Nationality and Borders Bill

Debate between Lord Rosser and Baroness Hamwee

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

[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.

Nationality and Borders Bill

Debate between Lord Rosser and Baroness Hamwee

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

[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.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Rosser and Baroness Hamwee

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 21st January 2021 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, of course, we do not intend to oppose the government amendments —the devolution settlement is to be respected. However, I have some questions, the answer to which at least one of which I can work out from the Minister’s introduction to the amendment. She has had my notes, so I will go through the points that occurred to me.

First, can the Government say anything about their assessment of the impact of what the Minister has just explained? In Committee, she referred to minimising the “immediate operational impact”. It appears to be acknowledged, therefore, that there is some impact. What happens if Scotland legislates differently? The Minister’s letter to noble Lords of 13 January explains one of the issues, which I take to be the major issue, about which the Scottish Government was concerned: an amendment to the limits to conduct that can be authorised; that is, whether specific listed crimes should be excluded. The House has debated that point and I am not seeking to reopen the matter.

In Committee, the Minister reminded us that national security and economic well-being are reserved, not devolved; she has just repeated that. In that case, could there be challenges—it seems to me that there could be—as to whether certain conduct is merely, if that is the right word, a crime? It is not merely a crime, but the House will understand that I am referring to a crime that does not fall within the other categories. The Minister also said that public authorities will continue to rely, in the immediate term, on the existing basis for an authorisation—which, I take it from what she said, is the non-statutory basis.

How, then, does Clause 8 work? That clause says that the Bill extends to Scotland and Northern Ireland, save that Acts of the Scottish Parliament are not amended. The Minister has introduced Amendment 7 —as well as Amendment 8—which amends Schedule 2, the list of consequential amendments. This provides that there may not be a criminal conduct authorisation if

“all or some of the conduct … is likely to take place in Scotland.”

If some of the conduct is in Scotland and the rest in England, Wales or Northern Ireland, does that mean there have to be parallel authorisations, one statutory and one non-statutory? Or do I understand from what the Minister said that the Government in England, Wales and Northern Ireland will proceed on the non-statutory basis so it will be aligned with the authorisation in Scotland? A criminal conduct authorisation prompted by an ordinary crime, if I can call it that, cannot extend across the border but, of course, the crime may well do so.

Finally, the Minister may or may not be able to say whether the issue is wider than the Bill. We will be in Committee next week on the Counter-Terrorism and Sentencing Bill and I gather from government amendments that there is an issue there—but is it an even wider issue on legislation? I hope the Minister can help with my questions, which I have tabled in order to understand how the Bill will operate in this circumstance.

[Lord Rosser (Lab) [V]]

I thank the Minister for her explanation of the purpose of these government amendments and for her letter of 13 January explaining the position in the light of the confirmation from the Scottish Government that they are unable to recommend consent for devolved provisions within the Bill. We understand why the Government have brought forward these amendments today and accept the need for them. Our key concern is whether the situation that has now been reached will have any adverse impact at all on national security and economic well-being, UK-wide, and it would be helpful if the Government could confirm, as I think the Minister has sought to indicate, that there will be no such adverse impact.

The letter from the Minister of 13 January states that the Scottish Government

“require further amendment to the Bill in relation to limits to the conduct which can be authorised under the Bill.”

As this House has now added those limits to the Bill, are the Government minded to change their stance on that issue and accept the amendment concerned?

Finally—I appreciate that this is a matter to which the Minister has also made reference—will the Government say what the impact will be, first in Scotland, to which she referred, and also in the UK as a whole, if the present legal basis for authorising criminal conduct changes, based on the outcome of the current, ongoing court case?

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Rosser and Baroness Hamwee

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, I am very glad that the noble Lord decided to probe these two provisions. I have seen the correspondence published by the three committees. I was struck when the noble and learned Lord, Lord Stewart, in responding to the previous group, referred to the code of practice having the force of law. I do not dispute that, but it is of course law that can be changed by government Ministers without coming to Parliament.

The point just made by the noble Lord, Lord Hodgson, about forum shopping is interesting. As he said, I have asked for assistance on the meaning of some terms during the passage of the Bill. I questioned what is envisaged by the terms “conduct” and “requirements”. I read both to restrict, rather than expand, the scope of what may be done. I would be grateful to have that confirmed or, if not, to understand why not. In short, we should not be expanding opportunities for criminal conduct authorisations without, at the very least, understanding exactly what we are doing.

[Lord Rosser (Lab) [V]]

First, I wish the noble Lord, Lord Hodgson of Astley Abbotts, well in his campaign against skeleton Bills, as that issue is getting worse, not better.

The Bill provides that the Secretary of State may, by order, prohibit the authorisation of certain conduct and impose extra requirements that must be satisfied before an authorisation can be given. As the noble Lord, Lord Hodgson, said, Amendments 57 and 74, in his name, would remove those provisions and, as he confirmed, their purpose is to probe the extent to which the operation of criminal conduct authorisations can be amended by regulation.

Earlier in Committee, the noble and learned Lord, Lord Stewart of Dirleton, stated that the order-making provisions in the Bill

“allow for additional requirements to be imposed before a criminal conduct authorisation may be granted, or for the authorisation of certain conduct to be prohibited.”

He continued:

“I assure the Committee that they can only be used to further strengthen the safeguards that are attached to the use of criminal conduct authorisations. They could not be used to remove any of the existing safeguards ... The requirements that can be imposed under these powers concern matters of practicality and detail, and therefore it is appropriate that they are contained in secondary legislation.”—[Official Report, 1/12/20; col. 676.]


When the noble and learned Lord said that the order-making powers could not be used to remove any of the existing safeguards, did the Government mean that the wording in the Bill would make it contrary to law to do that, or did they mean only that the intention was not to use the order-making powers to remove any of the existing safeguards? That, of course, is a very different thing, as intentions can change.

No doubt in their response the Government will address that point and give specific examples of the purposes or intentions for which these order-making powers to prohibit the authorisation of certain conduct and impose extra requirements that must be satisfied before an authorisation can be given would—and, equally, would not—be used by the Secretary of State.

--- Later in debate ---

[Baroness Hamwee (LD) [V]]

My Lords, the horse will be out of the stable again in January: refreshed, I hope. I am sure that the Minister will welcome the pause after the marathon she has had to undergo. I am not for a moment suggesting she is anything like a horse—I am sorry, perhaps I should not have followed that simile.

My noble friend Lord Paddick recently spoke to Amendment 79, and it is clear that several noble Lords have concerns in this area, so we will come back to it. Noble Lords clearly agree on the importance of evaluating what goes on and of transparency, as has already been mentioned. However, I cannot help thinking in the context of the precise formulation of this amendment of what the noble Baroness, Lady Manningham-Buller, talked about a week or two ago, to which my noble friend referred: the problem of the extent to which one can report in detail without endangering those who are protecting us and whom we, in turn, do not wish to endanger. I cannot help thinking that if a lot of the material listed in Amendment 75C were to be published, an awful lot of it might be redacted. However, I am with the noble Lord, Lord Hodgson, in spirit, and I think that his last point about material damage or civilian harm is an important one that we must not lose sight of. We still need to explore how best and to what extent we can achieve what is obviously troubling a number of us.

[Lord Rosser (Lab) [V]]

The purpose of the amendment moved by the noble Lord, Lord Hodgson of Astley Abbotts, is described as being to probe the adequacy of information provided to Parliament on criminal conduct authorisations and to probe the efficacy of the authorisations.

I think that this comes back to the issue of transparency. To be a little more particular, will we be told in advance, during the passage of the Bill, precisely what kind of information about criminal conduct authorisations will be provided to us and to the public by the Investigatory Powers Commissioner in the annual report or other reports? At the moment, I am not clear about what information will be provided and what it will cover, and whether it will give us a feel for what is happening over criminal conduct authorisations or whether we will be told that the information provided will be limited and that, on grounds of security, it cannot be disclosed.

I hope that, at least in their response either to this amendment or on Report, the Government will be prepared to spell out what information will and will not be provided so that we all know where we stand on this issue.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Rosser and Baroness Hamwee

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, Amendment 6 in the name of the noble Baroness, Lady Ritchie, and our amendment, are directed to the same issue; I can only think that I may have drafted ours before I had seen hers. RIPA allows for the use of CHIS outside the UK, and the noble Baroness, with her very particular perspective, must not be ignored. As has been said, that experience should inform all of what we are discussing.

