Nationality and Borders Bill

Lord Rosser Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

I hope that the right reverend Prelate’s amendment is accepted by the Government tonight, but if they are unable to do that they should at least give the right reverend Prelate the assurance that this will be considered in whatever pre-legislative scrutiny takes place of proposals to go into the new legislation. I cannot help thinking—it is a thought that the noble Lord, Lord Coaker, and other noble Lords, expressed earlier today—that the cart has gone before the horse; how much better it would have been if Part 5 was not in this Bill at all but we had dealt with this when that new legislation came forward.

[Lord Rosser (Lab)]

My Lords, I will be brief. It has been said that Amendment 70A would reinstate the rights that migrant domestic workers had under the pre-2012 visa regime. It would allow workers to change employer and, crucially, renew their visa—a fundamental right that they do not currently have, leaving them either trapped with abusive employers or destitute and at risk of further harm.

We have reservations about proposed subsections (2)(c) and (d). Although they reflect the situation of a person who applied for a domestic worker visa before 2012, these proposals may be slightly more permissive for people who are currently here, for example, on a skilled worker visa.

However, as the noble Lord, Lord Alton of Liverpool, said, if the Government are not prepared to accept this amendment in full, they should at least agree to take it away and come back with a proposal to protect these workers, in particular by allowing them to change employer and renew their visa.

Amendment 75 would require the Government to publish their review of Tier 1 investor visas granted between June 2008 and April 2015 before any replacement scheme can be brought into operation. As has been said, in March 2018 the Government announced a review of golden visas issued between 2008 and 2015, following revelations that the Home Office and banks had made next to no diligence checks in that period. As I understand it, according to a freedom of information request in June last year, the Home Office is reviewing some 6,312 golden visas— half of all such visas ever issued—for a range of possible national security threats. We now know, almost four years after the Government announced the review, that the findings have not been reported, and, subject to what we may hear in response, no satisfactory explanation has been given for this unacceptable delay. One is left to one’s own conclusions as to why the Government might be so interested in delaying the outcome of that review.

I note what the noble Lord, Lord Wallace of Saltaire, said had happened since 2015, and the reference to money from—I think—Chinese sources, and to a Labour MP. I would not like to disappoint the noble Lord, Lord Kerr of Kinlochard, who referred to party politics, but my recollection is that there was also a suggestion that a Mr Ed Davey may have received some money from the Chinese. I assume that, unfortunately, the noble Lord, Lord Wallace of Saltaire, just did not recall that, any more than Mr Ed Davey did.

I listened with interest to the comments of the noble Baroness, Lady Jones of Moulsecoomb. I think she said she had dreamt that there had been a general election—but she did not tell us what the result had been, and whether I would be happy with it or disappointed.

In conclusion, I hope we will hear something positive on Amendment 70A. The right reverend Prelate, the Bishop of Bristol, went through all the arguments for the amendment and the reasons it is needed, and I have no intention of repeating them. I also hope we hear something positive and more specific on Amendment 75. I asked the Government in Committee about the timescale. I said, “Is it this year?” and the reply was:

“Yes, I hope that it will be this year”.—[Official Report, 10/2/22; col.1924]


Bearing in mind that a few weeks have passed since Committee, perhaps the Minister will be able to say something firmer and more specific than, “Yes, I hope that it will be this year.”

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We support these amendments. Clauses 76 and 77 should not stand part of the Bill.

[Lord Rosser (Lab)]

We also think that the provisions in Clauses 76 and 77 are unnecessary and in fact ought to be removed from the Bill.

The Bill requires the Tribunal Procedure Committee to give the tribunals the power to fine individuals exercising a right of audience or a right to conduct litigation, or an employee of such a person, for “improper, unreasonable or negligent” behaviour. There are issues about wasted costs. As has been said, this change could certainly affect the willingness of lawyers and solicitors to take on difficult cases for fear of risking personal financial liability. As far as we are concerned, the immigration tribunals already have all the case management costs and referral powers that they need to control their own procedure.

In Committee I asked how many of the cases dealt with by the immigration tribunal over the last 12 months fall within the category of unreasonable behaviour, for which the Government would expect these costs orders measures to be activated. I thank the Minister for his letter in response, which states in the second paragraph that:

“It is not, however, possible to say how many cases dealt with by the Tribunal within this period fell within the category of unreasonable behaviour. This is because we do not hold data on the number of cases where behaviour or circumstances could have been considered unreasonable, but where no costs order was sought, or considered by the tribunal of its own initiative.”


I have to say that that letter simply confirms that the Government have no hard evidence to support their assertion that the provisions of Clauses 76 and 77 are necessary, because of the reasons set out in the letter, which I quoted and which indicate a certain paucity of hard evidence to support the Government’s position.

I will be interested in the Government’s reply to see whether they challenge my interpretation of the content of the letter of 3 March which the Minister was good enough to send to me. However, certainly, in the absence of a government response saying that their letter did provide the hard evidence to back up their view that the provisions of Clauses 76 and 77 are necessary, I must say that it is very difficult to understand why they are bringing forward the provisions outlined in those clauses.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank my noble friend Baroness McIntosh of Pickering for explaining her amendment. Government Amendment 73 is a technical amendment to Clause 77. It does not change the policy; it makes a minor revision to the drafting of subsection (1) of Clause 77 to ensure that it matches the rest of the clause in only making provision in relation to the Immigration and Asylum Chamber. This change will prevent any uncertainty arising about the jurisdictions in which this clause should be applied, and it gives the Tribunal Procedure Committee complete clarity about how to approach drafting the rules to enact these measures.

I turn now to Amendments 72 and 73. The Government are committed to making the immigration and asylum system more efficient, while also maintaining fairness, ensuring access to justice and upholding the rule of law. To achieve this, we need all representatives involved in these proceedings—whether they are acting for the appellant or for the Home Office—to play their part in ensuring that appeals run smoothly. Representatives do not just have a duty to act in the best interests of their client; they also owe duties to the courts and to the public interest, which include acting with integrity, upholding the rule of law and supporting the proper administration of justice. We are aware that there are concerns about the behaviour of some representatives in immigration proceedings, which can waste judicial and tribunal resource and lead to delays in the tribunal process. Existing case law identifies the types of circumstances and behaviours which have led to costs orders being made or considered, and the principles applied by the courts. These have included showing a complete disregard for procedural rules through, for example, abusing court processes in relation to evidence or the timing of applications. As with the current costs orders regime, the policy will apply equally to the representatives of both parties—in answer to the question of the noble Lord, Lord Paddick. This will include the Home Secretary when represented by presenting officers. To further ensure fairness, the paying party will be able to make representations before any order is made, and the tribunal retains absolute discretion as to whether a charge should be made in each case.

As I explained in Committee, tribunals can currently make wasted and unreasonable costs orders which relate to the legal costs of the parties. However, these mechanisms are generally only considered at the request of the other party and are infrequently employed. Clause 76 creates a new power for tribunals to order a party to pay an amount which represents a portion of the tribunal’s costs which have been wasted as a direct result of that party acting unreasonably, improperly or negligently. This power applies across all tribunal jurisdictions and is subject to the Tribunal Procedure Committee making rules for its application in a particular tribunal. It will allow the tribunal to make an order in relation to wasted tribunal resources in the same types of circumstances which would currently warrant a wasted or unreasonable costs order. An order can be made against “relevant participants”: this means legal and other representatives exercising rights of audience, and the Secretary of State where they are a party and do not have legal representatives. I hope that this goes some way to reassuring my noble friend.

To encourage increased consideration of whether to make costs orders, Clause 77 provides a duty on the Tribunal Procedure Committee to introduce tribunal procedure rules in the Immigration and Asylum Chamber. This will lead to judges more regularly considering whether to make a wasted costs order, an unreasonable costs order or a tribunal costs order under the new Clause 76 provision. This will ensure that circumstances and behaviours which have warranted the making of costs orders previously will more often give rise to judicial attention. While the requirement in Clause 77 is for the TPC to make rules in the Immigration and Asylum Chamber, it is at the committee’s discretion to create similar rules in other jurisdictions if it considers it appropriate. Specifically, Clause 77 requires procedural rules which identify circumstances or behaviours which, absent of reasonable explanation, the tribunal will treat as warranting consideration of the making of a costs order. The rules thereby introduce a presumption that requires the representative, or other relevant party responsible for such circumstances or behaviour, to explain themselves and why such a costs order should not be made. This will ensure the regular consideration of costs orders by the tribunal. More importantly, however, the tribunal will retain absolute discretion as to whether to make an order in all cases.

Noble Lords have asked whether this will mean fewer representatives willing to take on immigration work. The Government think it right that representatives should explain themselves if they are responsible for circumstances to be set out in the rules as warranting consideration of a costs order. However, where there is a reasonable explanation, no order would be expected. The tribunal continues to have full discretion as to whether to make the order. Therefore, these changes should not impact legal representatives who fulfil their duties to the court, remain committed to their work and ensure justice for their clients.

The noble Lord, Lord Paddick, asked why these changes are being made in the Immigration and Asylum Chamber and not in other jurisdictions. Obviously, the Nationality and Borders Bill as whole is focused on reforming the asylum system. Clauses 76 and 77 are part of a programme of reforms designed to streamline immigration and asylum appeals. There has been judicial concern, and a recognition that a problem exists with the behaviour of some legal representatives and other relevant parties in immigration proceedings. It is at the discretion of the Tribunal Procedure Committee to create similar rules in other jurisdictions if it considers it appropriate.

For the reasons I have outlined, I hope that my noble friend Lady McIntosh of Pickering feels able to withdraw her amendment.

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[Baroness Smith of Newnham (LD)]

My Lords, I give the Liberal Democrats’ support for this amendment and pay tribute to the noble Lords, Lord Alton and Lord Patten of Barnes, for their repeated campaigns to support Hong Kong and in particular young Hong Kongers.

