Immigration: High Court Ruling

Debate between Lord Richard and Baroness Neville-Jones

Monday 20th December 2010 Lords Chamber

[Baroness Neville-Jones]

The judgment that the court has arrived at indicates that we ought to have formulated the rules differently and the consequence of that is that we stand accused of not having consulted Parliament adequately on that point. I might say that that was not done with any intention to obviate our obligations to the legislature; this was laid out before Parliament in good faith. We felt that one of the ways in which it would be helpful to have greater flexibility when putting in the interim arrangements was to have the figure in the guidance so that it would be easy, in the light of the kind of consultation that we wished to conduct, to carry numbers over from one month to the next. I have to say that, in putting the figures into the rules, as no doubt we will now do, there will be greater rigidity in the arrangements that have to be arrived at.

The noble Baroness asked two other questions. One was whether we would consult on the changes to the new rules. Our obligation in this instance is to get ourselves into conformity with the judgment and I hope therefore that there will be no argument about what we do. She also asked whether we had listened to employers from particular sectors. The answer is that we have been consulting extremely widely and in all sectors.

[Lord Richard]

Do the Government intend to consult Parliament now? If so, how are they going to do it? The Minister said that there would be increased rigidity. What did she mean by that?

[Baroness Neville-Jones]

As I said, my Lords, the object of the Statement tomorrow will be to get us into conformity, as we understand it, with the judgment. Then, when we see the judgment in writing, if we need to make further changes in the light of that, we will certainly do so. It is not clear to me how much clearer I can be on the question of the nature of the rigidity introduced by the cap. There is complex drafting involved in putting a limit in the rules to give us the ability then to change it, which is why the Government decided, in order to retain flexibility, that we would keep the limit in the guidance.

--- Later in debate ---

[Baroness Neville-Jones]

On my noble friend’s last point, the Government are clear that we are not going to publish the legal advice that we get, for precisely the reason that he has stated. Such advice needs to be given in confidence by our advisers in the knowledge that it will not subsequently be made public.

On my noble friend’s other points, I entirely agree that there are a number of people who try to take up work illegally in this country. It is precisely that practice that the Government want to end. This is why we are introducing refinements of the controls that are already in place and making the qualifying criteria for ability to work in this country tougher. The object of the exercise is undoubtedly to ensure that those who get the right to work here are legally here under the qualifications that we are setting. He is also right to say that a number of people apply under categories of so-called skilled labour when they are clearly unskilled. That is a practice that we also intend to bring to an end.

Lastly, on the point of external immigration checks, the Government are aware of the concern on this issue and they are, indeed, going to bring in these exit checks. There are problems related to the contract which the previous Government negotiated and which we have had to end. That means that we have to find other ways of bringing in that exit check, but we will do so as early as we are able to. I have given my noble friend who asked the question earlier an estimate of when we are going to be able to do this. If we could do it earlier, we certainly would.

[Lord Richard]

My Lords, could the noble Baroness help me? Did I hear right? The consultation with Parliament is to be by means of a Statement in the other House. That Statement is to be a declaration rather than consultation with that House. We do not know yet whether it will be taken in this House and, if it is taken in this House, we do not know what consultation there will be in this House. In any case, it is going to happen tomorrow and the Government are proposing to renounce—if that is the right word—the 21-day rule. Is that really the position that the Government are taking in order to satisfy the Court of Appeal? If it is, the Court of Appeal may still be interested.

[Baroness Neville-Jones]

My Lords, I think that the Court of Appeal would expect the Government to rectify their position as soon as they are able to. As for the noble Lord’s other point, as I have said, that is a matter for the usual channels.

Terrorism Act 2006 (Disapplication of Section 25) Order 2010

Debate between Lord Richard and Baroness Neville-Jones

Monday 19th July 2010 Lords Chamber

[Baroness Neville-Jones]

My Lords, I thank noble Lords for their characteristically thoughtful contributions. The purpose of this short extension is to enable the Government to have enough time to do two things. The first is to look at the legislation concerning pre-charge detention and other counterterrorism legislation that we want to review in the round and in relation to each other. The second is to look at the existing operation of the 28-day regime. I was asked, for instance, whether post-charge questioning, which has not yet commenced, will come into operation. That is precisely one of the factors which we want to look at, together with a number of other provisions which seem to us to be relevant in deciding whether we can reduce the maximum time for pre-charge detention.

I mentioned “contingency” and the Civil Contingencies Act. I stick by my comment that, given the threat about which I will say something in a moment, we cannot say with absolute certainty that a time longer than 14 days might never be needed. Equally, we take the view that the current evidence tends to suggest that we ought not, if we can avoid it, continue with the current maximum length of pre-charge detention. However, we want to look at that and at whether it is possible to put in place some kind of contingency that will enable us, with safety, to reduce the normal maximum time.

A number of noble Lords asked why the UK had to have so long a time when other systems somehow managed to do with less. Like other Members of your Lordships' House, I greatly value the work done by organisations such as Justice and Liberty. However, when one is comparing systems, it is right to do a thorough job and, as the noble Lord, Lord West, said, it is not entirely fair to compare the UK system with, say, France’s. Indeed, even among common-law countries, the practice is not uniform. In Australia, for example, there is a 14-day limit that can be significantly extended by something called the stand-down time.

We should not forget that the threat remains. I very much hope that, by other flanking measures which the previous Government put in place and policies which we continue, we are managing to harden our targets and to become a more difficult target for terrorists. We also know more about the enemy than previously. All those are relevant factors in considering whether it is right and safe now to reduce the maximum time for our pre-charge detention.

The noble Lord, Lord Pannick, among others, asked whether there was any evidence for the operation of the 28 days and whether history showed that we needed it. He also asked whether it was right, and in accordance with the ECHR, that the suspect was not given sufficient information at an early stage about the charge. That is not the case. The grounds of arrest are put before a defendant when he goes before the magistrate, and he must go before the magistrate no later than 48 hours after arrest. There is no question that people's rights are being violated in that respect. Much as we would like not to have the legislation if we could—the object of the exercise is to see whether we can dispense with it safely—it is human rights-compliant. I hope that the House will accept that in prolonging the provision for a period while that detailed and careful examination takes place, we are not violating the rights of any current or future defendant, while protecting the public.

I have one last point to make. A noble Lord asked about the difference between the varieties of terrorism that we face. It is disturbing that we have an increase in terrorist activity in Northern Ireland. The nature of that terrorism is somewhat different from the Islamist terrorism that we face, which is one reason why we have the 28-day provision in place at the moment. We will look at introducing other measures in conjunction with a different regime on pre-charge detention, combined with our assessment of how we stand in relation to the threat. Our examination of the legislation will take all those factors—the operation of the legislation itself, our view of the threat to us and our ability to withstand the threat—into account. All those are relevant factors in deciding whether we can find some other way to deal with pre-charge detention in normal circumstances.

With that summary, I thank noble Lords for their contributions and invite the House to approve the order.

[Lord Richard]

My Lords, before the Minister sits down, may I ask one question? My noble friend on the Front Bench raised the issue that the review should be evidence-based. Of course, until we get the evidence, we do not know how much of it can be published. I totally accept that. Can the Minister go so far as to say that there will be a presumption in the review that the maximum amount of evidence that can be published will be published at the end of it?

[Baroness Neville-Jones]

My Lords, it is a fair promise to make to this House that we will publish as much of our considerations as we possibly can. On the evidence base, a number of noble Lords asked: were 28 days really necessary in those individual cases or were we dealing with a variety of Parkinson's law? I do not think that the police are guilty of applying Parkinson's law, but it is right for us nevertheless to consider whether we need such a limitation in future.