Quite apart from the propriety and ethics, how would extraterritorial jurisdiction work in this case? We cannot legislate for what other countries regard as a crime or how decisions about whether to prosecute are taken. My noble friend Lord Thomas listed the offences where there is extraterritorial jurisdiction and where prosecutions can take place here. It struck me as I was listening to him reading them that they are very close to the crimes that noble Lords are seeking to take out of the scope of criminal authorisations, which we will come to later—except that I was interested to hear the reference to domestic abuse.

I had wondered whether minds in the Government had been directed to the military and intelligence services outside the UK on this issue; my noble friend also mentioned the Baha Mousa case. But this is not the Bill for that. As he said, we have other legislation that we will come to soon, when we will also no doubt be considering the issue of rendition. But to leave open any suggestion that anyone should have free rein anywhere in the world because they are acting on behalf of the state is certainly something we want to see quashed.

[Lord Rosser (Lab) [V]]

Amendment 7 in this group would ensure that criminal conduct authorisations are not covered by the provisions of Section 27(3) of the Regulation of Investigatory Powers Act 2000, which provides that:

“The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”


Amendment 9 in this group specifies that conduct outside of the United Kingdom may not be authorised under this Act and amends the Regulation of Investigatory Powers Act 2000 to similar effect as Amendment 7.

As far as I can see, the code of—[Inaudible]—covert operations occurring in UK embassies, military bases and detention facilities where the subject of investigation is a UK national or is likely to become the subject of criminal or civil proceedings in the UK, or if the operation is likely to affect a UK national or give rise to material likely to be used in evidence before a UK court.

The noble—[Inaudible.]

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Lord Rosser and Baroness Hamwee

Consideration of Commons amendments
Monday 9th November 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, as other noble Lords have said, safe routes are needed now. We know that people will not and cannot wait. And who can blame them?

I want to question the Minister about the review, particularly to seek an assurance about one aspect. Proposed new subsection (1) in the amendment refers to the review of ways in which protection claimants can enter the UK lawfully. This suggests that the review is to be limited to considering existing ways, when what is needed are proposals to enable safe mechanisms for family reunion without the current hurdles and restrictions. Siblings must be able to reunite and close family members—not only parents—able to sponsor entry without having to find fees or demonstrate that they have the means to look after the child.

I am concerned that there is no stated objective for the review; that seems to be missing. Also missing, as the right reverend Prelate has said, is a timetable for the completion of the review. The three months mentioned is the period within which the Government are to give further details. Can the Minister help us with the wider timetable and consultation, which surely needs to be wider than just unaccompanied children?

Reference has been made to the use of guidance. Can guidance achieve what is proposed? It cannot override the rules. I endorse and support the points made by the noble Lord, Lord Dubs, about the importance of seeing drafts both of rules and guidance. Parliamentarians can then have input and amendments can be gently suggested, if not formally proposed. We cannot do this with unamendable rules.

It is beyond me that what is necessary now is to show

“serious and compelling family or other considerations which make exclusion of the child undesirable”,

in the words of the rules. Putting it that way round, rather than the converse, has always seemed perverse to me. So, too, is the policy that an application under Article 8 of the European convention, on the right to family life, will not succeed unless there are “exceptional circumstances” with refusal resulting in “unjustifiably harsh consequences”.

On the timetable again, one of the government amendments refers to two months from the date of commencement, which is beyond the end of the year. Can the Minister assure the House that there will be no lacuna as a result and that work on plugging the gap, as it were, will start immediately and apply notwithstanding the commencement date? If there needs to be a change, can it be made in the Commons? I appreciate that that would require the Bill to go back to the Commons.

In practice, it is very difficult to show that a child is in an unsafe environment. Other current problems that need to be considered are getting a child to a visa application centre to make an application under the rules, and the fees which, under one of the paragraphs of the rules, are well over £3,000. I make these perhaps slightly random points because, alone, they show the importance of consultation on the whole situation.

The Minister in the Commons referred to

“dangerous, illegal and unnecessary crossings”.—[Official Report, Commons, 2/9/20; col. 182.]

I stress “unnecessary”. Would the crossings be made if they were? And was it appropriate to refer to lives lost and profit made by criminals as if they were of equal weight?

The noble Baroness referred to bilaterals. If she can give us an update, it would be welcome, but I appreciate that it may be difficult to refer to negotiations with the EU at the moment. Bilaterals would have to come after the end of the year, but we should not depend on them being in place for some time yet.

I realise that I am not taking my cue from the noble Lord, Lord Dubs, as I should, who always succeeds in using the most moderate language. He started by welcoming Amendment 4C, so I will end by confirming that these Benches are pleased that he has again pointed the way forward. We support him. If he decides to divide, we will certainly go with him. In any event, like him, we will continue to seek a much more satisfactory arrangement for asylum seekers, who want the most natural thing in the world: to be with their family.

[Lord Rosser (Lab) [V]]

We welcome the government amendment providing for a review of legal routes to the UK, including for family reunion of unaccompanied asylum-seeking children and for a report on the outcome of the review to be published and laid before Parliament—which I hope will be within a matter of months, rather than years.

The concern that the amendment of my noble friend Lord Dubs seeks to address is what will apply in the interim, between the end of the transition period—and thus the end of the Dublin regulations—and the introduction of any revised or amended arrangements on legal routes to the UK, following the outcome of the review. In other words, there needs to be provision for those, including unaccompanied asylum-seeking children, who would have come in successfully under the Dublin regulations—had they still been in existence after the end of this year—still to have an equally accessible and achievable safe and legal route in that interim period, which would continue to enable them to come to the UK.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Lord Rosser and Baroness Hamwee

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 21st October 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, at every stage, tributes have been paid to the noble Lord, Lord Dubs—rightly so, but I imagine he must sometimes be shouting at his screen, while on mute, “Forget the tributes, just accept the amendment.”

The Commons reason is that leave to enter to make an asylum claim, and a strategy to ensure that an unaccompanied child can be relocated in the UK if it is in the child’s best interests, would be, in their words, as the noble Lord said, a “charge on public funds”. Like him, I appreciate that this is a standard response, but it in no way reflects the debate. They trust that we will regard it as sufficient; it is not a sufficient reason.

We were told that it would not be right to undermine negotiations with the EU, with which, it must be said, agreement on this issue shows no sign of life at all. Domestic legislation must be the least threat in this context. It is still not too late to do the right thing.

Our Immigration Rules are inadequate, and applications outside them rarely successful. The Government have announced that they are looking at safe and legal routes for those seeking sanctuary next year. We on these Benches will not subscribe to the notion that this is an issue for next year. The routes are unsafe now, and we could make them considerably safer. We support the amendment.

[Lord Rosser (Lab) [V]]

Currently, the only legal way to reach this country from the EU in order to claim asylum, including for unaccompanied children, is through the Dublin III regulation on family reunion. That route, as we know, will cease to be available at the end of the transition period in a few weeks’ time. The Government have no comparable proposals to replace Dublin III, since their alternative removes the mandatory requirement to facilitate family reunion, removes a child’s right to appeal against refusal and further narrows the definition of “family”, since a child or teenager would no longer be able to join, for example, an aunt, an older sister or someone who could look after them when they have been separated from their parents

Safe Passage, to which reference has already been made, which supports child refugees, has said, I believe, that more than 90% of the young people and children it has supported through the Dublin III legal pathway would be unlikely to qualify under the Government’s alternative system. The numbers involved are not large and are very small indeed compared with the numbers of those from outside the EU whom the Government, by choice, each year, have enabled to come to this country. Before the mandatory Dublin III provisions came into effect, about 10 or 11 children per year came to this country under the scheme. Since 2016, when it became mandatory, the average number of children per year has been just over 500.