It is perhaps right that the noble Baroness, Lady Williams of Trafford, is on the Front Bench when, for once, we are saying, “Actually, you’ve got this right”. So often, we seem to give her such a hard time, although we say, “We think that she is probably with us but having to give the government line”. The fact that the Government have now acknowledged the importance of supporting young Hong Kongers is very welcome. Alongside the privy counsellorship, we are very keen to welcome that.

I am afraid that these Benches disagree with the noble Lord, Lord Green of Deddington—actually, this is the right thing to do. It is not about to open the floodgates to mass immigration, but it does give an opportunity for young Hong Kongers who feel the need to come here to do so.

[Lord Rosser (Lab)]

I express our wholehearted support for the amendment and the extension of the BNO scheme to young Hong Kongers. I congratulate all noble Lords around this Chamber, from all parties and no party, who have campaigned on this issue. I thank the Government for their decision and the progress that has been made, which has led to agreement all around the House.

[Lord Sharpe of Epsom (Con)]

I thank noble Lords and pay particular tribute to the noble Lord, Lord Alton of Liverpool, who tirelessly campaigns on this and other issues. I thank him for his kind words, and I thank all noble Lords who have contributed to this short debate on Amendment 76.

We recognise that the BNO route is creating unfair outcomes for the families of BNO status holders, with some children able to access the route independently because they were old enough to be registered for BNO status, while their younger siblings, aged between 18 and 24, are unable to do so. That is why, on 24 February, the Government announced a change to the BNO route to enable individuals aged 18 or over who were born on or after 1 July 1997 and who have at least one BNO parent to apply to the route independently of their parents.

The policy change addresses the concerns raised by the noble Lord, Lord Alton, and other Members of both Houses. It will ensure that we are addressing potentially unfair outcomes for families of BNO status holders and ensure that the UK meets its ongoing commitment to BNO status holders.

In answer to the noble Baroness, Lady Bennett, I say that there are of course other routes for those who are not eligible under this particular scheme. We intend to lay the changes to the Immigration Rules in September, and they are expected to take effect from October.

In the light of these assurances, I ask the noble Lord to withdraw the amendment.

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[Lord Paddick (LD)]

My Lords, obviously, these Benches wholeheartedly support Amendment 79 for the reasons explained.

I have some sympathy for the noble Baroness, Lady Neville-Rolfe, as far as Amendment 82 is concerned. One would hope that there would be cross-departmental working on trade agreements so that there would be no agreement to any visa deal without Home Office agreement. However, bearing in mind the apparent disagreement between the Home Office and the Ministry of Defence over the role of the MoD in the channel in relation to migrant crossings, I am not reassured. Perhaps the Minister can reassure the House on this issue.

[Lord Rosser (Lab)]

I too will be brief. I was anticipating a more favourable response to Amendment 79 and the issue of the QR code. I was certainly taken aback to hear from the noble Lord, Lord Oates, that the Home Office has now rejected the bar code. I accept that the Government did not give any specific commitment in relation to the QR code when we discussed the matter in Committee, other than to say that they would take the matter back to the Home Office.

Nationality and Borders Bill

Lord Rosser Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 2nd March 2022 Lords Chamber

Moved by

[Lord Rosser]

31: Clause 15, leave out Clause 15

[Lord Rosser (Lab)]

My Lords, Clause 15 puts into the Bill an existing immigration law on inadmissibility that makes any asylum claim inadmissible in a number of circumstances, including if the claimant has passed through, or has a connection to, a safe third country. The result of a finding of inadmissibility is that, unless the Secretary of State decides that there are exceptional circumstances, the claimant will be denied access to the UK’s asylum system for a “reasonable period”, currently defined as six months in Home Office policy, while the UK seeks to transfer them to “any other safe country”. With the huge backlog and delay currently in the system, it is impossible to understand how adding another six months to the asylum process will help an already dysfunctional system.

Clause 15 as it stands is neither acceptable nor deliverable in practice. We also have concerns on the definitions of “safe third state” and “connection”, and on the lack of relevant international agreements. Serious concerns have been raised by the UNHCR and the cross-party Joint Committee on Human Rights, among others. There is an absence of adequate safeguards against returning individuals to countries to which they will be denied rights owed to them under the refugee convention.

Safe returns as part of an international asylum system are not new and are accepted under agreed conditions, but this clause does not provide for safe reciprocal return agreements. Even as it stands, the Government do not have returns agreements with EU member states, namely the safe third countries that refugees are most likely to have passed through. Instead, this provides for cases to be stalled and unilaterally declared inadmissible, without a requirement for a relevant returns agreement but on the basis of dubious connections to another state, where a person may or may not be able to enter an asylum system. We are talking here about asylum, not general immigration.

The clause provides that a claim is inadmissible if a person has a connection to a third state. It then clarifies that a connection can be made with a state that a person had never been to. It further clarifies that a person can be removed to a completely different state other than the one that they have been deemed to have a connection with. The UNHCR has described this as

“a significant and highly problematic departure from international practice and UK case law.”

I will endeavour to be brief. I appreciate that this is Report and not a rerun of Committee, but in Committee the Government accepted on more than one occasion that we needed to have returns agreements in place. There was no direct answer given to a question asked by my noble friend Lord Dubs, who sought confirmation that to date we do not have an agreement with any country for the return of the people whom we are now talking about. This is about asylum. The answer no doubt is that we just do not have any such agreements. Despite saying in Committee on more than one occasion that we needed formal returns agreements in place to return people, the Government later went on to claim that we do not necessarily need formal return agreements in place, and that we could have

“formal and informal, diplomatic and otherwise.”—[Official Report, 3/2/22; col. 1106.]

The reality is that we need formal return agreements in a situation where the number of people the Government intend to deem inadmissible will be high. In that situation, you cannot address this through unstated, unclear, ill-defined, informal ad hoc arrangements, as the Government seek to suggest. This clause is clearly based on the presumption that the Government can persuade other countries who already take greater asylum responsibility than the UK to accept people from the UK and agree to relieve us of a substantial part of the modest responsibility we currently take.

The reality of Clause 15 is that no such agreements are likely to materialise in the foreseeable future, as was clear from the debate in Committee. Dublin III has now gone and not been replaced. That is why my Amendment 32 provides the much-needed safeguards that Clause 15 can come into force only if the UK has safe returns agreements with third states and not before. I beg to move.

[Lord Paddick (LD)]

My Lords, Clause 15 allows the Secretary of State to declare an asylum claim inadmissible if the person has a connection with a “safe third state”. Because it is a declaration of inadmissibility, there is no appeal other than judicial review, and there is nothing to stop the Home Secretary from removing the person to another third state with which they have no connection in the meantime, as the noble Lord, Lord Rosser, has explained. A connection to a safe third state includes where a claim for asylum in that country has been refused, a country where they could have claimed asylum but failed to do so, or where the Home Secretary thinks that it would have been reasonable to expect them to have claimed asylum in another country.

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[Baroness Williams of Trafford (Con)]

Given what I have already stated about an indefinite state of limbo, surely the Minister’s words would have some sort of weight. I have also said that any decision to declare a claim inadmissible and remove an individual will be subject to standard principles of public law, and that we will consider their obligation within a reasonable time.

[Lord Rosser (Lab)]

I thank the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Etherton, for their contributions to the debate. I also thank the Minister for her response. I appreciate that there are two amendments down: one takes the clause out and the other seeks to amend the clause to provide for safe return agreements to be put in place. I appreciate that other noble Lords can ask for a vote, but I will not be seeking a vote on taking the clause out. Instead, I intend to seek a vote on the amendment we have put down.

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Moved by

[Lord Rosser]

32: After Clause 15, insert the following new Clause—
“Safe third State: commencement
(1) The Secretary of State may exercise the power in section 83(1) so as to bring section 15 into force only if the condition in subsection (2) is met.(2) The condition in this subsection is that the United Kingdom has agreed formal returns agreements with one or more third States.(3) A “formal returns agreement’’ means an agreement which provides for the safe return of a person making an asylum claim (a “claimant”) to a State which is party to the agreement, where the claimant has a connection to that State.”

[Lord Rosser (Lab)]

I wish to test the opinion of the House.

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[Lord Paddick (LD)]

My Lords, I want to briefly restate what I said in Committee. Not only is the Home Office seeking the power to remove an asylum seeker to any country while their claim is being considered but it is seeking to remove them to a country and then tell that country, “If you think they are a refugee, you take them; they’re not our problem any more”.

As the noble and learned Lord, Lord Etherton, has just said, according to Amnesty and Migrant Voice, offshoring by Australia effectively excluded legal, judicial, medical, humanitarian and media scrutiny. It has cost it over half a billion pounds a year, according to the British Red Cross, and failed to stop those seeking asylum, including by boat. Evidence to the Public Bill Committee in the other place from independent academics supports these conclusions. The UNHCR has

“voiced its profound concerns about such practices which have ‘caused extensive, unavoidable suffering for far too long’, left people “languishing in unacceptable circumstances’”

and denied them “common decency”.

I accept what the noble Lord, Lord Horam, says: the Government should be looking at every option, but surely they should be taking into consideration the evidence that I have just cited and considered any counterevidence. Then, having worked out its practicalities and decided whether it is to go ahead, they should bring forward legislation—not bring forward legislation and then decide whether they are going to use it.

Clause 28 and Schedule 3, as drafted, should not be part of the Bill. We support all the amendments in this group that seek to prevent anyone being removed from the UK while their asylum claim is being considered, particularly Amendment 35, to which I have added my name.

[Lord Rosser (Lab)]

Amendments 35 and 37 would remove the subsections of Clause 28 and Schedule 3 which allow for offshoring. That is, as we know, the power to export offshore any person in the UK who is seeking asylum without first considering their claim. Let us just repeat: we are talking here about asylum, not general immigration policy.

