Abolished Offences
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Baroness Williams of Trafford (Con)
My Lords, I wish it were that simple. I want to acknowledge what the noble Lord has said: not only did men post-1967 face equal difficulties and persecutions for their sexuality but some of them have died—that is the tragic thing. This is complex work and we need to consider the challenging legal and practical issues in extending the scheme, but I do not want that to translate as our commitment being any less diminished.
Lord Paddick (LD) [V]
My Lords, not only do the Government appear to be dragging their feet on this issue but there appears to have been a policy shift since Liz Truss became Minister for Women and Equalities. When the noble Baroness was Minister for Equalities, did she ever feel that the UK was focused too heavily on so-called fashionable issues of race, sexuality and gender? Could this explain the Government’s reluctance to take action on this important issue?
Baroness Williams of Trafford (Con)
As I said to the noble Lord, Lord Collins of Highbury, our commitment to this has not diminished, despite the fact that it has taken time. When I was the Equalities Minister I was, and remain now, committed to equality, and the Government remain committed to equality. I am very proud of what the Conservative Government have brought forward to advance equality.
Criminal Trials: Intercept Evidence
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Lord Paddick (LD) [V]
My Lords, surely there must be some circumstances where intercept evidence could be used without compromising operational integrity, such as those mentioned by my noble friend Lord Beith. How many individuals could have been prosecuted if intercept evidence had been allowed instead of them being subjected to terrorism prevention and investigation measures, or TPIMs, at considerable additional cost—both financial and to the reputation of British justice?
Baroness Williams of Trafford (Con)
My Lords, the question of how many individuals could have been prosecuted is very difficult to answer, given that the evidence was not used. I do not know if there are figures that I can give to the noble Lord. I want to make the point that we do not actually have an objection in principle to the use of intercept material as evidence, and we have tried to find a practical way to allow the use of intercept evidence in court. As I said, though, successive reviews have found that it is just not possible.
Immigration (Collection, Use and Retention of Biometric Information and Related Amendments) Regulations 2021
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Lord Paddick (LD) [V]
The noble Baroness has explained that the draft Immigration (Collection, Use and Retention of Biometric Information and Related Amendments) Regulations 2021 are intended to improve the levels of assurance about the identities of those passing through or coming to the United Kingdom through the use and retention of biometric information obtained for immigration and nationality purposes. It is part of the Government’s move from physical documents to digital, despite the problems already identified where EU citizens with either settled or pre-settled status are being detained at the UK border. Many of these issues could be quickly and easily resolved if, as this House repeatedly told the Government, physical proof had been provided of settled status alongside digital recording.
While we are on the subject, what happens to EU citizens who have applied for settled status but who have yet to receive a response from the Home Office? I have some knowledge in this regard. I have an email from the Norwegian authorities to show that my application for residency in Norway has been submitted. I have to show it at the Norwegian border to prove that I continue to have the right of residence while my application is being considered. Can the noble Baroness please tell the Committee what happens at the UK border? What instructions are given to Border Force staff about pending decisions on settled status?
As the noble Baroness acknowledges, there is a wide range of different provisions in this SI, as we are accustomed to when it comes to immigration legislation, making it difficult to scrutinise—hence only Front-Bench participation in this debate, which is worrying for an affirmative procedure statutory instrument.
“Take back control of our borders”, the noble Baroness continues to say, and that prompts me to continue to say that visa-free entry to the United Kingdom has recently been extended to nine other countries, as well as being retained for EU, EEA and Swiss nationals. Therefore, the claim that we are taking back control of our borders has a certain hollow ring to it.
The regulations allow a photograph to be taken and retained in limited circumstances when someone passes through the border; for example, where a person cannot produce a photo ID document such as a passport or does not have leave to remain in the United Kingdom. That photograph can also be taken subsequently by appointment. Photographs can also be taken of the dependants of individuals in these limited circumstances. The photograph may be retained only where there is already a power to do so and can be used to investigate an offence or for other limited purposes. It must be destroyed when it is no longer needed; for example, when it is established that the person is a British citizen.
Retention of fingerprints is extended from 10 years to 15 years, as the noble Baroness said, with the ability to retain them beyond that date if necessary; for example, where the person is subject to a deportation order. Photographs are retained until the person obtains a United Kingdom passport. Biometric data can also be reused; for example, when a further application is made. The clock resets when the further application is processed. At the end of the 15-year period the fingerprints must be destroyed and digital copies must be made irretrievable, and someone is entitled to a certificate to prove that this has been done.