We support the amendment in lieu, Amendment D1, moved by my indefatigable noble friend Lord Dubs, which represents the guaranteed continuation of a decent and humane approach, particularly to children and young people in real need, including in real need of a safe and legal route to safety.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Lord Rosser and Baroness Hamwee

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 12th October 2020 Lords Chamber

[Lord Rosser (Lab) [V]]

Along with my noble friend Lord Kennedy of Southwark, I thank the Minister and congratulate her on her stamina and patience throughout consideration of the Bill, if not, perhaps, on the number of government concessions. We also thank her for her typical willingness to meet and discuss matters relating to the Bill; that is much appreciated. We appreciate, as well, the contribution of the noble Lord, Lord Parkinson of Whitley Bay, and the work of the Bill team. In addition, perhaps I may be permitted to thank Grace Wright in our office for all her work and invaluable advice on the Bill.

This Bill has of course had its own unique incidents, not least the temporary hiccup over the voting arrangements. Let us hope that that remains unique to it.

As the Minister said, the Bill now goes back to the Commons—in my view, certainly a better Bill than when it left the other place. All that we can now do is wait to see what the Commons make of the amendments passed by your Lordships’ House.

I reiterate on behalf of my noble friend Lord Kennedy of Southwark and myself our thanks to the Minister, the noble Lord, Lord Parkinson, and the Bill team, and indeed to all noble Lords who have participated in the lengthy and interesting debates during the passage of the Bill.

[Baroness Hamwee (LD)]

My Lords, as the Minister said, the Bill is about ending free movement. From these Benches, we are no more enthusiastic about that than when the Bill started; if anything, perhaps less so, particularly because the debates have vividly demonstrated the impact on UK citizens resident in the EU and EU citizens living in the UK.

In our view, it is not surprising that the opportunity has been taken to pursue issues relating to the ending of free movement that have a wider context—a rather softer way of describing the various amendments that all sailed through the Public Bill Office, which is particularly careful in that regard. All the amendments have been very people-focused, which shows that there is a view of a fair and firm asylum system that is very different from the Government’s.

This is not the moment for long speeches, nor to rehearse the arguments on the amendments that were agreed by our House with such notable support. The noble Baroness, Lady Williams, and the noble Lord, Lord Parkinson, bore with good humour all that was thrown at them, although I do not know whether they took it out on the cat when they got home.

I express my thanks to our colleagues on the Liberal Democrat Benches and elsewhere in the House; to the Bill team for all their work; and, since the noble Lord, Lord Rosser, has paved the way, to Elizabeth Plummer in our whips’ office, whose assistance on the Bill has been magnificent.

We would like to think that we will not be discussing the various amendments again but I realise that we may well do so. In the meantime, with the obvious caveats, we support the Motion that the Bill do now pass.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Lord Rosser and Baroness Hamwee

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, in replying to this and the other amendment on no recourse to public funds in Committee, the Minister, the noble Baroness, Lady Williams, said, according to Hansard, that Home Office analysts were looking at the data to determine what figures could be “reduced”. I would like to think that that might have been about reducing the numbers of people with no recourse, but I suspect that it was a misprint for “produced”. The noble Baroness is nodding.

Almost all the speakers have lit on the issue of lack of data. It occurs to me that a lack of data indicates something of a shortfall in interest among the policy makers on the impact of the policy that they are making. Like much that relates to the immigration system, this amendment is about humanity and common sense: common sense because of the important public health argument about ensuring that people are not prone to disease that can be prevented and that children are fed well enough to be educated and to grow into good citizens, and humanity for obvious reasons.

Hard cases are not to be excluded when we think about policy; they have to be considered to bring attention to bad law. I do not think that the taxpayer is a single cohesive figure. Taxpayers have a wide range of views and there are quite a lot among us who would like to see our taxes spent differently and better. If that means more tax being raised, that is a price that we understand we have to pay.

[Lord Rosser (Lab) [V]]

My Lords, Amendment 24 in the name of the noble Baroness, Lady Bennett of Manor Castle, would prevent regulations being made under Clause 4 until the Secretary of State had provided legislative measures to ensure that EEA and Swiss nationals in the UK are not subject to no recourse to public funds. This includes repealing or amending relevant no recourse to public funds provisions in the Immigration Act 1971 and the Immigration and Asylum Act 1999. I assume this means any regulations under Clause 4 and not just regulations relating to no recourse to public funds.

We had an amendment in Committee that would have had the effect of not applying the no recourse to public funds rules during the current Covid-19 pandemic, and then until such time as Parliament decides. To keep the amendment within the scope of the Bill it applied only to EEA and Swiss nationals. We have been calling since April for no recourse to public funds to be suspended for the duration of the coronavirus crisis. We asked the Government to lift no recourse to public funds as a condition on a person’s migration status to ensure that nobody was left behind in the public health effort undertaken in the fight against the coronavirus. In June, the Home Affairs and Work and Pensions Select Committees recommended that the Government should “immediately suspend NRPF” for the duration of the pandemic on public health grounds. The Work and Pensions Committee said:

“As a result of the no recourse to public funds condition, many hardworking and law-abiding people are being left without a social safety net and at risk of destitution and homelessness.”


Our amendment found no favour with the Government —as, indeed, may prove to be the case with every amendment on this Bill, with the exception of perhaps just one. As set out in Hansard, I asked—as did my noble friend Lady Lister—for some numbers in relation to no recourse to public funds. The Minister said they were not part of published statistics, but that Home Office analysts were looking at the data to determine what figures could be produced. As has been pointed out by the noble Baroness, Lady Hamwee, it said “reduced” in Hansard, but it has now been confirmed that it should have said “produced”. Whatever the situation, it would be very helpful if the Minister could say exactly when the Home Office analysts expect to complete the exercise that they are undertaking in relation to figures, information and data available.

This amendment goes further than our amendment in Committee on no longer applying NRPF, in that it does not relate only to the period of the pandemic and does not leave it for Parliament to decide if and when its terms are no longer to apply. Like the noble Baroness, I await the Government’s response.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Lord Rosser and Baroness Hamwee

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Monday 5th October 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I put my name to the amendment on behalf of these Benches. To be saying at this stage—three months from the end of the transition period and very close to the practicable end date of the negotiations—that our draft agreement is still on the table, as was said at the previous stage, feels like a denial of reality, and I follow the noble Lord, Lord Kerr, in that comment. Like the noble Lord, Lord Randall, I will be interested to know the up-to-date position.

Certainly a prudent Government would look for a mechanism to plug the gap, as the noble Baroness, Lady Primarolo, said, in case the draft slips off the table or is just not picked up—and this is the mechanism. I am very glad to support it, as I did in Committee when I too had an amendment on family reunion. At that stage, the Minister said that the Government had acted in good faith and that she hoped that the EU would do the same. Like the noble Lord, Lord Dubs, I cannot say that I regard the draft agreement as adequate. The principal obligations are not obligations—they are discretionary—but, whoever should take the blame for the stalemate, we must not let asylum seekers be the losers by being caught in the middle. They are not illegal, not unless and until their claim is refused.

This is likely not to be the first time that I will be taking a different view from the Minister about pull factors, especially when the push factors are so significant.

Of course we agree on the importance of safe and legal routes. That is the most important thing. Our view is that what is safest is to provide legal routes and deprive criminals of the opportunity to exploit people. It may be that our routes to that differ somewhat—perhaps they are not the means that the Home Secretary is considering—but that is not really for today. As has been said, our current rules are inadequate. The Government refer to that well-known paragraph 319X of the rules as providing the route that allows children to join relatives recognised as refugees, but the scope is very narrow, there are many restrictions and substantial fees are payable. As I understand it, the data does not separate out the categories or the basis of application, and those who take that route are included in the Home Office’s figures with other routes. Including all those routes, there were only 30 successful applications in 2018 and 54 in 2019. It is certainly not an adequate substitute for a successfully negotiated agreement on family reunion or a change in the UK’s rules, at least until an agreement or agreements are negotiated, as the amendment provides.

Working with the UNHCR and resettling people from the Middle East is not something we want to see replaced. The noble Lord, Lord Judd, the noble Baroness, Lady Lister, and others referred to the numbers in this plight across the world. As the noble Lord, Lord Dubs, said, we cannot take everyone but we can play our part. It seems to us that it is a policy decision for the Government whether to make it an “and” rather than an alternative.