Clause 28 amends the Nationality, Immigration and Asylum Act 2002, which states that a person seeking asylum cannot be removed from the UK while their asylum claim is being processed. The Bill withdraws that right by allowing the transfer of any asylum seeker to any country listed by the Government. The Government have been somewhat reticent in telling us about the progress of any negotiations they are having with any other countries on this score. I think that is where we hear the term about the Government not wishing to give a running commentary; in other words, “We’re going to keep you in Parliament in the dark about what is going on”.

The Bill is silent on what, if any, legal obligations the UK would consider itself to have towards asylum seekers once their asylum claims have been dealt with. This issue was raised again by my noble friend Lady Lister of Burtersett and others. The United Nations High Commissioner for Refugees has commented that the provisions of the Bill allow the Government to externalise their obligations towards refugees and asylum seekers to other countries with only minimal human rights safeguards, an issue to which my noble friend Lord Cashman referred. The only thing the Government have said is that the model the Home Office intends to proceed with is

“one where individuals would be processed as part of the asylum system of the country that we had an agreement with, rather than people being offshore and processed as part of our asylum system.”

It is not just offshoring—it is also treating and dealing with people under another country’s asylum system rather than ours.

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[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I spoke at some length on the legal aspects of this group of clauses in Committee and, having had the advantage of being able to indicate an overall view of them in the newspapers earlier in the week, I really do not want to try the patience of the House, and I certainly do not want to weaken rather than strengthen the number of compelling arguments that have already been heard on them in the past few minutes.

However, they are such objectionable clauses that I cannot simply remain silent. I do not criticise the Minister for this, I am a great admirer of his, but on Monday, at 5.49 pm, in the middle of the debate, we finally got a seven-page letter that sought to argue—if only I were still a judge and could deal with the arguments conclusively by rejecting them—the Government’s case for redefining the requirements of the convention.

When we come to Clause 31, the Minister, very fairly, recognises that it would overturn 25 years—a quarter of a century—of settled jurisprudence of the clearest authorities in this country. That is how we have been dealing with it for 25 years. He does not say that it was a wrong approach to the convention; all he argues—as I say, I do not accept it—is that what they are doing provides another possible interpretation of the convention. Is this really the moment at which to reject our established jurisprudence and substitute for it what may or may not—I would say not—be an arguable alternative view of the whole of this.

Clause 31 rejects what has been accepted as the holistic approach: you look at fundamental question arising under Article 1(A) of the convention in the round, you take all circumstances into consideration and you apply the standard of proof of reasonable likelihood—because heaven knows that is the standard which you should be using. You do not carve it up and create endless difficulties, and then say, “Well, actually, part of it has got to be on the balance of probabilities”.

I have quoted this before, and I will end with this: Hugo Storey, a recently retired judge of the Upper Tribunal who has spent his life dealing with these sorts of cases and is the immediate past president of the International Association of Refugee and Migration Judges, said that this clause would produce prodigious litigation and endless problems, and that it is not compliant with the way that the UNHCR wants Clause 31 to be applied. I will not go into the arguments on Clauses 32, 34 and 36—they are all objectionable, for the reasons already given. We really must vote down as many of these as we can.

[Lord Rosser (Lab)]

My Lords, I will be very brief. I wish to say that we agree with the amendments in this group, which seek to address the issue that the Bill is seeking to change existing, long-standing definitions and, frankly, make things worse and harder for many of those who would be involved in, for example, seeking asylum. We support the intention of these amendments, and I will leave it at that.

Nationality and Borders Bill

Lord Rosser Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, to assist the House to move swiftly on to votes, we on these Benches will try to restrict ourselves to one speaker who will speak for us all, unless we are provoked by subsequent contributions. I say to the noble Lord, Lord Cormack, that it is rather unfair to the Minister—particularly as he is a new Minister—to ask him to deviate from his script. However, we agree with my noble friend Lady Ludford and with all other noble Lords.

[Lord Rosser (Lab)]

My Lords, my noble friend Lady Lister of Burtersett has set out the background to and purpose of this amendment. As we know, currently only those born on the islands and the first generation born in exile have the right to British Overseas Territories citizenship and, therefore, to British citizenship. As a result, families have been broken up and communities divided. Some members have access to citizenship rights while others do not.

In the Commons, as has already been commented on, the Government accepted, on 4 November last year during the Committee stage of the Bill, that the Chagossians presented a unique case. By Report Stage in the following month, however, the Government seem to have decided that the Chagossians were no longer a unique case, because going down the road proposed,

“would undermine a long-standing principle of British nationality law … under which nationality or entitlement to nationality is not passed on to the second and subsequent generations born and settled outside the UK and its territories”.—[Official Report, Commons, 7/12/21; col. 258.]

The reason that the small number of Chagossians in question do not meet this condition is because they are descended from people who were evicted against their will from a British overseas territory. That is why they are unique, as the Government have already conceded. They did not leave of their own free will to settle elsewhere: they were kicked out—forcibly evicted. There would be no precedent set by agreeing to this amendment. In effect, the Government are using, in support of their case to deny these Chagossians the right to British citizenship, the cause of the very injustice which this amendment seeks to address. We support this amendment, and it would appear that we are far from the only ones in this House to do so.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I also thank the noble Baroness, Lady Lister, for meeting my noble friend Lady Williams last week and for the opportunity to hear further about the issues impacting the Chagossian community. As has been said previously, both in Committee and when my noble friend met the noble Baroness, Lady Lister, last week, and as noted by my noble friend Lady Altmann, the Government empathise and sympathise with the Chagossians about how they were treated in the 1960s and 1970s.

It is, however, important to clarify who this amendment seeks to assist. It is not those Chagossians who were of the generations born on the British Indian Ocean Territory, as they have always been British nationals and have been automatically considered both British Overseas Territories citizens and British citizens since 2002. Similarly, it is not their children, the first generation of Chagossians born outside of British territory, who are also both automatically British Overseas Territories citizens and British citizens. It is also not those in the first generation of Chagossians born outside of British territory, who, as the Chagossian community highlights, have missed out on rights to British nationality due to historical legislative unfairness, and this Bill already seeks to rectify that issue.

This amendment is limited to those in the second and successive generations of Chagossians born outside of British territory who, like all children of British nationals by descent, face a different route to British nationality. For this generation, if they wish to acquire British nationality, it is right that they must establish a close, continuing connection with either the UK or a British overseas territory by lawfully residing and settling there, although I recognise that since the 1970s, it has not been possible to establish such a link to the British Indian Ocean Territory. This must be in line with either the UK’s or an overseas territory’s Immigration Rules. This has also been the case with Hong Kong British Nationals Overseas, who do not have a right of abode in British territory and must complete a period of residence in the UK before acquiring the permanent residence status that is required in order to naturalise as a British citizen.

The points raised by the descendants of Chagossians, who are members of the second generation born outside British territory and who are now seeking to settle in the UK under the Immigration Rules, are often very complex. As the Minister for Safe and Legal Migration has stated in the House of Commons, the Home Office is keen to consider what more we could do to support those families seeking to settle here under the current system.

The Home Office is actively engaging with the Chagossian community to identify practical proposals that would support the second generation born outside British territory in navigating the system. In addition, the Home Office is discussing with the FCDO how the £40 million Chagos support fund, referenced by the noble Baroness, Lady Lister, could be used to deliver further support for Chagossians seeking to settle here under the Immigration Rules. Those discussions are current and ongoing, and I had some this morning.

As the Government have consistently stated, allowing entitlements to—

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[Lord Paddick (LD)]

My Lords, I am glad that the noble Lord, Lord Russell of Liverpool, has reached agreement with the Government. I wish I could say the same.

I will speak to Amendment 21 to Clause 10, which requires the Secretary of State to be satisfied that a child aged between five and 17 cannot reasonably acquire another nationality in order to be registered under the stateless child provisions. The Government allege that parents were deliberately not registering the birth of their children and acquiring citizenship of the parents’ home country to wrongly claim British citizenship, by falsely claiming their children were stateless. We believe this clause should be taken out of the Bill.

In Committee the Minister, the noble Baroness, Lady Williams, provided, at column 548, figures of five cases of this route being used in 2010, which peaked at 1,775 cases in 2018. The Minister concluded “I rest my case”, but this raised further questions: for example, were those 1,775 cases in 2018 the number of stateless children born in the UK who were granted British citizenship in total, legitimately or otherwise, or the number where parents had deliberately chosen not to register their child’s birth to take advantage of the system? The Minister assumed it was the latter but said that she would write, and she did so on Friday.

In Committee, I specifically asked the noble Baroness whether the 1,700 odd cases in 2017 that she referred to were the total number of stateless children granted UK citizenship, or the number of cases of deliberate abuse of the system that Clause 10 purports to tackle. The Minister replied:

“I assume … the latter, but I will write to the noble Lord with the details of the figures I have here”.—[Official Report, 27/1/22; col. 550.]


However, when the Minister wrote, the figures in the letter do not equate to those she gave from the Dispatch Box. Neither is there an answer to the question: of those cases, how many were a deliberate—or even a suspected—case of abuse of the system?

The letter goes on to talk about the sampling of over 200 stateless child applications received between 2015-2021, which on my calculations is about 1% of the applications received. It goes on to say that, in 96% of the sample, the parents were Indian or Sri Lankan and then:

“90% of Indian and Sri Lankan parents had been able to take steps to contact the High Commission to obtain a letter to show their child was in fact not a citizen of that country”


and, in brackets:

“(We do not have data on how many actually attempted to register the birth)”.





In summary, we have numbers in the letter that appear to be at odds with what the Minister said at the Dispatch Box, we have a sample of only 1% of all applications and we do not know how that sample was selected. In the sample, in 90% of cases the relevant high commission confirmed the child was stateless and the Government have no data to show whether parents attempted to register the birth at the time. Despite this, the letter concludes:

“This demonstrates a clear and conscious decision by the parents not to acquire a nationality for their child for at least 5 years”.


That conclusion cannot possibly, in good faith, be drawn from the facts, whichever sets of facts presented by the Government that the House chooses to believe—either the facts the Minister gave from the Dispatch Box or the alternative facts contained in the all-Peers letter.

