “Section 55U” of FiSMA “has effect as if” is a good way of keeping the two years unamendable by any power to make changes that might be embedded in FiSMA or anywhere else? I am still learning the tricks of some of the parliamentary drafting that goes on here, and that is quite a good one to remember.

As to the three-year limit allowed for determination of applications, it can be extended, as has already been said. How necessary that is might in part be determined by the policy over the preceding two years. Is extension available only if the regulators do not have the capacity to conclude within three years? I think that is what the Minister said. Has three years been set assuming a rush of applications at the two-year stage, or will an extension be inevitable if that two-year rush happens?

As the noble Lord, Lord Kirkhope, said, it would clearly not be appropriate for the extension to be used on a rolling basis to allow businesses that might not measure up to full UK authorisation standards to continue to operate in a temporary regime because there had been no determination of their application. That is one of the reasons why I share the view expressed by the Secondary Legislation Scrutiny Committee that there is a good case for an extension requiring the affirmative procedure. I do not agree with the reply from the Treasury Minister John Glen in the correspondence. It is not satisfactory to say that some affirmative permission somehow flows from this SI so that the negative procedure is enough at the time of the extension. That might have been the case if the policy on these time periods had been more clearly elaborated, but it was not. In fact, it seems to be in the hands of the regulators, and if that is the case, then I cannot see how avoiding affirmative procedure is the right way to go. If the Government had set the policy and embedded it in here, that would be different, but this does not include the policy on how it is going to be used.

Counter-Terrorism and Border Security Bill

Lord Kirkhope of Harrogate Excerpts

2nd reading (Hansard - continued): House of Lords & 2nd reading (Minutes of Proceedings - continued): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Lord Kirkhope of Harrogate (Con)]

My Lords, in the same way that my noble friend Lady Barran indicated that she would be a form of warm-up act for the noble Lord, Lord Anderson, I suppose I serve the function of offering an anticlimactic effect following his excellent speech. I too congratulate my noble friend Lord Tyrie and my noble and learned friend Lord Garnier on their excellent maiden speeches. They are old friends in many ways and they are still operating as effectively as they ever did at the other end of the Corridor. They are very welcome indeed. I declare an interest in this debate as a lawyer, a former spokesman for justice and home affairs for many years in the European Parliament and a former Home Office Minister here responsible for, among other things, immigration and control of our borders.

I make it clear that I agree that terrorism, without doubt, is an evil that must be met with determination by democracies and by all those who value freedom. It is a matter of the greatest priority that that should be the case. But when I look at the nature of the legislation—indeed, I was interested to hear remarks by the noble Baroness, Lady Manningham-Buller, about the number of pieces of legislation; that was referred to by others, including by the noble Lord, Lord Anderson, a moment ago—it is interesting to note that we are by no means a country without a continuing concern and interest in legislation to keep us up-to-date with the challenges we meet. As far as I am concerned, it is vital that we keep abreast and catch up, if you like, with the changes in the approach of terrorists and major criminals. Andrew Parker, the director-general of MI5, said about a year ago that the ongoing threat was,

“multidimensional, evolving rapidly, and operating at a scale and pace we have not seen”.

It is quite clear from that that the terrorist seems always to have an advantage over democracy, justice and the way in which we operate our laws.

Our response in recent times has of course been to have independent reviews under the control and leadership of the noble Lord, Lord Anderson, and, until recently, Max Hill QC. While those reviews are very valuable as an ongoing consideration, it is still difficult to keep our legislative programme up to date. That rapid evolution has to be met. I have always thought that we need to review how we legislate to keep up to date. I had previously described the need for what I call “smart legislation”, where either the law itself is required to be examined at a set point and that is written into the legislation, or we have a more flexible system where we can make changes not to the principles that we have already agreed but to some of the practical elements that run alongside them.

When the French state of emergency ended last November following the Paris attacks, President Macron introduced new counterterror laws that some might say were more draconian than the provisions of the Bill before us—but at least they included very clear understandings that the law had to be not only continually monitored but revised or reviewed by Parliament within two years after that monitoring. That is an important element that we see very much in other countries. I saw it in my work in the European Parliament. Now written into almost all legislation are these necessary reviews or, in some cases, sunset clauses, depending on what sort of legislation it might be.