[Lord Rosser (Lab)]

My Lords, unless action is taken now, the arrival of 2021 will see child refugees in Europe lose safe and legal routes to the UK since neither a right to family reunion nor access to the Dubs scheme, under which lone children had a legal route to sanctuary in the UK, will then be available. Family reunion under Dublin III regulations is currently the only available legal pathway to reach the UK from the EU for the purposes of claiming asylum. That pathway will no longer exist after the end of the Brexit transition period in three months’ time.

The Government gave assurances to Parliament at the beginning of this year that they would protect family reunion for unaccompanied children. The Government have since removed any mandatory requirement to facilitate family reunions, making it simply discretionary. Including the terms of Amendment 15 in the Bill will ensure that routes to safety through family reunion and relocation remain, which means that families can reunite and children can reach safety.

Between 2009 and 2014, before mandatory provisions were introduced by Dublin III, family reunions to the UK, for both children and adults, were carried out at an average rate of 11 people annually. Between 2016 and 2018, after mandatory provisions were introduced by Dublin III, family reunions to the UK were carried out at an average rate of just under 550 people annually, which strongly indicates that families remain separated without mandatory requirements on government to facilitate family reunions. As my noble friend Lord Dubs said, the figures also suggest that the numbers involved under a mandatory requirement are very small, certainly compared with the hundreds of thousands of people whom this Government, without any free movement requirement to do so, do not have any issues with freely allowing to come to this country each year from outside the EU.

As my noble friend Lady Lister of Burtersett said, research has shown that of the 12,000 unaccompanied children granted asylum by the UK over the past decade, some 10,000 came to the UK by dangerous routes on lorries and small boats, probably via people smugglers, because they could not access a legal route. That lack of access to a legal route is going to become absolute from the end of this year for the reasons set out by the noble Lord, Lord Kerr of Kinlochard, and the consequences, in respect of risks to their safety, for those seeking to join their families and for unaccompanied children, are simply going to get even worse. Action is needed now to address the situation that is imminent. If it is put to a vote, we will support Amendment 15.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Lord Rosser and Baroness Hamwee

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 16th September 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

To follow the previous speech, this may be the first time we are taking this particular car round the track but I do not think it will be the last, because this amendment is aiming

“to clarify the rights … available to EEA citizens during the ‘grace period’ under”

the recently published SI. It is about the period to the end of June 2021. I say it aims to clarify the issues but it is more about putting some issues on the table. The Minister will be able to say that the amendment is not necessary because we have already done it. I thank her or possibly him—I am peering at a computer screen—for that and for what I saw being called the “bounty” of the recently published draft SIs. I think that was a reference to their length and complexity.

The instrument in question is the draft citizens’ rights (application deadline and temporary protection) (EU exit) regulations 2020. However, I am afraid that the debate now will not be the end of it. After this debate, as well as before it, stakeholders will be grappling with the detail of it and the other published SIs. I do not regard myself as having the knowledge required to appreciate the significance of the modifications to all the provisions listed across the 14 pages of this instrument.

My first question is about the status of the draft, which has been referred to throughout as an “illustrative draft”. What does illustrative mean? Is this simply because draft statutory instruments have a formal status, while this publication has not reached that status?

Exactly who is protected by the grace period provisions? Is it only those exercising treaty rights by the end of 2020, while, for instance, people who are self-sufficient and without comprehensive sickness insurance—what might better be called in this country private health insurance—are not covered? When the 2020 withdrawal Act was going through Parliament, there were clear assurances that everyone eligible for status via the EU settled status scheme would be protected during the grace period. The Minister will appreciate the importance of the issue: protection is not to be withdrawn from those currently eligible otherwise than through treaty rights who have not applied by the end of the year. In previous debates, I raised the importance of information being not just available but actively provided to those who are affected, in the context of who will be applying after next June. If this SI is to restrict applications, the matter is really very urgent.

The Minister, Kevin Foster, said that the regulations would be

“debated and made in good time prior to their entry into force at the end of the transition period.”—[Official Report, Commons, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 16/6/20; col. 191.]

I am sure noble Lords will understand that what is “in good time” for the Home Office could be very last minute for the individuals affected.

Will the Minister comment on one of the draft illustrative regulations? Regulation 7 in Schedule 1 to the 2016 regulations, which this modifies, acknowledges the discretion of member states

“acting within parameters set by the EU Treaties”

in taking a decision conducive to the public good. This discretion will become:

“acting within parameters set by the law, to define its own standards of public policy and public security, for purposes tailored to its individual context from time to time.”

I will not go down the route of saying that this is quite topical, given both the political and politico-legal debate that is going on, but I am sure the Minister will understand that there is a worry about moving the goalposts.

Will the Minister agree to meet parliamentarians if necessary—I understand there is a similar concern in the Commons—and for officials to be able to meet stakeholders, and the legal experts who are advising them, who are considering this draft and the other draft published at the same time? They are concerned, and they need the time. I ask that knowing that there is the opportunity for the Government to withdraw a published draft and reissue it, but it is always much easier, because of how human beings behave—they do not like to be thought to be backing down, and so on—to have the conversations before the final form is published, when it will be that much more difficult to withdraw.

My amendment provides the opportunity to make those requests for what I am sure could be productive discussions with people who are not in the Chamber at the moment and who will have other points they could usefully make. I beg to move.

[Lord Rosser (Lab)]

We had a short debate on this issue when we debated Amendment 52, and I raised one or two questions about the draft SI, which, as the noble Baroness, Lady Hamwee, said, is called the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. One of the questions I raised, to which I do not think I had an answer, related to Regulation 13, which states:

“Where any question arises as to whether a person is or was lawfully resident in the United Kingdom at a particular point in time … it is for the individual in question to prove that they were”.


I asked in what situation the Government expect that people would have to prove their ongoing status; how they envisage people will do this, in the sense of what documentation they might need, for example; and, crucially, what support there would be for a person who found themselves in this situation and who might well in fact be perfectly lawfully resident in the United Kingdom.

I share the view that the noble Baroness, Lady Hamwee, expressed, that we need an opportunity for discussion of the provisions of the draft SI, and that it is a fairly complex process. At this stage, I have two further questions. First, are there any EEA citizens, and their families, resident in the UK by the end of the transition period whose full existing rights are not going to be protected during the grace period through secondary legislation made under the European Union (Withdrawal Agreement) Act 2020? Secondly, will the Minister spell out precisely whose full existing rights are protected by the draft SI?

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Lord Rosser and Baroness Hamwee

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 14th September 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, I have my name to this amendment on behalf of our Benches. The subject matter of this amendment, and that of later Amendment 62, are very close. Amendment 62 is about family reunion, and the noble Baroness, Lady Primarolo, in particular, referred to that. It will not escape the Committee that there is a particularly persuasive factor to Amendment 48, and that it is led by the noble Lord, Lord Dubs, whose track record in leading the House on issues relating to refugees, particularly child refugees, is second to none.

I do not want to repeat points that have been made about push and pull factors, or about children’s experiences. I am very clear about the moral issues that have been referred to. As the noble Lord, Lord Alton, has rightly reminded the House, the Government has not done nothing. It will, however, be hearing the call to do more.

I want to make some technical points. Ministers tell us they are working hard—I do not mean to impugn anything there—to ensure that unaccompanied asylum-seeking children are looked after in the best possible way after we leave the Dublin regulations. As we have heard, they have referred to the draft negotiating document, the draft working text for an agreement between the EU and the UK on the transfer of these children, but there are two problems. First, there is nothing firm about that text: member states “may” make a request to transfer a child, and the UK “may” make a request to member states. Secondly, the EU has no mandate to negotiate on behalf of member states on this. To deal with the latter first, the Security and Justice Sub-Committee of the House’s Select Committee on the European Union took evidence on the text in July from witnesses, including the noble Lord, Lord Dubs, and Professor Elspeth Guild, who explained the position to us. In the political declaration of last October, which is the basis for the commission’s negotiations—it has been given a mandate to negotiate on that basis—there was only one section on what is called illegal migration, which in turn is the basis for a draft agreement. That provides for co-operation to cover only three subject areas which do not include this issue.