If the Government cannot now determine how many cases are genuine and how many are the result of attempting to inappropriately acquire British citizenship, on what basis will the Secretary of State exercise her powers under Clause 10 to decide whether the child in question is able to acquire another nationality? Specifically, if, as in 90% of cases in the sample, the relevant high commission confirms the child is stateless, on what basis will the Home Secretary decide not to believe the high commission, decide that the child could acquire the relevant nationality and deny the child British citizenship? What happens to the child denied nationality by the relevant high commission and by the Secretary of State?

If, as the Government suggest, this route is being used inappropriately by parents to acquire British citizenship for themselves, the Government should bring forward legislation to prevent parents acquiring British citizenship through their children by this route, rather than making innocent children, born in the UK, stateless. I was hoping the Minister would write in good time, with a clear and unambiguous answer to the questions I put to her in Committee on 27 January. She did not and she has not.

I am reluctantly left with two options: either the Minister addresses the apparent discrepancies and presents the House with a clear case for Clause 10 now or he agrees to take this away and address our concerns at Third Reading—otherwise I will be forced to conclude that the case is not made for Clause 10 and will divide the House. We cannot leave UK-born children stateless at the whim of the Home Secretary. Clause 10 should be taken out of the Bill.

[Lord Rosser (Lab)]

My Lords, I will not say anything on the amendment addressed by the noble Lord, Lord Russell of Liverpool, in view of what he has indicated about the progress that has been made between Committee and Report, although of course we will listen very closely to what the Minister has to say and indeed read what is in the Minister’s letter, which I think is what the noble Lord, Lord Russell of Liverpool, referred to.

As has been said, Clause 10 is intended to disentitle stateless children in the UK from their statutory right to British citizenship. Under our international obligations we have safeguards that mean that a child who was born in the UK and has always been stateless can acquire British citizenship after five years of residing here. Through Clause 10 the Government propose to restrict and amend that obligation. Clause 10 requires the Secretary of State to be satisfied a child was unable to acquire another nationality before being permitted to register as a British citizen. That, of course, creates an additional—and one would probably feel unjustified—hurdle to stateless children’s registration as British citizens which could be difficult for a child or those acting on their behalf to prove.

There is also the issue that the uncertainty created by Clause 10 could be highly damaging to a child’s personal development and their feelings of security and belonging, due to this exclusion and potential alienation being inflicted in their formative years. Indeed, the question was asked in Committee: how can this be in the best interests of the child?

The noble Lord, Lord Paddick, made reference to the figures which were given by the Government in their response. He also referred to the question which was asked as to whether the figure of 1,175 was the number of stateless children born in the UK who were granted British citizenship, or whether it was the number of cases where parents deliberately chose not to register their child’s birth in order to take advantage of the system. The noble Lord, Lord Paddick, referred to the letter that was received on behalf of the Government, and to the apparent discrepancies between what was said in Committee and the figures which appear in the letter.

I wait with interest to hear the response of the Government, because we, too, asked the question about what the case for Clause 10 was. I think I am right in saying—I recall it being said—that the Government felt that the figures that they gave at Committee were a fairly conclusive argument in favour of abuse of the system, and therefore that this was the case for Clause 10. On the basis of the letter which has been received, and the comments which have been made by the noble Lord, Lord Paddick, there is some doubt as to whether the case has been made.

The noble Lord has asked a number of questions and asked for a number of assurances. The answers he receives will clearly influence the decision he then makes in respect of Clause 10 standing part, and will influence what we, as the Official Opposition, do if the matter is put to a vote.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, although at first glance it would seem reasonable for the Home Office not to have to give notice to a terrorist overseas that they were being deprived of their British citizenship, it of course means that there is no effective right to appeal, as the subject would be unaware of the decision. We have also seen cases where the Home Office could have given notice, even to the last known address or by email, and chose not to. The increase in the use of this power needs to be reversed.

The amendments proposed by the noble Lord, Lord Anderson of Ipswich, seek to introduce a range of judicial oversights, would remove the subjective element of the decision and tighten the grounds on which a deprivation of citizenship order may be made without notice to the person concerned. Others would strengthen the test for making such a decision; ensure, if the person concerned contacts the Home Office, that he is told what has happened and that he has a right of appeal; and allow the Special Immigration Appeals Tribunal to oversee such decisions. Any time limit on appeal would start when the subject is notified.

I understand that a government Minister would have signed these amendments from the noble Lord, Lord Anderson, had they not been out of time—the deadline for tabling government amendments being several days before that for other amendments. I pay tribute to the noble Lord, Lord Anderson, for the time, effort and ingenuity he has brought to bear in bringing forward such a comprehensive suite of amendments that could arguably halt, if not throw into reverse, the current practice by the Home Office increasingly to use this power to deprive citizenship without notice. We wholeheartedly support these amendments.

However, were the House to divide on taking Clause 9 out of the Bill, we would, along with the right reverend Prelate the Bishop of Chelmsford, support that Division. At the end of the day, the Government should be taking ownership of the actions of British citizens, including terrorists overseas, ensuring, wherever possible, that they are extradited to the UK to stand trial, rather than depriving them of British citizenship, preventing them returning to the UK, and making them some other country’s problem, whether with notice or not. However, while therefore agreeing with much of what the noble Baroness, Lady Bennett of Manor Castle, has said, we are unable to go so far as to support her amendment, as there could be exceptional cases where, as a last resort, citizenship should be removed.

[Lord Rosser (Lab)]

I think I am right in saying that until the noble Lord, Lord Paddick, spoke, all those speakers who had spoken against Clause 9 were noble Baronesses. I am not sure what the significance of that is, and I do not say that in any wrong way; I think it is a great credit to them. Like the noble Lord, Lord Paddick, I hope they will forgive me for intruding on their space.

Although we appreciate that the amendments tabled by the noble Lord, Lord Anderson of Ipswich, are certainly an improvement on Clause 9—I, too, would like to express my thanks to the noble Lord for all the work I know he has put in—as it stands, we do not feel the case has been made by the Government for why Clause 9, and deprivation of nationality without prior notice to the individual concerned, are actually necessary. That is what we are talking about: not whether nationality should be removed but whether it should be possible for the Secretary of State to remove it without prior notice.

Currently, under the British Nationality Act 1981, an individual must be notified if they are to be deprived of their citizenship. So what is the problem when, for example, the present rules already allow for citizenship deprivation letters to be delivered to an individual’s last known address, or to a parent, or to a parent’s last known address? I say that against the background that the Government have already said there have been no cases where the requirement to give notice has stopped—prior to the recent High Court decision—a deprivation of citizenship order coming into being. It is also against a background where the number of people deprived of their citizenship has risen considerably over the last 12 years—an upward trend with a peak, I think, in 2017.

One thing we can be sure of is that if the Government have the powers under Clause 9, even with the amendments of the noble Lord, Lord Anderson of Ipswich, we will see deprivation of citizenship orders being made without prior notice, because if it is not the Government’s intention to take advantage of the powers to deprive a person of their citizenship without prior notice, why are they seeking them? Against that scenario, we need to be satisfied that there is a real and overriding necessity for this additional power now, when it has not been deemed necessary before, beyond it being perhaps more convenient or helpful on occasions not to have to go through the procedure of giving prior notice to the individual concerned. The lack of a compelling and meaningful government response on that point, and there having been no cases where the requirement to give notice has stopped the deprivation of citizenship order coming into being, is significant.

If a proven national security need does arise for the power not to have to give prior notice of a deprivation of citizenship notice coming into being, the Government can get such necessary legislation through Parliament, as we know, with remarkable speed. In the absence of such a case being made for this power—and the lack of it clearly has not caused a serious difficulty until now—we should be wary of agreeing to Clause 9, even as amended, remaining in the Bill.

I suggest that the situation has not been helped by finding out from information in the Court of Appeal decision that in the D4 case the Home Secretary

“argued that notification had been given to D4 … by simply placing a note on her Home Office file, relying on regulations introduced without parliamentary approval.”

That ought to make us very wary about giving the Secretary of State and the Home Office the additional powers in Clause 9, now that we know how existing statutory powers and requirements on notification have been interpreted and implemented in the D4 case.

The consequences of the clause are likely to be felt most—but certainly not exclusively, as the noble Baroness, Lady Mobarik, said—by those from ethnic minority backgrounds. It is no surprise that it is in this area that the Bill, particularly Clause 9, has caused most concern about how the new powers might be applied and interpreted and what the evidence is that they are needed now and have not been needed before.

It is unlawful to deprive someone of their citizenship and leave them stateless. Even so, the Home Office is still on record that British citizenship

“is a privilege, not a right”.

Yet without citizenship people do not have rights, and we are talking about significant rights. It has been estimated that nearly 6 million people in England and Wales could be affected, and that under this proposal two in five British citizens from an ethnic minority background are eligible to be deprived of their citizenship without being told, since they have, or may have, other citizenships available to them—I think that was the basis of the comment about two classes of citizenship—compared with one in 20 characterised as white. That is a sobering consideration for the Government, or should be, when looking at the merits or demerits of Clause 9, not least in the light of how the Secretary of State and the Home Office in the D4 case interpreted and implemented the requirement to give prior notice under the law as it exists at present. What would be tried if Clause 9, even as amended by the amendments by the noble Lord, Lord Anderson, gave the power not to have to give prior notice?

The right reverend Prelate the Bishop of Chelmsford raised the issue of trust, or rather the lack of it, among society groups. The Government ought to reflect very carefully on that in considering whether Clause 9, even as amended, should remain in the Bill. I have to say that as far as we are concerned the case has not been made for Clause 9, even as amended, to remain in the Bill, and we shall certainly be looking for an opportunity to vote against it.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate, especially the noble Lord, Lord Anderson, who has tabled these amendments; I am very grateful for his expertise in this matter. I also acknowledge Amendment 20, tabled by the noble Baroness, Lady D’Souza, and Amendment 22, tabled by the noble Baroness, Lady Bennett of Manor Castle.