I understand that fingerprints do not change significantly during a lifetime, but the facial appearance of a person does, which is why photo ID such as driving licences and passports require regular renewal. Do the Government intend to require those whom they have taken facial photographs of to have a photograph retaken, say, every five years?
I am a little concerned that the regulations state that, where information is different in physical and digital forms, the digital information takes precedence. I understand that, if someone’s immigration status is revoked and the physical document is not in the possession of the Secretary of State, it can be changed digitally, and in such cases the digital record takes precedence. But is this always the case? Could there be circumstances where the digital record is wrong, for some reason? Should not cases therefore be decided on their merits, rather than by setting down in legislation that the digital copy automatically takes precedence? Aside from these concerns, we are content with these regulations.
On the draft Immigration and Nationality (Fees) (Amendment) Order 2021, the Government seem intent on making immigration and nationality fees a money generator. Despite the fact that photographs and fingerprints can be reused at the press of a button each time someone applies for an extension of leave to remain, instead of a person being sent to an appointment to give their fingerprints and photographs, the Government still claim that
“as the departmental processing costs for reuse are similar to those for taking fresh biometrics the fee must remain.”
Can the Minister explain how the cost of copying and pasting fingerprints and photographs electronically from an existing application to a new applications is similar to that of arranging for a person to attend in person and an official taking their fingerprints and photograph? I know from personal experience of having taken many fingerprints from individuals that that can be a difficult and time-consuming process. Is this not just another example of digital efficiency producing more profit for the Home Office?
On premium services, can the Minister explain what impact people paying even more to the Home Office for optional premium services has on what the Explanatory Notes refer to as the “standard or basic service”? Does the Home Office employ additional staff to provide premium services, or is the time taken for the standard or basic service longer the more people avail themselves of the premium service?
It is noted that the definition of premium service, previously restricted to services in connection with immigration and nationality applications, is to be extended to immigration and nationality generally. While the Government provide the example of Border Force officers checking passports on carriers at sea, which some carriers choose to pay for, one can also foresee a situation where Border Force could charge a fee for fast-track immigration at airports. Can the Minister explain what impact premium services such as checking passports on carriers at sea have on the capacity of Border Force to process passengers at air and sea ports? Do the Government have any plans to introduce fast-track entry for a price at UK borders?
Will any income generated by these premium services be used to provide more Border Force officers, or will the already unacceptable waiting times at UK borders simply be extended for those unwilling or unable to pay for a premium service? We are very concerned about the widening of the definition of premium services as set out in these regulations.
British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021
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Lord Paddick (LD) [V]
My Lords, I again thank the Minister for explaining these regulations. As she explained, the draft British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021 seek to prevent children born after 30 June 2021 failing to acquire British citizenship as a result of their parents not having EU settled status at the time of their birth. As my noble friend has just said, it covers only late applications made or resolved at the end of the grace period on 30 June 2021. Although it is welcome, it raises a series of issues. British citizenship is granted on the date when settled status is granted.
I commend my noble friend Lady Ludford on her excellent questions to the Minister. As a consequence, I can be brief. First, can the Minister explain why British citizenship is not being backdated to the date of birth? If the parent was entitled to remain in the UK indefinitely when the baby was born, albeit that by reason of late processing or late application settled status was not granted until after the end of the grace period, surely the baby is entitled to British citizenship from birth. Secondly, how can a child born in the UK to a parent entitled to remain in the UK indefinitely be denied British citizenship because its parent did not fill in the right forms? The resonance with the Windrush generation, as my noble friend has just alluded to, is deafening.
Surely if the Government can amend the British Nationality Act 1981 by means of this statutory instrument to deal with a baby born in the UK to parents who do not at the time of birth have formal legal indefinite leave to remain but are subsequently granted EU settled status, they could amend the Act so that a baby born in the UK in such circumstances could be granted British citizenship from birth. The point I am trying to make is this: a differentiation is being made on the basis of an administrative process—the application for and granting of EU settled status—rather than on the right of the parent to remain in the UK as a result of living and working in the UK before 31 December 2020, for example. I understand that the Government’s position may be that EU citizens who do not apply for settled status before the end of the grace period without a reasonable excuse are not legally entitled to indefinite leave to remain, but that is a restriction that the Government have put in place.
In the case of the Windrush generation, the Government have quite rightly accepted that those who have lived and worked in this country for decades but who were undocumented because they did not apply for British citizenship or a UK passport were treated wrongly, and they are compensating—too slowly, and inadequately—those who were wronged. The Government have accepted that these people were entitled to indefinite leave to remain, despite the fact that they did not apply for proof of their entitlement. Why are the Government repeating the same mistake with EU citizens?