When I first read the political declaration I wondered whether illegal migration covered refugees at all because they are not illegal, but since one of the three issues is tackling problems upstream, that suggests that refugees come within it. However, I will not challenge a professor of law with posts at two prestigious institutions, and I follow her argument. The EU has no mandate in negotiations, but that is not the end of it. The UK cannot negotiate an agreement member state by member state, because this is, counter-intuitively in view of what I have said, a fully exercised competence of the EU, so it is not open to member states to negotiate with the UK. It is counter-intuitive and a Catch-22 situation. Professor Guild said:

“The idea that we would be able to negotiate with each member state an equivalent of Article 6 of the Dublin regulations seems to me … astonishingly naive.”


It would need a lot of political will on all sides to sort this out through the UK-EU negotiations. We are all aware that matters are somewhat tense—would that be the right description? I, like others, am not optimistic about a positive outcome.

In January 2019, when the House was considering this issue, the Minister wrote to noble Lords that:

“negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas”,

referring to

“the traditional division between Government and Parliament”.

Given what we all know, or maybe do not know but suspect, about what is going on, is it wise to rely on the possibility of negotiation?

Apart from the principle, there are some shortcomings in the draft text of the provisions: the “may”, not “must”. It also says that no rights can be directly invoked in the domestic legal systems of the parties. That alone would make it hard to go along with the text. However, we can sort this out in domestic law, hence the amendment. The noble Lord, Lord Dubs, has been as persuasive as ever. The noble Lord, Lord Kerr, has been clear about channel crossings. I will not go on; I agree with pretty much everything—possibly everything—that has been said. Immigration Bills come along quite frequently, but we should not wait for the next one. The amendment is not a big ask; its objective, in proposed new subsection (5), is clear, but it requires strategy and clarity about reaching that objective. Crucially, it refers to the “child’s best interests”. We should take this opportunity to provide this safe and legal route for children.

[Lord Rosser (Lab)]

My Lords, Amendment 48 provides that the only existing legal route, which is under the Dublin III convention, for asylum seekers, including unaccompanied children, to join family in the UK would remain operational after the end of the transition period. It also requires the Secretary of State to lay a strategy before Parliament to ensure that unaccompanied children continue to be relocated to the UK if it is in the child’s best interest. Family reunion under the Dublin III convention will no longer apply after the end of the transition period, in just over three months’ time. That means that vulnerable child refugees seeking to join relatives in the UK will no longer have this, or any other, safe route to our country, unless—which looks increasingly unlikely—there is a deal with the EU before the end of the transition period, which incorporates an alternative family reunion arrangement.

The Government have previously given assurances that they would protect family reunion for unaccompanied children. However, the UK’s draft proposal for a replacement to family reunion no longer includes mandatory requirements on the Government to facilitate such reunions. Instead, it makes a child’s right to join their relatives discretionary and, on top of that, abolishes a child’s right to appeal against a refusal. Vulnerable refugees, including accompanied children and adults, would lose access to family reunion entirely. The evidence indicates that, without a mandatory requirement, family reunions will, to all intents and purposes, end, which may be the intention behind the Government’s draft proposal.

For the five years before mandatory provisions were introduced by Dublin III, from 2009 to 2014, family reunions of children and adults to the UK averaged just 11 people annually. After mandatory provisions were introduced by Dublin III, family reunions to the UK averaged nearly 550 people annually. Significantly more than 11, but not a significant number in itself, compared with the overall net migration figure of some 200,000 plus. Without a mandatory requirement, children are likely to remain stranded in Europe indefinitely; alternatively, some may risk the more hazardous routes, involving crossing the Channel in small boats or a lorry in an attempt to reach family members.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Lord Rosser and Baroness Hamwee

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 9th September 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, some years ago I chaired some work on the minimum income requirement affecting British people who, as has been said, never thought that they would be affected by their own country’s immigration laws.

The noble Baroness, Lady Bennett, mentioned someone from south Wales. I encountered someone from south Wales, David, whose second wife was a teacher from Canada—I do not think that you can get more respectable than being a teacher from Canada. By his first marriage he had a disabled daughter. Had he been able to bring his wife to the UK to share the care of his daughter, that, among other things, would have saved the state a lot of money. Instead, he had to limit the amount of work and the kind of work that he did and so did not meet the minimum income requirement. She was appallingly treated. I do not believe people in British society would support this, were they to know about it. Many do not until they are brought up against it personally. I have long thought that the answer to all this will be found only when a son or daughter of a Cabinet Minister finds himself or herself in this situation.

The focus at that time was largely on spouse visas and what can be taken into account in calculating incomes. That has been changed somewhat, but the issue remains. The rules about leave to enter for an individual’s parents are so harsh that they really amount to saying, “You need to be so much in need of care and support that you probably would not be fit to travel.”

The reality of this is striking home, as noble Lords have said. One of my noble friends received a letter, which she passed on to me at the weekend, from a UK citizen who has found herself in this situation. I shall read some short extracts: “As someone who married a non-UK EU national in the UK but then moved to his country to live as his parents were already elderly, never was it in my worst nightmares that I would not be able to do the same and I might be forced to choose between caring for him and caring for my mother. When I left, returning was always an option, as I work remotely, to be able to return to care for my parents. My parents are now on the brink of their eighth decade. My mother has lung issues. My father has prostate cancer. It is inevitable that I will want and need to return at some point. What child does not want to care for their parents themselves?”

She goes on: “I and many of the more than 1 million UK citizens living in the EU will not have that right. If we do not return before the end of 2022, our fate will become income-dependent. How is it conceivable that the British Government’s approach involves discrimination against its own citizens? Surely, the family is as sacrosanct in the UK as in the rest of Europe.” I am pleased, from our Benches, to support this amendment.

[Lord Rosser (Lab)]

My Lords, I declare a family interest in the issue raised by the amendment. As the noble Lord, Lord Flight, said, the wording in the Bill means that British citizens who moved to the EU or EEA while we were a member will lose their right to return to this country—their country of birth—with a non-British partner or children unless they can satisfy financial conditions that many may well find difficult or impossible to meet. Amendment 23, to which I am a signatory, seeks to address this situation.

I do not wish to repeat the points made by the noble Lord, Lord Flight, in moving this amendment. I agree with everything that he said. I hope that as well as responding to the arguments that he made, the Minister will also comment on his point that the change is, in effect, retrospective, since it is our country and our Government who are changing the rules that apply to our citizens on this issue. When they made their personal decisions to move to the EU or EEA, the rules, as they currently apply, may well have been a factor in making that decision; it is our Government who are now apparently seeking to change those rules.

No doubt the Minister, on behalf of the Government, will also comment on a further point made by the noble Lord, Lord Flight. He said that it appears that the new UK rules that will apply to British citizens in the situation that we are talking about will be much tougher in their terms than those that apply to EU citizens with settled status in respect of their ability to bring their dependants to join them in the UK. No doubt the Minister will confirm, in the Government’s reply, whether that is the case.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Lord Rosser and Baroness Hamwee

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 7th September 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, we on these Benches—I am on them virtually—make no bones about how much we oppose the ending of free movement. That includes both welcoming EEA citizens—the collective term which includes the Swiss for this purpose—and their families to live and work in the UK, and the equal and opposite right for British citizens in the EU. For myself, it offends my politics, my emotions, my values, my logic and, you might say, my whole outlook on life. However, I will endeavour to keep my remarks within the scope of the Bill and not to seek to reopen what has irreversibly been decided—although “irreversible” may have gained a new definition overnight—nor do I want to make a Second Reading speech.

What is relevant is that the Bill does not set out what will be in place of the current arrangements. Like the noble Lord, Lord Adonis, I am with the noble Baroness, Lady Neville-Rolfe, regarding the importance of the integrity of the system. We might want different systems, but what we have should be robust.

The noble Baroness and the noble Lord spoke in terms of enforcement—a term used in the amendment. I prefer to talk in more inclusive rather than exclusive terms. She talked about so many of the issues that we are addressing now, or failing to address. One must use the opportunity to say that the best way to address them is to create safe and legal routes to the UK. I do not want to divert on to the wider question of those who seek sanctuary, but I have to disagree with her approach and some of the language that she used.