The House will recall that we debated this matter at length in Committee. I say now, as I said then, that inaccurate and irresponsible media reporting continues to fuel fear and concern about how Clause 9 is to operate. I will repeat what I said then, starting with my noble friend Lady Verma: the deprivation power itself is not altered. Clause 9 does not alter the reasons why a person is to be deprived of British citizenship and we are not stripping millions of their citizenship.

To answer the noble Baroness, Lady D’Souza, and others, Clause 9 does not target dual nationals, those from ethnic minorities or particular faiths, or indeed women and girls; there is no secret decision-making, and law-abiding people have nothing to fear from Clause 9. It is simply about the mechanics of how a deprivation decision are conveyed to the individual concerned.

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[Viscount Hailsham (Con)]

My Lords, those who heard the Minister outline the position of the Government earlier today with regard to the plight of Ukrainians must have been dismayed by his response. None the less, I make no personal criticism of him at all.

Some of us have in mind the cavalier attitude of Mr Johnson to treaties that he recently signed, such as the Northern Ireland protocol. When I consider many of the suggestions which come out of the Home Office as to how to deter migrants from coming to this country, I have no confidence that this Government will always comply with the letter—far less the spirit—of the convention. I do not suppose that the new clause proposed by Amendment 24 will be a complete remedy. However, it is a very useful statement of an important principle, and I shall vote for it.

[Lord Rosser (Lab)]

Not surprisingly, there is nothing I could add to what the noble and learned Lord, Lord Judge, has said. We shall certainly be supporting this amendment if it ends up being put to a vote.

[Baroness Hamwee (LD)]

My Lords, from these Benches, I told the noble and learned Lord that we will be supporting him. He said that that was the right answer.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

With the greatest respect to the noble Lord, under the rules of Report stage, one is allowed to speak only once during the debate.

[Lord Rosser (Lab)]

My Lords, as has been said, Clause 11 is about differential treatment of recognised refugees. There is the distinction that the noble Lord, Lord Paddick, referred to between refugees and immigration generally. We believe that Clause 11 contravenes the 1951 refugee convention: it sets a dangerous precedent by creating a two-tier system—group 1 refugees and group 2 refugees—and, frankly, it is also inhumane.

Under the Bill, the Home Secretary will be given sweeping powers to decide asylum cases based on how someone arrives in this country and their mode of transport, not on the strength of their claim, contrary to the 1951 refugee convention, of which Britain was a founding member. The different ways those two groups could be treated is not limited in any way by the Bill, although Clause 11 provides examples: those who travel via a third country, who do not have documents or who did not claim asylum immediately will routinely be designated as group 2 refugees.

Refugees and Asylum Seekers

Lord Rosser Excerpts

Monday 28th February 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

The crisis is about 72 hours old, so I cannot say. I really do not know the answer so I will not pretend, but I am sure that, as the hours and days go on, the Government will have in place a system for helping refugees here and, do not forget, back in their home country. Ukrainians want to go back to Ukraine, and the best thing we can do for the whole global effort is to ensure that the war in Ukraine comes to an abrupt end.

[Lord Rosser (Lab)]

What did the Government mean by the assurance that I believe was given to my noble friend Lady Chakrabarti? The assurance given in relation to Ukraine was that, whatever the Government did, it would be aligned with the refugee convention—I think those were the words. Is that aligned with the refugee convention in the same way the Government think the Nationality and Borders Bill is aligned with the refugee convention?

[Baroness Williams of Trafford (Con)]

The Nationality and Borders Bill is aligned with the refugee convention.

Nationality and Borders Bill

Lord Rosser Excerpts

Lords Hansard - Part 2 & Report stage
Monday 28th February 2022 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly to offer Green support for this amendment and to address one specific point and one specific question. The right reverend Prelate, in introducing this, set out how little we know about what is proposed of these accommodation centres, and how much we know of their horrors. In Committee, the Minister and I discussed a particular horror with which I had personal contact during the Covid pandemic.

I also note that there is a continuing situation where the High Court ruled that people in hotels and other accommodation are entitled to £8 a week to meet some of their basic needs. This includes being able to afford a bus fare to attend an interview, or to buy some basic hygiene products. Looking at the list of people who the right reverend Prelate has included in this amendment, it is worth a question here. Imagine being a parent of a child and not ever being able to buy any sort of treat for your child. If the child really wanted some little piece of food, the parent would not be able to buy it. Instead, they would get only what is provided in the three meals a day in the canteen.

I know that we are still waiting for a description of what these accommodation centres are like. Can the Minister confirm, following the High Court ruling, that there will be at least a very small basic payment for people in the accommodation centres so that they can have some kind of choice and some kind of life?

[Lord Rosser (Lab)]

My Lords, I will certainly wait with interest to hear the response that the right reverend Prelate the Bishop of Durham gets to this amendment, because, if I understood him correctly, he said that it is the same amendment he tabled before. I understand that he asked for information and assurances about accommodation centres in Committee, and it is because he did not get them either in Committee or since then—he has had nothing in writing; presumably he asked the questions quite clearly in Committee about what he wanted—that he has had to table this amendment today, and will table it again, seeking to exclude vulnerable groups from the accommodation centres.

I hope that in their response the Government will explain why it has been so difficult to give the right reverend Prelate the answers to the questions he raised last time seeking information and assurances in respect of these accommodation centres. I do not understand what the difficulty can be since, presumably, in putting forward that there will be accommodation centres, the Government have some idea of what they will and will not provide and what they will and will not be like, and are in a position to give assurances when they are sought.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank noble Lords who have spoken to this amendment. I just say from the outset that the Bill does not actually create accommodation centres—that was done back in 2005—but when we have more detail on the accommodation centres, I will be very happy to provide it to the right reverend Prelate, including any detail about design.

On the question of how long someone might stay there, the usual time is about six months. I agree with the noble Baroness, Lady Hamwee, that they have to be humane, welcoming environments.

On the question of who we might accommodate in the centres, as I said before, we will accommodate people only after an individual assessment. There are no current plans to use the centres to house families beyond this. The centres will be used to accommodate only those who require support because they would otherwise be destitute, so those who obtain accommodation with friends or family are not affected by the measure. It is to prevent people becoming destitute.

The provision has nothing to do with unaccompanied minors; it is about adults in the asylum system and their dependants who are accommodated by the Home Office under the powers in the Immigration Act. Unaccompanied minors are not accommodated under these powers.

On the point about certain individuals not being suitable for these centres, there are no plans to accommodate in this type of accommodation asylum seekers and failed asylum seekers who are not destitute. As I have said, those who can obtain accommodation with friends and family will be unaffected. Individuals will have opportunities to disclose information as supporting evidence as to why they should not be housed in accommodation centres, and we do not have current plans to use centres to accommodate those with dependent children.

I may have said this before, and the noble Baroness, Lady Lister, has just mentioned it: it is not possible to completely rule out placing those with children in accommodation centres in the future, because if there are no available flats or houses to house them in, it might be a better option for them, depending on their situation, and certainly better than using hotels.

On whether they are detention centres, the answer is no. I do not think the noble Baroness, Lady Hamwee, was asking whether they were detention centres; she was making the point that they are not detention centres, and that is correct: people are free to move about. Individuals applying for support because they are destitute will naturally be expected to live there because they have nowhere else, but, as I have said, they can leave the centres at any time they wish because they have obtained alternative accommodation.

I had just asked a question of the Box about payment, and I am going to double-check whether I have the answer. Here it is: facilities at the accommodation include catering, therefore individuals will not require cash for food during their stay, but cash might be provided for other essential items not provided in kind. I hope that with that, the right reverend Prelate will be happy to withdraw his amendment.

Nationality and Borders Bill

Lord Rosser Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Earl Attlee (Con)]

My Lord, I strongly support the basic thrust of Amendment 183 in the name of the noble Lord, Lord Wallace of Saltaire. I do so having regard to the negative effects of the system of tier 1 visas, both in our own country and overseas. The first undesirable effect of this dirty money is on the economy of London; in particular, the cost of housing being pushed up to unaffordable levels by foreign so-called businessmen seeking secure investments, as explained by the noble Lord, Lord Wallace. My noble friend Lord Faulks identified a lack of progress by the Government in this area.

I accept that there may be some business opportunities in meeting the demand and providing both professional and artisan services to tier 1 investors. Personally, I would not want to earn my living from dirty money, in effect stolen from people of overseas countries. The noble Lord, Lord Wallace, explained this with his usual skill. Not only do some of these tier 1 investors illegally suck money and assets out of their own country to enjoy in ours but they take full advantage of our well-developed system of justice and the rule of law—JROL. This means that they can keep their assets secure and also enjoy a reliable means of passing them on to their offspring. Of course, they have no incentive to seek to implement any decent form of JROL in their own country because it is not in their interests to do so. The lack of JROL and the negative effects of corruption mean that countries such as Russia, and many developing countries, will never be able to achieve their full economic potential.

For instance, defence equipment apart, I cannot think of any manufactured product that comes from Russia. No wonder it has an economy the size of Italy’s, despite its natural wealth, larger, if declining, population, and vast space. It is not for us to interfere with the internal arrangements of other sovereign states, but if we denied oligarchs, the super-rich and despots of countries without JROL the safety and advantages of a safe landing and base in UK and other similar countries, they might be more inclined to seek to put their own countries in order. This would have enormous economic benefits and other benefits for the people of those countries.

I turn to the problem of Ukraine. It is clear that any invasion by Russia will result in severe sanctions against Putin’s regime, including Russian tier 1 investors in the UK who are judged to be close to Putin. I am confident that the Government are planning such potential sanctions as we speak, although the likely targets will already have taken precautionary action. However, if our worst fears are realised, we should go much further and hit all Russian tier 1 investors, whether they are President Putin’s friend or foe. That way, they might be more inclined to get off their posteriors and put pressure on Putin and maybe even think about improving JROL and press freedom in Russia. Furthermore, this course of action would not adversely affect the inhabitants of Russia.