At the same time, President Macron looked carefully at the co-ordination between the domestic and the foreign intelligence agencies and the police forces in France, because one of the elements of difficulty after the Paris attacks—certainly in Belgium, where I was located—was that there were issues regarding co-ordination between the police services and the intelligence agencies. There was an element of confusion and concern that these were not properly co-ordinated and that there were competitive elements between them that were not in the interests of detecting and dealing with terrorism. That is something we always ought to consider.

In the same way, we ought to consider the issue of scrutiny. I know that to some people the word “scrutiny” is not particularly attractive. Sometimes it looks as though they cannot do what they think they must do because someone is always going to be looking over their shoulder. But if you want to get a balance between the security of the state and its citizens and the civil rights of those suspected of threatening it, you have to allow for scrutiny—not only scrutiny of an official nature, organised by government, but an understanding that we are now, inevitably, in this modern world, scrutinised constantly, whether we like it or not, by the media, by NGOs and by international partners and players. We need to be sure that whatever we do measures up to the sort of scrutiny and the balance I have referred to.

I will mention the need for something that has been referred to by several speakers: the criterion of necessity and proportionality has got to apply not only in terms of what we do about terrorism but in how we consider it. Noble Lords would be surprised if I did not mention international relations briefly. We have not really got anything here, because of course our legislation on terrorism is a national matter. However, it is necessary to refer again to the ongoing partnerships that have allowed us to deal with what is a worldwide phenomenon in an effective manner. In fact, there is plenty of evidence that we have been able to deter and detect terrorists on the basis of information we have received from our neighbours.

Of course, we have a trusted position, currently, with our EU neighbours, but also, through the Five Eyes arrangement with Australia, Canada, New Zealand and the United States, we have been able to obtain information and intelligence which has assisted us to protect our citizens. As one of the authors, or rapporteurs, involved in developments in the EU such as SIS II—the Schengen Information System that has been referred to—Prüm and PNR, passenger name records, I feel very strongly that whatever the Brexit process brings, it must ensure that there is no gap or uncertainty, even for one hour, in the ongoing full exchange of intelligence. That includes intelligence exchanges in real time, because the whole point of terrorism is that terrorists get away with it if we delay taking action and using information that we have. This is important—indeed, it is more than important, it is vital.

I dare not quote, perhaps, Sir Bill Cash, the Member of Parliament and chair of the House of Commons European Scrutiny Committee—not necessarily the greatest Europhile, I have to say—who said, when asking for clarity about the Government’s intentions in these measures:

“We can see no justification for this reticence. We expect the Government to be far more forthcoming about their intentions in relation to SIS II”—


and, I would add, all the other areas in which we have close co-operation with Europe.

My last area deals with legal issues. Very briefly, as a solicitor, as a lawyer, I have always believed in the right of an accused to have a lawyer to support them at the earliest possible opportunity. When we dealt with measures in a directive on access to lawyers in Europe, we made it clear that this access had to be without undue delay: I think it was quite clear what sort of thing that meant. I would like some reassurance on this because I think there is some confusion. It was referred to earlier. The confusion lies, of course, in our Schedule 3, where there is some contradiction. First, there is an issue regarding the privacy and confidentiality of lawyers with clients, where the presence of a “qualified officer” seems to be required even when a lawyer is present to take instructions. That is quite a serious matter. The Law Society and others are deeply concerned about it. Yet it is contradicted by Schedule 3(24)(2) which says, as has also been referred to:

“The examining officer may not question the detainee under paragraph 1 or 2 until the detainee has consulted a solicitor”.


So there is confusion—there is no certainty about this, and I think we need to clarify and make sure that the protection of the rights of the defendant are always in place.

Finally, on the issue of recklessness, I am a little curious. Other noble Lords here are far more distinguished lawyers than I am, and have been over many years—I concentrated on knowing Rylands v Fletcher and one or two other interesting cases—but it nevertheless seems to me rather odd that we have a new approach that makes recklessness in itself criminal in this context. In my understanding of what is required for a crime, there is mens rea, which is made up of intention or knowledge of wrongdoing. That is fairly clear, but it constitutes only part of the crime. The rest of it is action and conduct. Apart from strict liability, where no mens rea is required, I cannot find myself particularly sympathetic to the term “recklessness” as being conclusive in relation to somebody’s intention, and enough for criminal liability.