By no means all of the new, much-heralded immigration system which will apply to EU citizens is yet in the public domain. The noble Lord, Lord Adonis, referred to UK citizens in the EU; he may see that Amendment 23, which we will come to later, may give us more of an opportunity to discuss their position. When the system is in the public domain, however, we will not be able to rely on it in the same way as we can rely on primary legislation because of the flexibility—would that be a polite word?—provided by the Bill. So much of our system is contained in rules which Parliament cannot realistically amend, and indeed often it takes an awful lot of background knowledge and experience, application and concentration to understand those rules. It is no wonder that the Government had some years ago to require a particular level of expertise to advise on immigration. The rules are difficult for most of us—other noble Lords may say that they waltz through them with no difficulty; I do not—and they are often impenetrable to those directly affected. I have too often heard Ministers say, “It is on GOV.UK.” That is not everyone’s bedtime reading. Indeed, however detailed the rules and however much they flesh out the Bill, it remains a skeleton.

My noble friend Lady Ludford and I have three amendments in this group, all to Schedule 1. The noble Lord, Lord Pannick, referred to the coy but comatose draftsman—I may use that term on other occasions—and my noble friend Lord Beith asked an important question about what instructions had been given to the draftsmen and draftswomen. After all, the responsibility lies with Ministers.

Amendments 4 and 5 take out some of the most offensive words in Schedule 1, which I do not think I need to read into the record again, as others have referred to them. They are wide and imprecise; there are references to “application or operation of” provisions, and

“otherwise capable of affecting the exercise of functions in connection with immigration.”

If any of your Lordships on Opposition Benches were to produce amendments using that sort of terminology, we would quite rapidly be shot down, and rightly so, by the Government Front Bench.

A lot of functions are connected with immigration, and we will come on later to employment, renting property —the rest of the hostile environment. There are also all sorts of functions which I would accept are necessary but which I would not want brought within the repeal of

“rights, powers, liabilities, obligations, restrictions, remedies and procedures”,

to which Section 1 applies.

Amendment 6 in our names would add words to the schedule by not applying it to rights which do not arise under an EU directive. Directives which do not relate to immigration include, in our view: the protection for victims of trafficking in the anti-trafficking directive—there is an amendment specifically on that—the protection for asylum seekers in the reception conditions directive 2013/33, and the protection for victims of crime in the EU victims’ rights directive 2012/29. We do not suggest that we believe that these protections are at risk, but we do not know. If the Bill remains as it is when it becomes an Act, the only way to know for certain is to test the matter in the courts. The noble Baroness, Lady Neville-Rolfe, was critical in the context of removals from this country of applications to the courts. However, that is what they are there for, and they are applying law that has been made by Parliament, or by Ministers subject to the rather inadequate scrutiny that parliamentarians are able to give them.

On Amendment 6—this is something that has been identified by the Immigration Law Practitioners’ Association; the noble Lord, Lord Pannick, mentioned the comments on the Bill by its chair, Adrian Berry—the protections are potentially at risk as what the association describes as “collateral damage”. We hope that they do not fall within the scope of the Bill, but I think it is a matter for the Government to explain what the position is. This is all about the lack of clarity, the bad rule-making, to which other noble Lords have referred, all offensive to the rule of law.

To return to the first amendment in this group, I welcome reports to Parliament and parliamentary scrutiny. I am hesitant to criticise or comment on the wording of the clause, having learned from the noble Baroness that the clerks were involved in crafting it, but I am not sure that the provisions of Schedule 1 are correctly described as enforceable. A provision within six months would take us beyond the end of the year. However, I should not carp about that sort of detail because, whatever the language, I understand that the supporters of Amendment 1 are seeking to ensure that free movement ends and that Parliament is told how. We have made our views about the first part of that very clear.

Before I finish, I want to mention the amendment by the noble Baroness, Lady Prashar. I thought the points made by noble Lords were very telling regarding the reference to soft power. I was reminded of listening to the European Union Youth Orchestra a couple of years ago in Edinburgh. That was a very special experience and it rather goes to why we are so distressed by what we are having to go along with in the Bill.

I think I have said enough not to have to refer specifically to our opposition to Amendment 1.

[Lord Rosser (Lab)]

My Lords, this group of amendments seeks to address the issue of the lack of clarity in the Bill, not least in Schedule 1. I am sure we have reached the stage now where noble Lords want to hear the Government’s response. I wish to comment briefly on three of the amendments in this group, although all of them raise issues of significance, as my noble friend Lord Adonis has said. That has become clear from noble Lords’ contributions, even though noble Lords have not all been coming from the same direction.

Three days ago, we were sent a letter from the Government sharing illustrative drafts of regulations that they propose to make under the powers in Clause 4 of the Bill. One wonders why at least some of the terms of these draft regulations could not now be or already have been incorporated in the Bill and thus be open to proper parliamentary scrutiny.

Schedule 1 revokes Article 1 of the EU workers regulation, which provides freedom-of-movement rights. Paragraph 4(2) of that schedule provides that other parts of the workers regulation cease to apply so far as they are

“inconsistent with any provision made by or under the Immigration Acts”

or

“capable of affecting the interpretation, application or operation of any such provision”.

This is a very broad drafting. Amendment 3, to which the noble Lord, Lord Pannick, spoke with his usual considerable authority, would remove paragraph 4(2), as it is so broad and lacks clarity. We share the concern that that amendment seeks to address.

No doubt the Minister, in giving the Government’s reply, will be giving a pretty comprehensive list of examples of how and why, in the Government’s view, other parts of the workers regulation might credibly become, first, inconsistent with provisions made by the Immigration Acts and, secondly, capable of affecting provisions made by or under the Immigration Acts.

Windrush Compensation Scheme

Debate between Lord Rosser and Baroness Hamwee

Wednesday 24th June 2020 Lords Chamber

[Lord Rosser (Lab) [V]]

The Windrush scandal is a national cause of shame, and the Wendy Williams review exposed the callousness and incompetence that caused such deep injustice. The Windrush generation and their families have made an enormous contribution to every aspect of our national life since the arrival of the “Empire Windrush” 72 years ago. However, many faced appalling racism, extending beyond abuse to a lack of fair access to the basic necessities of life, including housing and jobs. The Williams review has brought home the extent to which these issues, and the associated deep injustice, remain; injustices that have been highlighted by Black Lives Matter.

The Home Secretary has said that the Government are accepting all 30 recommendations in the Williams review, but we will have to wait until nearer the Summer Recess to find out how, and over what timescale, the Government intend to implement them. At the moment we are still at the stage of words, not actions, from the Government, which still have other reports, including the David Lammy review, on which they have so far failed to act. This Government are quick to set up reviews and working groups, but slow to act on findings and slow to right the wrongs identified.

In her Statement, the Home Secretary informs us that she has established another cross-government working group to address the challenges faced by the Windrush generation and their descendants. How does this further working group relate to the

“expanded cross-government Windrush working group, which will take a strategic view of a range of issues relating to Windrush and wider race inequalities”—[Official Report, 6/5/20; col. 551.]

announced by the Home Secretary on 19 March this year, to which the Minister made reference during our debate on the Windrush compensation scheme on 6 May?

On 6 May, the Minister, on behalf of the Government, said that the Home Office estimate was that the Windrush compensation scheme would cost between £90 million and £250 million, based on 11,500 eligible claims. At £250 million, that works out at just below £22,000 per head, and at £90 million, it works at below £8,000 per head. Is that still the Government’s estimate of the number of eligible claims, and is that still the Government’s estimate of the cost of the scheme? If it is, do the Government believe that an average compensation settlement, on the Government’s figures, of somewhere between less than £8,000 and just below £22,000 represents a fair figure in the light of Wendy Williams’s words that:

“The many stories of injustice and hardship are heartbreaking, with jobs lost, lives uprooted and untold damage done to so many individuals and families … They had no reason to doubt their status, or that they belonged in the UK”?


The impact assessment for the Windrush compensation scheme says:

“The Government will also mitigate the risk of litigation and associated legal costs, which is likely to be more expensive than compensation through the scheme.”


In other words, the Government also regard the Windrush compensation scheme as likely to save them money. Could the Minister clarify whether accepting an offer of compensation under the scheme also means that the claimant can no longer take legal proceedings against the Government on this issue?