We cannot continue to allow filthy, dirty money to come into the UK via the tier 1 investor visa route, because it pollutes our economy, damages the economies of other countries, and seriously erodes our soft power position.

[Lord Rosser (Lab)]

Amendment 174 would return rights to people in the UK who are on the overseas domestic workers visa—primarily, the right to change their employer and renew their visa for a period of not less than 12 months. The then coalition Government changed the visa regime in April 2012, so that workers and their immigration status are tied to their original employer, and their visa cannot be renewed past six months. That has caused real concern that the working people involved are tied into situations of abuse and slavery. The cross-party Joint Committee on the Draft Modern Slavery Bill, as it then was, said that the changes to the regime had

“unintentionally strengthened the hand of the slave master against the victim of slavery.”

It concluded:

“Tying migrant domestic workers to their employer institutionalises their abuse; it is slavery, and is therefore incongruous with our aim to act decisively to protect the victims of modern slavery.”


In 2015, the independent Ewins review called for all overseas domestic workers to be given the right to change employer and apply for further leave to remain in the UK for up to 30 months. It found that the terms of the domestic worker visa were

“incompatible with the … protection of overseas domestic workers’ fundamental rights while in the UK”.

Unfortunately, the Government disagreed with the recommendation; instead, they made more limited changes to the Immigration Rules, with the effect that all domestic workers can change employer during their six-month visa, but only those who are found to be victims of trafficking or modern slavery can change employer and apply to stay for longer in the UK. The problems with this limited approach were set out in the Ewins report: they failed to provide an immediate escape route out of abuse; the six-month limit makes it difficult for people to find other employment; and the national referral mechanism requirement means that a person must have taken the step to report, and met an evidential burden to prove, that they are victim of slavery, which, frankly, many are too frightened to do. We certainly support the thrust of Amendment 174.

Amendment 181 would exempt international volunteers from paying the immigration health surcharge, and I await the Government’s response with interest. I would like to know what consideration the Government have given to extending the exemption, and have the Government met charities which have raised concerns about its effect on volunteering in particular sectors, especially social care?

Amendment 183, about which most has been said—with some feeling and fervour—would require the Government to suspend the tier 1 investor visa route, known as “golden visas”, until the review into those visas has been made public. In its 2020 Russia report, the Intelligence and Security Committee recommended that a key measure for

“disrupting the threat posed by illicit Russian financial activity”

is an

“overhaul of the Tier 1 (Investor) visa programme—there needs to be a more robust approach”.

In March 2018, the Government announced a review of golden visas issued between 2008 and 2015. This followed revelations that the Home Office and banks had made next to no diligence checks in that period. According to a freedom of information request in June 2021, the Home Office is reviewing 6,312 golden visas, half of all such visas ever issued, for a range of possible national security threats. Almost four years since the Government announced the review, and as has been said more than once this evening, the findings have not yet been reported.

Many of those who received visas during this period will have been eligible to apply for British citizenship over the past seven years, and it is surely essential that there is full transparency about the findings of the review, including: a detailed breakdown of how many visas have been revoked; how many cases have been referred to law enforcement; and how many applications for renewal or citizenship have been denied.

In the Commons last month, Stephen Kinnock MP asked the following question:

“Six months ago, the Government said that they were finalising their report into how more than 700 Russian millionaires were fast-tracked for British residency via their so-called golden visa scheme. Can the Foreign Secretary tell the House when that long-overdue report will be published?”


The Foreign Secretary’s reply was:

“We are reviewing the tier 1 visas that were granted before 5 April. I am sure the Home Secretary will have more to say about that in due course.”—[Official Report, Commons, 31/1/22; col. 60.]


Therefore, I ask the Minister, speaking on behalf of the Government: does the Home Secretary have “more to say” about this tonight? We are all waiting to hear why it has taken so long to produce this report. In the absence of a credible explanation, one can conclude only that there are some embarrassing reasons that have led the Government to delay producing this report.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

Between what the noble Lord has just outlined and what the noble Baroness, Lady Lister, has just said, that probably explains both ends of the system in different ways.

On visa extensions, although I fully support the noble Baroness’s determination to improve protections for migrant domestic workers, rewinding the clock and reinstating the features of a route that were deliberately removed almost a decade ago is not the answer—probably, in part, for some of the reasons that the noble Lord, Lord Green of Deddington, outlines.

The overseas domestic worker visa caters specifically for groups of visitors who by definition stay for short periods. That visa allows private domestic staff to accompany their employer where that employer enters the UK as a visitor and where they intend to leave together. Approximately 20,000 visas are issued every year on that basis, and the vast majority leave well within the validity of their visa.

The amendment seeks to reintroduce features of the route which were removed for good reason. We must not forget that abuse existed before 2012 and be mindful that allowing overseas domestic workers to stay could inadvertently create a fresh cohort of recruits for traffickers. We must avoid a route that could be used by criminals to entice victims to come to the UK.

Noble Lords have referred to the report, commissioned by the Government, by James Ewins QC, which, crucially, did not establish a direct link between the length of stay and the likelihood of exploitation. Years later, this picture remains. There is no greater risk if a domestic worker is here for two weeks or 12 months, so increasing the length of time that they can stay will not afford them greater protection from being exploited.

I think that the noble Baroness and I share the same objective of the delivery of a safe and appropriate system for a very vulnerable category of workers. However, for all the reasons that I have given, we do not agree on the means of achieving it.

I am aware of comparisons that have been made between those employed in the healthcare sector who are exempt from the health charge and those who come to the UK as volunteers. However, there are very clear and important distinctions between workers and volunteers on the charity worker visa. The route should not be used to fill gaps in the labour market, even on a temporary basis. To answer the question asked by the noble Lord, Lord Rosser, yes, we have been engaging with charities. The Government think that appropriate immigration concessions are already in place, which support volunteers on this route. The charity worker visa offers a low fee, compared to other work routes, and sponsors pay a lower licence fee, in recognition of their charitable status. While the charity worker route is the main route for volunteers, it is not the only way in which volunteers can be recruited to support the work of charities.

I note the concern of the noble Lord, Lord German, that the immigration health charge might deter volunteers from coming to the UK. Published figures indicate that, for the years immediately preceding the pandemic—clearly the years after that are very unusual—the number of charity visas granted remained broadly consistent. This indicates that volunteers are not being deterred by having to pay the health charge.

The NHS must continue to be properly funded and the immigration health charge plays an important role in that. It has generated almost £2 billion for the NHS since its inception, and it ensures that temporary migrants who come to the UK for more than six months make a direct contribution to the comprehensive range of NHS services available to them during their stay. Those who pay the charge can, from their point of arrival in the UK, use the NHS in broadly the same way as a permanent resident, without having to make any prior tax or national insurance contributions. For those reasons, I hope that the noble Lord, Lord German, will not press his amendment.

On Amendment 183, I hear noble Lords loud and clear. I recall the debate that my noble friend Lord Faulks and I had during the Criminal Finances Bill. I also completely acknowledge the point about those relying on funds that have been illegitimately acquired. It is because of those concerns that we have committed to a review of visas issued under the route between 2008 and 2015. We are finalising the review, if noble Lords can be patient, and we will publish it in due course—I knew there would be a sigh from behind me and in front of me when I said that.

[Lord Rosser (Lab)]

Four years is quite a long time to produce a report. Why has it taken four years to date and why are the Government still in a position where they cannot really give any proper indication of when it will be produced? “In due course” is the cop-out expression for a Government who do not really know.

[Baroness Williams of Trafford (Con)]

My Lords, I will have to think of a new phrase: perhaps “shortly”.

[Lord Rosser (Lab)]

Is it this year?

[Baroness Williams of Trafford (Con)]

Yes, I hope that it will be this year.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, the short point that my noble friend Lord Paddick wanted to make, as he generally does, in leaving out Clause 74(3) is that, again, this seems to conflate immigration and terrorism. It extends powers to question people about involvement in terrorism at the border and applies the powers to people being detained under a provision of the immigration Acts, and so on. The objection runs like a thread through the Bill, to so many points. Immigration and terrorism are not the same. Not all terrorists are immigrants. Terrorists who have succeeded in the UK have been British, and if the Government allow, in legislation, the bias implied by the conflation of these two, no wonder others display the same bias. I beg to move.

[Lord Rosser (Lab)]

This clause would extend the use of Schedule 7 to the Terrorism Act to people who have been detained under the immigration Acts and transported outside of a port or border area. Schedule 7 can be an important tool in the prevention of terrorism, but it has had a chequered past at times. It has been improved in recent years by the work of independent reviewers of terrorism legislation, two of whom we are now fortunate to have as Members of this House.

I have three or four questions for the Government on the provisions of Clause 74. Have the Government consulted on the extension of the power? Has the change been requested and, if so, by whom or by what body? Can the Minister give more detail on the scale of the problem this is designed to address? How many individuals are officers unable to stop and question under the current arrangements? How was the period of five days arrived at? For those who travel through conventional routes, does not the power have to be used pretty much immediately, in which case five days is a considerable extension? Finally, the powers apply provided an officer “believes” that the person arrived at sea, was apprehended within 24 hours of arrival, and it has been no more than five days since they were apprehended. What will that “belief” that the officer is required to have be based on? It would be helpful if the Government could give some responses to those questions.

[Lord Sharpe of Epsom (Con)]

I thank both Members of the Committee for their remarks. Schedule 7 examinations have been instrumental in securing evidence to convict terrorists, yielding intelligence to detect terrorist threats and supporting the disruption or deterrence of terrorist activity. Currently, officers may exercise Schedule 7 powers only when an individual is located within a port or border area as defined in the Act. Clause 74 will provide an added layer of protection to the existing processes in place for dealing with those who arrive irregularly by sea in the UK. I think that goes some way to answering the question of the noble Lord, Lord Rosser—they are arriving irregularly outside of ports. The Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, has stated:

“In principle, people arriving irregularly in the United Kingdom should be liable to counter-terrorism examination as much as those arriving at sea ports and airports.”