Having said all that, I support the Bill; I think it is important that we keep the legislation going. I would like to see it more mobile and more flexible. But, in the meantime, we rightly carry out our duties—the responsibilities we have to protect our citizens from crime and from terrorism at every opportunity.

Brexit: Europol

Lord Kirkhope of Harrogate Excerpts

Tuesday 11th September 2018 Lords Chamber

[Lord Kirkhope of Harrogate (Con)]

My Lords, I had the privilege some years ago of being the rapporteur in the European Parliament for joint investigation teams, which was supported very strongly by British staff who were key in Europol. Will my noble friend confirm that the importance of the 39 or 40 front-line staff of Europol will be taken into account in all our discussions, as will whether we will replicate our current operational agreements with third countries—17 in all—and whether we will continue to play a full part in the European Counter Terrorism Centre and European Cybercrime Centre organisations within Europol?

[Baroness Williams of Trafford]

The answer to that is yes—and, for Europol specifically, it means that the UK will keep its liaison bureau in The Hague and will have access to European systems and facilities on the same basis as it does now.

EU Settlement Scheme

Lord Kirkhope of Harrogate Excerpts

Thursday 21st June 2018 Lords Chamber

[Lord Paddick (LD)]

My Lords, I, too, thank the Minister for repeating the Statement. We welcome it if we take it at face value, but the noble Baroness will understand that we need to probe.

The Statement gives the impression that the Home Office will be bending over backwards to help UK-resident EU citizens to apply for and be granted settled status or pre-settled status. This appears to be completely at odds with the Home Office’s attitude towards the Windrush generation. Can EU citizens have confidence in this Statement in the light of the Windrush fiasco?

The Statement says that persistent offenders or those who pose a security threat will not be eligible. I appreciate that the noble Lord, Lord Rosser, has already asked what the threshold might be in respect of which criminals will be excluded, allowed in or allowed to remain, and she may be ready to answer that. In the other place, the Minister said that UK criminal record databases and watch-lists would be searched and that applicants would be asked about overseas convictions. Currently, ECRIS can be searched by the UK, but access to ECRIS looks as though it is in jeopardy. How confident is the Home Office that its systems will be robust enough to identity those with serious overseas convictions?

The Statement says that close family members living abroad will be able to join EU citizens resident in the UK. Can the Minister confirm how close a relative would have to be in order to be able to join an EU citizen who is resident here?

The Statement also says that negotiations are under way with non-EU EEA countries with a view to extending the scheme to their citizens. I think it mentions EEA countries and Switzerland. I should declare an interest in that I am married to a Norwegian and own property in Oslo. Can the Minister say any more on what progress is being made with regard to EEA countries and Switzerland?

Penultimately, will these arrangements be dependent on reciprocal arrangements being put in place for UK citizens resident in the EU and EEA countries, or will they be in place no matter what the response from those countries is?

This is a detailed and complex proposal, as the noble Lord, Lord Rosser, has indicated by the number of questions he has asked. Will the Minister agree to a debate to allow proper consideration of all the issues that we have raised today?

[Lord Kirkhope of Harrogate (Con)]

My Lords—

[Baroness Williams of Trafford]

I thank both noble Lords for their very detailed questions, which I was furiously trying to write down and answer as they asked them.

The noble Lord, Lord Rosser, spoke about uncertainty for EU citizens. What my right honourable friend announced today will, I hope, provide further clarity and therefore less uncertainty for EU citizens, and that is precisely what we want. I hope that EU citizens will feel that there is a clear and transparent process which makes it as easy as possible for them to obtain settled status. He asked about the White Paper. We are expecting to issue it in due course. He also asked about the estimated take-up of the scheme from EU citizens. I think that it would be sensible and logical to say that the expected take-up should relate quite closely to the number of EU citizens who are currently in the UK. We think that about 3.5 million will generally apply.

The noble Lord also asked about reciprocal arrangements. As I think noble Lords will recall, when we first started bringing forward these plans, noble Lords and Members of the other place were very keen that we should start the ball rolling in good faith, and I hope that in good faith the EU will act similarly for our citizens. He asked whether what we are doing is acceptable from an EU point of view. I can certainly say that, from the point of view of an EU citizen living in the UK, it is very acceptable. As to whether the arrangements will be acceptable to the EU, I should hope so, because we are giving their citizens the settled status that is required to live here.