I am sure that this statutory instrument is meant to be a positive step, but for me it raises more fundamental questions. It demonstrates clearly what the Government can do if they so wish—and what they wish to do is to penalise EU citizens in a similar way to which they penalised those from the Windrush generation, not because they do not have every right to indefinite leave to remain in the UK but because they did not apply for it. We support this SI as far as it goes, but it does not go far enough.
Immigration Rules: Statements of Changes
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Lord Paddick (LD) [V]
My Lords, it is not often that I agree with the noble Lord, Lord Green of Deddington, but to the following extent I do. The changes to the Immigration Rules contained in these statements are, as many other noble Lords have said, complex and bewildering. The Home Secretary heralds such changes as simplifying immigration law, but that is akin to simplifying pi by rounding it to the first 500 decimal places. It is only the most glaring changes that stand out, unless you are an immigration lawyer. How can Parliament hold the Government to account in such circumstances, when the changes have already come into effect and the other place has not even debated them yet? I am talking about more than just scale and complexity. As the noble Lord, Lord Green, said, the Home Office has the ability to make substantial changes through these statements.
Many of us were outraged that the Government, in their New Plan for Immigration, sought to treat genuine asylum seekers who have a legal right to claim asylum in the UK less favourably, just because they arrived in the UK by irregular routes. However, in these changes to the Immigration Rules, the Government have gone further, so that the Home Office does not even have to consider whether there is any merit in the claim, if the refugee has travelled to the UK through any so-called “safe” third country—unless, after six months of desperately trying to deport the refugee, it has failed to do so.
Previously, under EU Dublin III, if a refugee had claimed asylum in another EU country, their application could be ruled inadmissible and they could be returned to the country where they made their first claim. Under these new rules, an asylum claim can be ruled inadmissible just because the refugee travelled via a so-called “safe” third country, whether or not they have previously claimed asylum, and whether or not any of the countries through which they have travelled is willing to take them back. In fact, the rules allow the UK to send a refugee to any “safe” country in the world that is willing to take them, even a country the refugee has never been to and has no connection with.
Can the Minister confirm that, for six months, the substantive claim for asylum will not even be considered in such cases? The noble Lord, Lord Frost, has confirmed that the European Commission is not allowing bilateral agreements between the UK and EU member states, so all this means is that genuine refugees who arrived in the UK via irregular routes will be kept in the UK at taxpayers’ expense for an additional six months before their application is even considered.
The explanatory notes say:
“A stronger approach to disincentivise individuals is needed to deter claimants leaving safe third countries such as EU Member States, from making unnecessary and dangerous journeys”.
I have heard first hand from young asylum seekers who have made it to the UK, and their testimony is clear that places such as Italy and France are not safe, particularly for young unaccompanied refugees. Also, refugees are often English speaking, some with family already in the UK.
As the noble Lord, Lord Dubs, said, there are no longer any “safe and legal” routes for refugees to take. The few routes that were open to some of them involved having to be identified by the UNHCR while they were in refugee camps, then often waiting for two years or more, undergoing numerous interviews, before finally being accepted. For many it is too dangerous to wait in such circumstances, so they make their own way.
Many of these refugees have endured years of suffering in their own country. Some have been tortured. They have faced dangerous journeys, extending over many months and hundreds of miles. Do the Government seriously think an extra six-month wait, albeit in inadequate Army barracks in the UK, will deter them? As a result, in the past six months, over 1,500 applications have been placed on hold and, despite a 24% drop in applications over the last 12 months, more than 50,000 have now been waiting over six months for their asylum applications to be determined—an increase of 71% on the year before.
There are also important questions arising out of these changes to the Immigration Rules concerning EU citizens in the UK who are awaiting the outcome of their settled status applications or who have applied late. But this totally inadequate means of holding the Government to account—with six-minute speech limits—means I cannot even raise these important questions on the Floor of the House. The whole process, and what the Government are trying to do around immigration, is a disgrace.
Net Migration
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Baroness Williams of Trafford (Con)
My Lords, one of the things we discussed in previous debates was employers in this country not seeking to use cheap migrant labour but to rely on our domestic labour supply. We want a fair system for asylum seekers with safe, legal routes.
Lord Paddick (LD) [V]
My Lords, the Home Secretary has made a lot of strengthening our approach to criminality and implementing powers to refuse entry to arrivals convicted of certain criminal offences. How can this be when EU citizens are still allowed to enter the UK without a visa and the UK has lost real-time access to the EU criminal records database? How does Border Force know whether a passenger crossing the UK border has a criminal record?