This clause ensures that, for those arriving irregularly by sea, such as via illegal channel crossings, this will continue be the case.

There are several reasons why those who engage in illegal channel crossings can be moved to a different location from their place of arrival very quickly after arriving. They can range from weight of numbers to the need to move the vulnerable or those in need of medical attention to more appropriate facilities. It is impractical and inhumane to keep large groups of people port side in order to give counterterrorism police an appropriate opportunity to exercise their current powers under Schedule 7.

I reassure noble Lords who tabled the amendment that this is by no means an attempt to treat all migrants arriving in this manner as terrorists, or to stop and examine large numbers of people away from ports and borders. Schedule 7 is not designed and cannot be used as a universal screening mechanism, and Clause 74 has been deliberately drawn to provide an appropriate time window for counterterrorism police to exercise their powers under Schedule 7.

To remove the effect of Clause 74 would impact our ability to determine whether those who are entering the UK in this way are involved in terrorism, impacting our national security. It would continue a scenario where those who arrive in the UK by conventional means are subject to powers to determine involvement in terrorist activity, whereas those who have arrived irregularly by sea, and about whom we have very little documented information, may not be.

I cannot answer precisely who has been consulted on this, other than the Independent Reviewer of Terrorism Legislation, and obviously the counterterrorism police will have a keen interest in how this debate develops. To answer on the numbers, this concerns those arriving irregularly by sea, outside established ports, under the existing rules. I could not tell you how many there are. The other questions impinge on operational matters, on which I am not qualified to comment. I therefore ask the noble Baroness to withdraw the amendment.

Knife Crime

Lord Rosser Excerpts

Wednesday 9th February 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

If police forces decide to do such things as stop showing pictures of knives, that is entirely a matter for them. Of course, we support whatever works—sometimes showing pictures of knives increases the fear factor in getting involved in things such as knife crime—but it is down to local police forces.

[Lord Rosser (Lab)]

We share the concerns of the noble Lord, Lord Laming, about knife crime and the devastating effects it can have on young people in particular. The Minister mentioned violence reduction units, which bring together local partners to tackle violent crime by understanding its underlying causes, and by bringing additional funding. Violence reduction units have been introduced in 18 police force areas. When are they going to be extended to the remaining 25 police areas to support local multiagency work to tackle youth crime?

[Baroness Williams of Trafford (Con)]

I agree with the noble Lord that VRUs are a very valuable tool in early intervention. We have provided £35.5 million this year to fund them. They are commissioning a range of youth interventions, and I will keep the House updated as they become more widespread.

Nationality and Borders Bill

Lord Rosser Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Lord Paddick (LD)]

I am very grateful for the historic information that the noble Lord has provided. My understanding is that, as the years have gone on, the number of successful appeals has increased and the number of first-time decisions to reject application from refugees has gone down. While I do not deny that those might be the overall numbers going back to 2004, in saying that most applicants for refugee status are successful, we are basing it on the last few years—the current trend rather than the historic numbers the noble Lord refers to.

I am reminded of heavy-handed policing of football supporters in the 1980s. I remember a football fan saying to me, “If you treat us like animals, we’ll behave like animals”. Warehousing asylum seekers may be a short-term gain, but it is likely to create long-term problems.

[Lord Rosser (Lab)]

I too express my appreciation to my noble friend Lady Lister of Burtersett for the determination and commitment she has shown in pursuing not only this but so many other key issues about which she rightly feels very strongly. I repeat what the noble Baroness, Lady Neuberger, said: this clause and these amendments are about asylum seekers. In the Bill—a government document—Clause 12 is titled “Accommodation for asylum-seekers etc”. We are talking about asylum seekers, not illegal immigration, although I accept that there are those who make no distinction between the two. The other point I make at this stage is about the quite interesting exchange between my noble friend Lord Dubs and the noble Lord, Lord Green of Deddington. I think there was rough agreement—if not I am sure I will stand corrected—that the kind of numbers coming over in the back of a lorry are very similar to those coming over in small boats across the channel.

[Lord Green of Deddington (CB)]

To get the timescale on this, I say that 10 years ago it was 40,000 asylum seekers a year. That is roughly the number now—30,000 on the channel and 10,000 by other means. The difference, as I mentioned, is the potential in the channel for the numbers to go up very fast and make it even more difficult for the Home Office and local government.

[Lord Rosser (Lab)]

The potential is, of course, a matter of speculation. I note the point the noble Lord makes, but up to now there is agreement between him and my noble friend Lord Dubs that the numbers have been roughly the same.

[Lord Paddick (LD)]

I am sorry to interrupt the noble Lord, but my understanding is that the number of asylum claims a decade or more ago was something like double what it is now. We are talking not about similar numbers crossing the channel in boats compared to those in the past, but about half as many.

[Lord Rosser (Lab)]

The point I wanted to make was that, when people were coming over in the back of lorries—not all that long ago—they were largely unseen and the Government were not proposing the measures in the Bill. However, when similar numbers started to come over in small boats across the channel, with pictures of them landing on our shores regularly appearing on TV, it became a big political issue for the Home Secretary and the Government, following some rather rash promises they made to their supporters. Consequently, we now see the Bill, which frankly is an attempt to save the political skins of the Home Secretary and the Government. It really has nothing to do with properly trying to solve a problem. We ought to remember what is driving it—the political future of a Home Secretary and Government who made rash promises. Because people are coming over no longer in the backs of lorries, where you do not see them regularly on television every night, but in small boats across the channel, with pictures of them on television, it has become politically very awkward.

The amendments in this group are driven, as has been said, by serious concern over the Government’s track record on accommodation for asylum seekers, not least in connection with Napier barracks, and the provision in Clause 12 for creating asylum accommodation centres. It is worth repeating that last June a court judgment ruled that the accommodation at Napier barracks was inadequate, in that it did not meet the minimum standards required by the Immigration and Asylum Act 1999. Both the process for selecting people to be sent to Napier barracks and the process for monitoring its ongoing suitability while they were there were flawed and unlawful. From January 2021 the residents were given an order not to leave the site until they were permitted to do so. The claimants were unlawfully detained, under both common law and the European Convention on Human Rights.

The report on Napier of the Independent Chief Inspector of Borders and Immigration and Her Majesty’s Inspectorate of Prisons raised a number of serious concerns, including that the screening of potential residents for physical and mental health problems was “wholly inadequate”, with all of those interviewed reporting feeling depressed and one-third feeling suicidal, and that there was extremely poor communication with those accommodated at Napier. We have heard today from the right reverend Prelate the Bishop of Durham that Napier has improved, but it is fair to say that he also said that it is far from being as it should be. It is a legitimate question to ask why the Home Office allowed Napier barracks to get into the position where it required a court judgement, and why we should now accept that the same thing will not happen again.

Clause 12 gives the Government powers to house different groups of asylum seekers in undefined accommodation centres. It appears that these centres would involve congregated living in hostel-type accommodation—the type of accommodation which has been shown to be unsuitable to house people, many of them traumatised, in the asylum system for long periods. As others have said, this move away from housing in the community is likely to impede integration prospects and will surely make access to needed support and services more difficult. I simply ask the Government, and I hope that we get an answer in their response: is it now their policy to move away from housing in the community for asylum seekers?

The Explanatory Notes to the Bill say that the accommodation centres for those at different stages of their asylum claim, including those with “inadmissible” asylum claims, will

“increase efficiencies within the system and increase compliance”,

but no evidence is given to support that assertion. It would be helpful if the Government could provide that evidence in their response to this debate.

While the term accommodation centre is not defined—again, perhaps the Government will do so in their response —there is an implication that the Government are seeking to replicate the kind of inferior accommodation that we have seen at Napier. This more prison-like and isolated accommodation provides a very poor environment for engaging with asylum claims and is more likely to retraumatise extremely vulnerable people and hinder future integration.

As I understand it, last summer the Home Secretary visited the notorious reception centre on the Greek island of Samos, which campaigners have described as “prison-like” and “inhumane”. Is that what the Home Secretary seeks to emulate in her accommodation centres? The Government must know the answer, since I believe I am right in saying that initial submissions for the procurement of these accommodation centres were invited by the end of September last year. The contract is to be delivered in accordance with Part 2 of the Nationality, Immigration and Asylum Act 2002, and it stated, as I understand it, that it is for housing up to 8,000 people for periods of up to six months. Could the Government say in their response how accountability and standards will be maintained in such asylum accommodation when there is no public access to the contracts? How did the Government decide that commercial confidentiality should take priority over the public interest in knowing about the contracts and transparency?

Since April 2020, the Home Office has been using two large-scale accommodation centres for asylum-seeking men who have arrived in the UK by boat: Napier barracks in Kent and the Penally camp in Wales, which is now closed. A report by the All-Party Parliamentary Group on Immigration Detention noted that, although legally speaking these are not detention centres, they none the less replicate

“many of the features found in detained settings—including visible security measures, shared living quarters, reduced levels of privacy, and isolation from the wider community”.

Frankly, that seems wholly inappropriate. No doubt the Government in their response will wish to provide some reassurance on this point.

It would be helpful too if the Government could spell out what freedoms and rights will be restricted or diminished for the occupants in these accommodation centres, and what independent access will be allowed, and to whom, to these centres to ensure there is some regular accountability for conditions and standards.

Independent Office for Police Conduct

Lord Rosser Excerpts

Wednesday 2nd February 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

I agree with my noble friend: I also pay tribute to the recent work of the IOPC, much of which has been in the headlines in the last couple of days. We are not minded to initiate a public inquiry into either Midland or Conifer. It is important that the IOPC is an independent watchdog and essential for the public to have confidence in our model of policing.