I have completely mixed up all the questions, but I shall go through them as I come to them. The noble Lord, Lord Rosser, asked whether our plans will change in a no-deal scenario. It is fair to say that the Prime Minister has been very clear from the beginning of this process that she wants EU citizens and their families in the UK to be able to stay. She gave a personal commitment to EU citizens in October, when she said:

“I couldn’t be clearer: EU citizens living lawfully in the UK today will be able to stay”.


We are not anticipating failure and, as the Prime Minister set out in her Florence speech, we are confident that we can find a way forward that makes a success of this for all our people. We have a responsibility to make this change work smoothly and sensibly. We have reached an agreement with the EU guaranteeing the rights of EU citizens living in the UK and of UK nationals living in the EU, and we do not expect this to be reopened.

The noble Lord, Lord Rosser, asked about the criteria for status and who is eligible for the scheme. Any EU citizen and their family members residing in the UK before the end of the implementation period on 31 December 2020 will be able to apply for settled status under the EU settlement scheme. People considered to be resident in the UK will include those here before midnight on 31 December 2020 and will include those previously resident in the UK who are outside the UK on that date but who have maintained continuity of residence here.

A close family member, which includes a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent living overseas, will be able to join an EU citizen resident here after the end of the implementation period where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK. Children born or adopted after December 2020 will also be eligible for the scheme.

The noble Lord, Lord Rosser, asked how the Government came to the figures of £65 and £32.50. The current fee for a permanent residence document for EU citizens is £65, and we think that the lower fee for a child is appropriate at half the price. I must add that, for a child in care, there is no fee.

The noble Lord, Lord Paddick, asked whether this would be a repeat of Windrush. I hope that this is the complete opposite of Windrush. People will be able to establish their status, as opposed to what happened with the Windrush generation, where, over time, some people became less and less able to establish their status, even though that status was implied when they came to this country. That is why it is crucial that EU citizens apply under the scheme, so that they will be able to evidence their status in the future.

Both noble Lords asked me about criminal records checks. All applicants aged 10 and over will be checked against the UK’s national police database and watch-list, as the noble Lord, Lord Paddick, said. Applicants aged 18 or over will also be asked about their criminal history in the UK and overseas. The assessment of suitability will be conducted on a case-by-case basis and will take account of the applicant’s conduct in the UK and overseas, including whether they have any prior criminal convictions.

Cases will be refused where the applicant has committed criminality prior to the end of the implementation period that meets the EU public policy test. Any criminality committed after the implementation period will be considered in accordance with UK deportation rules. This means that an EU citizen who, in relation to an offence committed after the end of the implementation period, is convicted and receives a custodial sentence of 12 months or more will be considered for deportation.

The other point raised was about people who had committed crimes decades ago being refused. As I have said, conduct before the end of the implementation period will be considered against UK deportation thresholds. We think this is a sensible approach and one that will not affect the overwhelming majority of EU citizens and their family members.

The noble Lord, Lord Rosser, asked about the consequences of not applying. It is important to take a pragmatic approach in respect of people whose individual circumstances have prevented them applying, an example of which might be a mental or physical health condition. Over the coming weeks, we will be discussing with stakeholders what assistance we can give to people who might require it.

The noble Lord, Lord Rosser, also made a point about Irish citizens. As I said, they do not need to apply for settled status to protect their status and rights in the UK. However, the arrangements for existing close family members to join EU citizens resident in the UK are provided for by the withdrawal agreement and not by the UK-Ireland bilateral arrangements linked to the common travel area. Irish citizens might want to consider applying for settled status now to support future applications by family members. A successful application by an Irish citizen to the settlement scheme will make this process smoother for any family member applying in the future. However, the system will not prevent applications being made after the end of the implementation period by close family members seeking to join Irish citizens protected by the withdrawal agreement who do not have settled status.

The noble Lord, Lord Paddick, asked which family members are affected, given his own situation, which others might find themselves in. I think I answered that question earlier, so I hope that will suffice.