Baroness Williams of Trafford (Con)
My Lords, from 1 July it will be incumbent upon people who enter this country to do so through a legal route, and the immigration system will be operating from then. It is right that we provide inadmissibility for people who do not come through those safe and legal routes.
Daniel Morgan: Independent Panel Report
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Lord Paddick (LD) [V]
My Lords, when the Metropolitan police service refused to allow the Independent Police Complaints Commission to visit the scene of the police shooting of the innocent Brazilian Jean Charles de Menezes in 2005, I went to the then Deputy Commissioner of the Metropolitan Police and told him it was the most stupid decision I had ever heard of in policing, because it would give credence to people who were expecting a cover-up. The second most stupid decision must be that of the Home Secretary to block the publication of a report into an alleged establishment cover-up over the investigation of the murder of Daniel Morgan. Does the Minister not see the parallels?
Baroness Williams of Trafford (Con)
My Lords, I do not see how there can have been a cover-up, if the Home Secretary has not yet received the report. We need to be very careful about the series of events that are required for publication to take place. I am sure that, like the noble Lord, we all look forward to the report being published in Parliament.
Right-to-Work Checks for UK Nationals
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Baroness Williams of Trafford (Con)
The answer is actually quite clear: we need to check the security of what might go forward. We are undertaking a review of the value of using specialist technology, including identity document validation, in supporting the system of digital right-to-work checks to include UK and Irish citizens, as they are not in scope of the Home Office online checking services.
Lord Paddick (LD) [V]
My Lords, not only are the Government insisting on in-person physical right-to-work checks but some parents say they are being asked by schools to produce passports to prove their child’s right to education as a result of the UK’s departure from the European Union. Can the Minister confirm whether the Home Office is requiring schools to do this and, if so, on what legal basis? If it is not, will the Minister take urgent steps to stop this practice?
Baroness Williams of Trafford (Con)
Well, I am very grateful to the noble Lord for a heads-up this morning, and it is important to say to him that Brexit has not changed the rights of foreign nationals to access schools. State schools do not have a role in policing the immigration system. Independent schools, with sponsor licences, do have an explicit duty to have documents proving the right to stay in the UK. I do not know the details of the noble Lord’s case, but I would be most grateful to have some further detail, and perhaps we can discuss it further.
Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) Order 2021
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Lord Paddick (LD) [V]
My Lords, I thank the Minister for explaining these statutory instruments. My noble friend Lady Bowles of Berkhamsted has raised important issues relating to the operation of the legislation more broadly, but as far as these SIs are concerned, the first relates to the code of practice covering cash searches under the Proceeds of Crime Act 2002, which needed to be revised as a result of the powers extended by Section 22 of the Criminal Finances Act 2017. Although these new powers were brought into effect in Great Britain shortly after Royal Assent, as the noble Baroness explained, the suspension of the Northern Ireland Assembly in February 2017, until its reconstitution in January 2020, prevented the Home Office seeking the approval of the Northern Ireland Assembly to commence the relevant provisions of the 2017 Act in Northern Ireland. The Home Office has now secured that approval, hence this and the other four SIs.
Although this SI and the others being debated simply bring Northern Ireland into line with the rest of the United Kingdom, and there is a good reason why this was not possible before, there is one aspect of this first SI on which I seek further information from the Minister. The Explanatory Memorandum says that the codes of practice require
“an officer who is contemplating using the powers to consider the impact on the community in their use, balanced against the public interest and the benefit … the powers would add to the case.”
For me, who has no knowledge or experience of Northern Ireland, that still has particular resonance for Northern Ireland. Could the Minister explain further what the impact might be of the use of these powers in the light of the circumstances in Northern Ireland? Is there a potential for the use of these powers to be particular sensitive against the background of the Province? The noble Lord, Lord Dodds of Duncairn, mentioned that there was a protocol between, I think, the Police Service of Northern Ireland and the National Crime Agency. Is this further evidence of such sensitivity? The noble Baroness, Lady Ritchie of Downpatrick, wondered whether there was a diversity impact assessment and a human rights assessment, again suggesting that there might be particular issues in Northern Ireland that are not as relevant to the rest of the United Kingdom.
The second SI relates to revised codes of practice relating to the investigative powers of prosecutors to cover unexplained wealth orders, interim freezing orders, disclosure orders, extending the powers of members of staff of the Serious Fraud Office, detained property and frozen funds investigations. These are again the result of the Criminal Finances Act 2017 amending powers under the Proceeds of Crime Act 2002. As with the other SIs, other than drafting changes and responses outside the scope of the SIs, there were no responses to the public consultation. In addition, I understand that the Home Office has invited representations from the Attorney-General’s Office, Her Majesty’s Treasury, the Department of Justice in Northern Ireland and the Scottish Government, in accordance with the Proceeds of Crime Act, and each organisation has confirmed that it is content.