There is provision for an independent review by an HMRC adjudicator where a claimant is not satisfied with the outcome of their claim. Can the Minister confirm what appears to be the case—namely, that the Home Office can choose to reject the recommendation of an independent review?

The Government also said in the debate on the Windrush compensation scheme last month that

“the award levels take into account existing precedents and ombudsman-recommended payments.”—[Official Report, 6/5/20; col. 548.]

What are the existing precedents, bearing in mind the way the Windrush generation were treated over so many years and the damning findings and words of Wendy Williams? Also, which ombudsman’s recommended payments were being referred to?

The progress in dealing with claims to date has been painfully slow. Apparently just 60 people were granted compensation in the first year of the scheme’s operation. The Home Secretary declines to apologise for the delay, but rather accepts it and simply implies that the pace is now increasing. Can the Minister say how many staff are involved in processing claims, expressed in full-time equivalents, and whether any of this work has been outsourced? The number of those who have received payment is small compared with the Government’s estimate of eligible claims. Does the Minister think that the number of claims to date reflects a lack of confidence in a Home Office that Wendy Williams said showed “a lack of empathy”?

Can the Minister say what the average compensation payment to date has been? How many claimants have referred their claim to an independent reviewer? In how many cases has as an independent reviewer recommended a change to the original decision? Have such recommendations all been accepted in full by the Home Office?

The Home Secretary has said that she will come back to Parliament before the Summer Recess to provide an update on how the Government will implement all the Williams review’s recommendations. That will be an opportunity for the Government to show that they recognise that the time for action is now. Not to do that would be to fail the Windrush generation yet again. I accept that I have asked a number of specific questions in response to the Statement. I would appreciate being given the information I seek and will be happy to accept a written response to the specific questions that cannot be responded to today.

[Baroness Hamwee (LD) [V]]

My Lords, one of the recommendations of Wendy Williams’ review is that the Home Office

“devise, implement and review a comprehensive learning and development programme which makes sure all its existing and new staff learn about the history of the UK and its relationship with the rest of the world, including Britain’s colonial history, the history of inward and outward migration and the history of black Britons.”

I was struck by that when I read the review and three months on it has even greater resonance. I readily acknowledge that I am someone with gaping holes in her education that need to be filled. I, for one, need to learn what I need to learn, in the widest sense. It is not only Home Office staff who need that learning.

We all know the importance of leadership. The Home Secretary and the Permanent Secretary are reviewing Home Office leadership and culture. Can the Minister tell the House whether this has external facilitation? Does it cover the whole of the Home Office?

The Home Secretary says in her Statement:

“I have apologised for the appalling treatment suffered”.


A sincere apology is not something made and then done with; it must be constant and its sincerity demonstrated by action. The Statement later refers to the challenges faced by the Windrush generation and their descendants. It is wider than that. As Wendy Williams wrote in her first recommendation:

“The sincerity of this apology will be determined by how far the Home Office demonstrates a commitment to learn from its mistakes by making fundamental changes to its culture and way of working, that are both systemic and sustainable.”


Her seventh recommendation, which follows seamlessly, is for

“a full review … of the hostile/compliant environment policy and measures—individually and cumulatively.”

It should be scrupulous,

“designed in partnership with external experts and published in a timely way.”

That policy, whatever it is called—the hostile or compliant environment policy—is far-reaching and callous. It is racist.

The National Audit Office, in December 2018, commented on the department still showing a lack of curiosity about individuals who may have been affected and who are not of Caribbean heritage, on the basis that this would be a “disproportionate effort”. “In the circumstances”, the NAO reported, “we find this surprising”.

We all need to exercise our imagination and put ourselves in other people’s shoes when we consider what actions we may take, so I am pleased to hear that the Home Secretary will be accepting Wendy Williams’ 30 recommendations in full. I do not know whether there is any significance in the future tense “will be accepting”. We look forward to their implementation and to tangible outcomes.

When we first debated the report, I acknowledged that not all the implementation could be immediate. I also acknowledge that claims made to the compensation scheme must be considered and assessed. After all, some claimants may be claiming too little. But that does not mean that every “i” must be dotted and every “t” crossed before any payment is made.

The Statement refers to the urgent and exceptional payments scheme. I will resist going down the road of exploring whether the whole situation, and the claims, are exceptional, and whether they are urgent, given the age and current situation of many if not most of the claimants, brought about by their experiences, but I will ask the Minister whether the 35 payments totalling over £46,000 made to the end of March are the same as the

“many interim and exceptional payments”

that

“have been made to make sure that people have access … to the funds they need now”.

The figures seem woefully small. Does the Minister have more up-to-date figures? We are used to reporting by government on a three-monthly basis and reasonably so, but I would have thought in this case that Ministers would have wanted to see how payments are going month by month, in respect of every category of payment.

I will also ask the Minister about further offers. I cannot make the amounts mentioned add up to anywhere near “over £1 million”. Can she break that figure down? Can she explain “offered”? That suggests conditionality. Are claimants expected to agree that an offer is accepted in full and final settlement? If so, what advice can they access before doing so, and is this in the spirit of the apology?

The Home Secretary said she

“simply will not call for targets.”

I agree that these are “personal” and “individual” cases, as she said—or, indeed personal and individual people—to be treated with care and respect. However, I have asked in a Question for Written Answer—it was only last week, so I am not accusing the Minister of being slow in responding—what the Government’s targets are for the number of claims settled in full and the number of interim awards made within different periods after the commencement of the scheme. Sometimes there is a place for targets, and stretch targets at that. To aim high in paying what must for many must be much-needed cash is, in my view, one of those targets.

Finally, the Home Secretary is committed to ensuring that the Home Office delivers

“for each part of the community it serves”.

That is all of us, not only those with whom it has direct contact, but those on whose behalf it acts. We would all like to feel it acted in our name.

Covid-19: UK Border Health Measures

Debate between Lord Rosser and Baroness Hamwee

Thursday 4th June 2020 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I begin by expressing our thanks to our Border Force staff for their tremendous work, which is sometimes overlooked, in keeping our country safe. Regulations were laid yesterday to bring in the measures announced in the Home Secretary’s Statement in respect of the 14-day self-isolation period for people coming into this country, as from next Monday. There is no impact assessment with the regulations, which is due, we are told, to the rush with which they are being introduced. This is despite the fact that the Prime Minister gave notice of these quarantine measures nearly four weeks ago in his televised address to the nation. Surely the Government are not bringing in such a significant measure without providing some meaningful information on both the expected and presumably favourable impact they will have on the number of new Covid-19 cases coming into this country and their expected economic impact on the airline, travel, tourism and hospitality sectors, including on jobs. Can the Government now provide the meaningful information they have on these two aspects that led them to the conclusion that introducing these particular measures was imperative?

In the Statement, the Home Secretary said:

“Some have suggested that public health measures at the border should have been introduced when the virus was at its peak. However, at that time, the scientific advice was clear that such measures would have made little difference when domestic transmission was widespread.”


Actually, people like myself were not suggesting that sensible screening measures at the borders should have been introduced when the virus was at its peak, as the Home Secretary claimed and when no doubt the scientific advice was that that was a bit late. What was being called for was for such measures to be taken before the virus had really taken hold and the figures were low, yet when we were well aware of the extent of the problems already building up elsewhere in other countries, including in Europe. We did a limited amount of quarantining at first, but then it stopped. Now we are told that it is necessary. Given that, why was it stopped when large numbers of people continued to enter this country, certainly prior to our lockdown? Why is it necessary now, when other countries are beginning to ease their restrictions, if it was not necessary much earlier?

There was always one significant way that the virus was going to get into our country, and that was from people, or goods, arriving from or who had been to destinations that already had it. There must be a strong suspicion that, as with PPE and with testing and tracing, the measures were not in place when they should have been because the Government were caught unprepared and were too slow. As a result, the capacity to introduce and apply appropriate measures was just not there when it was really needed.