The noble Lord, Lord Rosser, asked who will staff the contact centre. Further details of this will be confirmed, and we will be discussing with stakeholders what the right service is and who will provide it.

Finally, the issue of landlord checks was raised. Landlord checks and the right to rent are not specific to EU or non-EU citizens; it is a requirement for all landlords to carry out such checks. Therefore, it does not matter where in the world you are from, as long as you have the right to live here.

I hope I have answered all the questions. If I have not—and there were quite a few—I will write to the noble Lords.

[Lord Kirkhope of Harrogate]

My Lords, I was trying to ask a question of my noble friend when she answered the initial questions. As someone who has had some experience as a Minister of schemes of one kind or another where the Home Office has been involved with developing ID arrangements or helping people with passport applications and so on, I welcome the fact that something is being put in place here, but I urge her to look carefully at the logistics. Is she satisfied that enough resource is being made available for this extra duty? One of the proposals is that applicants can send their passports or ID documents to the Home Office, but I am sure she is aware that, when we are dealing with EU citizens, they tend to be much more mobile on a more regular and frequent basis, going backwards and forwards from here to Europe. Can she be sure that we will make certain that we have a better level of efficiency than, sadly, we have had in the past in turning round documents quickly and in dealing with the matter as speedily and with as little complication as possible?

[Baroness Williams of Trafford]

My noble friend will have heard in the Statement that we will start to roll out the process in the summer and towards the end of the year. I would not call it a trial run, but the “private beta” phase—which I had never heard of before—is apparently a dry run, using real people who will get real documents. That is a good way to test how the system is working.

I also mentioned earlier the delivery of the settlement scheme and the Treasury’s allocation of £170 million for the further development and delivery of the settlement scheme. As my noble friend alluded to, we do not underestimate the scale of the challenge and we want to get it right. Every year, we process millions of visa and passport applications, but that does not undermine our wish to get it right. Our passport service has a good customer service record and I can tell my noble friend that, over the past year, the average turnaround time for passport applications was approximately seven days. I might add that the Institute of Customer Service ranks HMPO in the top 50 high-scoring organisations across the public and private sector.

Immigration Applications

Lord Kirkhope of Harrogate Excerpts

Wednesday 16th May 2018 Lords Chamber

[Baroness Williams of Trafford]

The right reverend Prelate is absolutely right to point out what we are endeavouring to do, which is to reduce the amount of time that people spend in limbo, to use a Christian term, while their appeals are heard or indeed while their cases are heard. I thank him for making that point. It is what we are endeavouring to do.

[Lord Kirkhope of Harrogate (Con)]

My Lords, is it not correct that, from time to time, we review the criteria that are applied in the appointment of tribunal chairmen and members? Will my noble friend indicate whether that review has taken place recently and what the basic criteria are for appointing the chairs of tribunals?

[Baroness Williams of Trafford]

My noble friend is absolutely right to make the point about the review of tribunal members. I cannot tell him when the last review was, but I certainly will write to him.

Creditworthiness Assessment Bill [HL]

Lord Kirkhope of Harrogate Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 11th May 2018 Lords Chamber

[Lord Bates]

You were? I am sorry.

That is why we now have a Secretary of State for Housing, Communities and Local Government. With all these points I am trying to set out that we do not believe that this Bill is the right way forward because it is too prescriptive in its approach. The amendments cut across the purpose and effect of the Bill so we do not support them either. But we are mindful of the importance of the responsibility to act in this area and we are doing that in a whole range of areas, as I have outlined to the House today.

[Lord Kirkhope of Harrogate (Con)]

My noble friend Lady Wheatcroft made important remarks about the exorbitant rates charged to people who are often very vulnerable in the impression that they receive when being sold these products. Following those remarks, does my noble friend not agree that the plethora of advertising—particularly on television—which presents itself to these vulnerable people ought to also contain, as in the case of cigarette sales, clear warnings on every such advert that independent advice or advice that might be obtainable through government agencies or others should be taken before anyone commits themselves to such appalling transactions?

[Lord Bates]

My noble friend is right to draw attention to this. This is why we have the FCA as an independent body to regulate activities in those areas. It is why it took the robust action it did in the case mentioned earlier by the noble Baroness, Lady Wheatcroft.