The third SI relates to revised codes of practice for investigations concerning the use of general asset recovery investigation powers in Chapter 2 of Part 8 of the Proceeds of Crime Act, as amended by the Criminal Finances Act 2017, now that these provisions are being enacted in Northern Ireland. These are codes of practice for officers and other persons exercising their functions under POCA, as opposed to those for prosecutors contained in the second SI.
The fourth SI relates to the need for a revised code of practice in connection with the search, seizure and recovery of certain listed assets, such as precious metals and stones, watches, art works, vouchers and postage stamps, as opposed to the first, which relates to cash, gaming vouchers, fixed-value casino tokens and betting slips.
The fifth SI relates to a revised codes of practice in connection with the search, seizure and detention of property, such as cars, jewellery, electric goods and clothing, that is often of high value and can be easily moved, hidden or sold during a confiscation investigation following a criminal conviction. As with all these SIs, the need for the change is the result of the enactment of changes to the Proceeds of Crime Act made by the Criminal Finance Act 2017 that were delayed in Northern Ireland as a result of the suspension of the Northern Ireland Assembly. As a result, with the exception of the community impact concerns, we are content with the orders.
Misuse of Drugs Act 1971 (Amendment) Order 2021
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Lord Paddick (LD) [V]
My Lords, I have to get used to Grand Committee not being able to unmute me and having to do it myself, unlike in the Chamber. However, we shall go now.
I thank the Minister for introducing this order, which brings three benzodiazepines under part 3 of Schedule 2 to the Misuse of Drugs Act, owing to their potential harm and prevalence in the UK. The noble Lord, Lord Crisp, quite rightly highlighted the issues associated with similar drugs that are legally overprescribed. As the noble Baroness mentioned, these drugs are related to Rohypnol, the so-called date rape drug, and to Xanax and Valium—well-known anti-anxiety drugs that are highly addictive, or, as the Minister called it, resulting in high dependency. In addition to their potential use to sedate victims by perpetrators of sexual offences, they are respiratory suppressants that can lead to the shutting down of the respiratory system and death, particularly if taken in conjunction with alcohol or similar drugs.
Of course, we on these Benches take a harm-reduction approach to the misuse of drugs, and the fact that one of these drugs has resulted in 12 deaths in the UK is of concern. Can the Minister give any more details of the circumstances of these deaths? Were they people with mental health issues who were self-medicating? Were they people who had taken these drugs in combination with other drugs or alcohol recreationally? Or were they drugged by others?
I ask these questions as there are concerns that the lack of mental health services for those suffering from anxiety and the extended waiting times for people to receive treatment, together with the stigma of suffering from poor mental health, may be driving people to seek substances such as these as a means of immediate relief from their symptoms, without seeking professional medical help. Pushing people into seeking drugs where there is little or no quality control and where the amount of active ingredient contained in each pill can vary enormously can lead to accidental overdose, with disastrous consequences.
Can the Minister point to any research that demonstrates the efficacy of moving psychoactive substances such as these from being covered by the Psychoactive Substances Act 2016 into being included as class C drugs under the Misuse of Drugs Act 1971? How less likely are people to take these drugs as a result of this sort of order? Does the Minister not agree that, as far as most young people in particular are concerned, it makes little difference whether a drug is illegal under the Psychoactive Substances Act or the Misuse of Drugs Act, and that even the classification of the drug under the Misuse of Drugs Act has little impact on the attitudes of those who misuse drugs towards different substances?
Is it not time for an overhaul of the whole approach to the misuse of drugs, adopting a health-based, harm reduction approach based on educating people, particularly the young, as to the effects and dangers of different drugs, rather than an emphasis of police and other criminal justice system resources on criminalising the misuse of drugs that often have only a minimal effect? Diverting resources away from the so-called war on drugs and into effective mental health provision to reduce reliance on drugs, into drug treatment for those addicted, and into education on the effects and dangers of drugs misuse would be a far more effective way of dealing with the issues that this order is intended to deal with.
Is this order no more than rearranging the deckchairs on the Titanic that is the drugs-misuse crisis in the UK? The Government’s failure to have any lasting impact on the supply side of the illegal drugs market surely suggests that the focus should now shift to the demand side, reducing the demand for controlled drugs through adequate mental health provision, education and treatment of addiction. We do not oppose the order, we just ask: what evidence is there that it will be of any benefit?