[Lord Rosser (Lab)]

My Lords, the IOPC has just produced a damning report about misconduct by some Met police officers and the culture that it found. The IOPC says:

“We believe these incidents are not isolated or simply the behaviour of a few ‘bad apples’”,


and that officers who challenged or reported unacceptable behaviour were “harassed, humiliated and excluded.” There is clearly a major problem. An inquiry chaired by Dame Elish Angiolini has been ordered in the light of the kidnap and murder of Sarah Everard, and that has not been the only appalling incident involving police officers that has occurred. In the light of this latest damning IOPC report, will the Government now put the Angiolini inquiry on a statutory footing, with the ability to compel witnesses to attend and have documents produced, in order to provide backing and support for officers who want to blow the whistle on unacceptable behaviour and should not have to face harassment, humiliation and exclusion for doing so? Will the Government now also reconsider their position on regarding misogyny as a hate crime?

[Baroness Williams of Trafford (Con)]

My Lords, I join the noble Lord in expressing my absolute disgust at some of the IOPC’s reporting under Operation Hotton. It provides for very painful reading that members of the police could have said such offensive things in any environment. As I have said before, the Home Secretary can decide, in conjunction with the chairman, whether to put the Dame Elish Angiolini inquiry on a statutory footing if it is not meeting its terms of reference. We brought in the duty to co-operate last year, and police and organisations can find themselves sanctioned if they do not.

Surveillance Camera Code of Practice

Lord Rosser Excerpts

Wednesday 2nd February 2022 Lords Chamber

In concluding, I want to share the new workstream that we will have in our new strategic plan, which we hope will be laid before Parliament in the next couple of months. In that plan, we will be influencing UK regulatory frameworks to ensure that equality and human rights are embedded in the development and application of artificial intelligence and digital technology. That is a change from the past and a new innovation, and we intend to take it extremely seriously. We will take enforcement and other legal action, so that the use of AI in recruitment, in policing and in other employment practices does not bias decision-making or breach human rights. I look forward to the Minister’s response.

[Lord Rosser (Lab)]

My Lords, I first congratulate the noble Lord, Lord Clement-Jones, on securing this debate. Obviously, all who have spoken deserve a response to the points they have raised, but I am particularly interested in what the reply will be to the noble Baroness, Lady Falkner of Margravine, who asked who was and who was not consulted and why. The point she made there most certainly deserves a response from the Government.

The Surveillance Camera Code of Practice was first published in June 2013 under provisions in the Protection of Freedoms Act 2012. It provides guidance on the appropriate use of surveillance camera systems by local authorities and the police. Under the 2012 Act these bodies

“must have regard to the code when exercising any functions to which the code relates”.

As has been said, the Government laid an updated code before both Houses on 16 November last year and, as I understand it, the code came into effect on 12 January this year. The Explanatory Memorandum indicates that changes were made mainly to reflect developments since the code was first published, including changes introduced by legislation such as the Data Protection Act 2018 and those arising from a Court of Appeal judgment on police use of live facial recognition issued in August 2020, which was the Bridges v South Wales Police case.

Reporting the month before last, our Secondary Legislation Scrutiny Committee commented that the revised code reflects the Court of Appeal judgment

“by restricting the use of live facial recognition to places where the police have reasonable grounds to expect someone on a watchlist to be”

and added that the technology

“cannot be used for ‘fishing expeditions’”.

The committee continued:

“The Code now requires that if there is no suggested facial matches with the watchlist, the biometric data of members of the public filmed incidentally in the process should be deleted immediately. Because the technology is new, the revised Code also emphasises the need to monitor its compliance with the public sector equality duty to ensure that the software does not contain unacceptable bias. We note that a variety of regulators are mentioned in the Code and urge the authorities always to make clear to whom a person who objects to the surveillance can complain.”


As the regret Motion suggests, there is disagreement on the extent to which the code forms part of a sufficient legal and ethical framework to regulate police use of facial recognition technology, whether it is compatible with human rights—including the right to respect for private life—and whether it can discriminate against people with certain protected characteristics. Interpretations of the Court of Appeal judgement’s implications for the continued use of facial recognition technology differ too.

As has been said, the use of facial recognition is a growing part of our everyday lives—within our personal lives, by the private sector and now by the state. It can be a significant tool in tackling crime but comes with clear risks, which is why equally clear safeguards are needed. It appears that our safeguards and understanding of and frameworks for this spreading and developing technology are largely being built in a piecemeal way in response to court cases, legislation and different initiatives over its use, rather than strategic planning from the Government. Parliament—in particular MPs but also Members of this House—has been calling for an updated framework for facial technology for some years, but it appears that what will now apply has finally come about because of the ruling on the Bridges v South Wales Police case, rather than from a government initiative.

The police have history on the use of data, with a High Court ruling in 2012 saying that the police were unlawfully processing facial images of innocent people. I hope the Government can give an assurance in reply that all those photos and data have now been removed.

While a regularly updated framework of principles is required, as legislation alone will struggle to keep up with technology, can the Government in their response nevertheless give details of what legislation currently governs the use and trials of facial recognition technology, and the extent to which the legislation was passed before the technology really existed?

On the updates made to the code, it is imperative that the technology is used proportionately and as a necessity. What will be accepted as “reasonable grounds” for the police to expect a person to be at an event or location in order to prevent phishing exercises? As the Explanatory Memorandum states:

“The Court of Appeal found that there is a legal framework for its use, but that South Wales Police did not provide enough detail on the categories of people who could be on the watchlist, or the criteria for determining when to use it, and did not do enough to satisfy its public sector equality duty.”


Can the Government give some detail on how these issues have now been addressed?

A further area of concern is the apparent bias that can impact this technology, including that its use fails to properly recognise people from black and minority-ethnic backgrounds and women. That is surely a significant flaw in technology that is meant to recognise members of our population. We are told that the guidance now covers:

“The need to comply with the public sector equality duty on an ongoing basis through equality impact assessments, doing as much as they can to ensure the software does not contain unacceptable bias, and ensuring that there is rigorous oversight of the algorithm’s statistical accuracy and demographic performance.”


What does that look like in practice? What is being done to take account of these issues in the design of the software and in the datasets used for training for its use? What does ongoing monitoring of its use and outcomes look like? The Secondary Legislation Scrutiny Committee raised the question of who a person should direct a complaint to if they object to the use of the technology, and how that will be communicated.

We have previously called for a detailed review of the use of this technology, including the process that police forces should follow to put facial recognition tools in place; the operational use of the technology at force level, taking into account specific considerations around how data is retained and stored, regulated, monitored and overseen in practice, how it is deleted and its effectiveness in achieving operational objectives; the proportionality of the technology’s use to the problems it seeks to solve; the level and rank required for sign-off; the engagement with the public and an explanation of the technology’s use; and the use of technology by authorities and operators other than the police.

What plans do the Government have to look at this issue in the round, as the code provides only general principles and little operational information? The Government previously said that the College of Policing has completed consultation on national guidance which it is intended to publish early this year, and that the national guidance is “to address the gaps”. Presumably these are the gaps in forces’ current published policies. What issues will the national guidance cover, and will it cover the issues, with great clarity and in detail, which we think a detailed review of the use of this technology should include and which I have just set out? Unfortunately, the Explanatory Memorandum suggests that neither the College of Policing national guidelines nor the updated code will do so or indeed are intended to do so.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, for securing this debate and all who spoke in it. Let me clarify that when I referred to those who are interested and knowledgeable about LFR as “geeks”, it was meant as a compliment. Sometimes it is difficult to get people to be interested in some of the things that we do in the Home Office. I am also grateful to the noble Lord for putting on record his views on the revised code, which came into force on 12 January of this year. I understand that it was published in full, and there is more detail in accompanying documents, including the College of Policing guidance and ICO guidance.

As I think the noble Lord, Lord Clement-Jones, said, the code was established in 2013 during the coalition Government under PoFA—the Protection of Freedoms Act 2012—to provide guidance to local authorities and the police on the appropriate use of surveillance camera systems.

Surveillance in schools is not really for the surveillance camera code of practice. Private use, which the noble Lord also talked about, is of course a DCMS matter. I am not trying to pass the buck, but it is not unusual for people to get those mixed up. In fact, that goes to the heart of what the Government are trying to do—namely, to try to simplify the landscape, which is all too often far too complex.

The principles in the code enable the police and local authorities to operate surveillance cameras in a way that complies with the breadth of relevant law in this area. Because the code is principles-based rather than technology-specific, it has remained largely up to date despite the pace of technological advancement in this area. Therefore, the changes do not increase the scope of the code or, indeed, its intended impact.

There have been a number of legislative developments and a key court ruling since the code was first published, which noble Lords referred to. The reason for updating the code was to reflect those changes, while we also took the opportunity to make the text easier for users to follow at the same time.

The consultees were mainly among policing and commissioners, including the Information Commissioner’s Office. The Surveillance Camera Commissioner published the draft, so it was in the public domain, and civil society groups commented on it, including the NPCC.

--- Later in debate ---

I will finish by saying the police do have a duty to make use of technologies to keep the public safe, and the Government are committed to empowering them to do so while maintaining public trust. Updating the code to reflect the latest legal position is just one of the steps we are taking to achieve those important aims.

[Lord Rosser (Lab)]

Before the Minister sits down: is the issue of live facial recognition and its use by the police a matter for the police and crime commissioner to decide or for the chief constable to decide?

[Baroness Williams of Trafford (Con)]

It would usually be a matter for local forces in the context in which they are deploying it. In terms of the seniority of the officer who can authorise it, I do not know, actually. I just know it is a matter for local forces to decide when and for what purpose they are using it. But I can write to the noble Lord about that.

[Lord Rosser (Lab)]

I take it, since the noble Baroness did make a reference to democracy and democratic accountability, that surely, at the very least, since the police and crime commissioner is elected and accountable, it must be a decision for a police and crime commissioner, rather than a police constable who is not elected and not accountable in that way.

[Baroness Williams of Trafford (Con)]

The PCCs clearly have oversight of what their police forces are doing, and I would be most surprised if the PCC was removed from that sort of operational context.