Yesterday, the Home Secretary was asked by the shadow Home Secretary to make available the scientific evidence on which the measures announced in the Statement was based. I am now asking the Minister to give that commitment on behalf of the Government when she responds. It is not enough to say that scientific advice will be published in due course. Information and evidence must be available already, otherwise how could the Government’s decision to introduce the self-isolation measures from next Monday have been based on scientific advice? I assume that these measures now have the wholehearted approval of SAGE, but it would be helpful if the Minister could confirm that.

The regulations have a sunset provision after 12 months and will be reviewed by the Secretary of State at least once every 21 days, with the first review on 29 June. Can the Minister, on behalf of the Government, give a commitment that they will now come back to Parliament before the end of that initial three-week window on 29 June to outline the Government’s proposed exit strategy from these measures and provide a comprehensive plan of support for all the jobs that are now even more at risk? Will she also give a commitment, on behalf of the Government, that there will be an Oral Statement to Parliament on each review date of the requirements in the regulations, so that the Government can advise Parliament of the outcome of the Secretary of State’s reviews and Parliament can question the reasons for any decisions made or not made?

Turning to the Explanatory Memorandum that relates to the SI affecting passengers arriving in England, paragraph 6.12 states:

“People who temporarily cross over the border from Wales or Scotland into England for a reason falling within these exceptions do not have to self-isolate … This is not applicable in relation to Northern Ireland which does not share a land border with England.”


Will the Minister spell out in a bit more detail precisely what this means in practice for Northern Ireland compared with Wales or Scotland? Why, if it is the case that Northern Ireland is being treated differently under these regulations from Wales or Scotland, is this necessary and unavoidable?

Finally, where does responsibility for the implementation of these regulations lie? I ask because the Home Secretary made the Statement in the Commons yesterday and our Home Office Minister in the Lords is responding today. However, the regulations implementing these measures are in the name of the Health Secretary. I know the Government are very keen to tell us that everything is dealt with on a cross-government basis, but where does responsibility lie for the implementation and operation of these measures? Is it with the Home Secretary, the Health Secretary, another Cabinet Minister—perhaps the Transport Secretary—or the Prime Minister? If things go right with these measures, and it is in the interests of the country that they do, we do not want to watch everyone in government trying to claim credit. If things go wrong, we do not want to witness an unseemly exercise in buck-passing.

[Baroness Hamwee (LD)]

My Lords, I would prefer to look forward, but I cannot avoid putting this measure into the context of current public attitudes. This is not just about quarantine; it is about how much confidence the public have in what the Government say and in what they tell us to do. There is a widespread view that these quarantine measures are unenforceable, and an even wider view that the Government have lost touch with reality. Today, the Prime Minister, in the vaccine summit, is urging the world to act collaboratively. Has it not occurred to the Government that, given our high rates of infection compared with many—probably most —of the countries to which people from the UK wish to travel, and to which they will therefore return, the risks to those countries are greater than to the UK? Last Friday, the UK had more deaths than the whole of the EU and EEA in total. Sir Patrick Vallance yesterday summed up what the public are thinking.

We have had monitoring and triaging at the border. Will that apply to those exempt from quarantine? I am interested to know from the Minister when the Government will publish in full the advice they have received, to which the noble Lord, Lord Rosser, has just referred, and the extent of consultation with stakeholders, including those who can reliably advise on the availability of tracking, tracing and testing.

Regarding enforcement, what discretion will there be on the level of fine and how will it be enforced when the recipient has returned abroad? We have just heard the Statement on the aviation industry, so I am not glossing over the issues with that by making just two points. Is progress being made in thinking about moves towards reducing damage to the environment by frequent flying? And, more immediately, how will the—presumably socially distanced—queues at the border be handled? We have seen images of Tuesday’s queues of MPs unencumbered by luggage, although possibly encumbered by baggage. Can the Government tell noble Lords the level of holiday bookings in place through to September? They must have talked to the industry.

It is not open to many people to take a holiday and then a period of isolation, so people must be cancelling. Many will have travel insurance. What do the insurers have to say about meeting claims on that basis? I hope that the Minister will not say that this depends on the detail of each policy. It is a wider point. I say that because I know that, in a different sector, there has been resistance to paying out when the insured thought that they had all the right cover.

I particularly want to ask about business travel. I had seen no comment on this until Mrs May’s observation yesterday that

“international air travel is necessary for trade; without it, there is no global Britain.”—[Official Report, Commons, 3/6/20; col. 850.]

There must be many people who, as part of their work, come and go between the UK, France, Belgium and further afield on a frequent basis. Of course, there is also travel for family reasons. There are people who work in the UK in large or small microbusinesses but whose home is in France, and vice versa, or who work in both countries but not on a regular basis of at least once a week, as the statutory instrument envisages. Why not have an exemption for people who travel irregularly and less frequently? Would that not actually give more of a chance for an infection to show itself? We heard in the previous Statement that there is no minimum period for a stay abroad, even if it is a couple of hours.

Is there any exemption for people who need to travel for international humanitarian purposes? I do not mean health workers coming to the UK. I did find it ironic to read that services to ensure the continued operation of the aviation industry are exempt. What estimate is there—I particularly want the Minister to share this with noble Lords—of the numbers of people exempted through the 12 pages of categories scheduled to the SI? What guidance will be published on matters such as travel to and from airports, or, given the restrictions on the hospitality industry, finding a hotel in which to self-isolate? The Home Secretary said yesterday that this would be in advance of 8 June; well, it would have to be. What assessment has been made of the likely transmission from those who are exempt, as compared with the extent of transmission if there were no restriction?

People need to plan ahead as far as they can in uncertain times. The quarantine measures are to be reviewed in three weeks. I end specifically by urging the Government to reconsider that period and to apply a serious—not tick-box—weekly review, and, generally, by urging clarity and coherence.

Immigration: Points-based System

Debate between Lord Rosser and Baroness Hamwee

Tuesday 25th February 2020 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement made yesterday in the House of Commons. In their separate policy statement, the Government said that the points system set out in the Statement the Minister has just repeated will reduce overall levels of migration, without telling us what reduction is expected. That leads one to suspect that this policy statement is a continuation of the Government’s policy of talking big, in their eyes, about reducing migration to satisfy their own anti-immigration constituency, when the reality is the exact opposite.

Over the last decade, we have been told by the Government of their determination to reduce net migration. For many years, their objective was to bring it down to the tens of thousands. Net migration actually went up under Conservative Governments over the last decade, even though the Government had control over non-EU migration which, in each and every year since 2010, has been in excess of net migration from EU countries. In 2018 non-EU net migration, over which the Government have control, was in fact three times the rate of net migration from the EU.

Are the Government now telling us that EU net migration—which I believe was about 75,000 in 2018—was made up of large numbers of people who we really do not need in this country? How many people are the Government now saying came into this country in 2018 and 2019 who they now want to stop coming in, first from EU states and secondly from non-EU states, and who will no longer be allowed in under the points system referred to in the Statement?

We have been told that a distinction will be drawn between skilled and low-skilled workers, and that points will be awarded only if a laid-down salary level, skill level and level of ability in speaking English are achieved. The idea is apparently to keep out those whom the Government deem to be low-skilled workers, who appear to include most of those working in care services, retail and hospitality, construction and agriculture, for example. What percentage of jobs in the UK do the Government consider fall into the low-skilled category referred to in the policy statement? Perhaps the Government could tell us in their response.

The Government do not really believe that the jobs they deem to be low-skilled can be filled from people already in the UK, particularly since their claim that 20% of people aged between 18 and 65, who are not in full-time work, are currently available to do these jobs has been somewhat demolished by the facts. Presumably this is why in the Statement there are significant loopholes, such as declaring shortage occupations, to get around the criteria referred to for when the Government inevitably find that labour shortages are damaging the economy and they still need those so-called low-skilled workers, just as we have up to now.

The Statement is less than clear on, for example, the detailed application of the salary thresholds, the position of the families of those coming into the country, the position of those who wish to be self-employed and the criteria for acceptance of degrees under the points system. Presumably, these are issues on which the Government intend to say more later. What is clear, though, is that this points system does not have as its primary objective bringing into the country the people needed to fill the vacancies and shortages that we need to address, as should be the case. Instead, in order to draw this distinction between skilled and low-skilled, an elaborate admissions system will be created in a short time to be administered by a resource-stripped Home Office—a recipe for error, confusion and unfairness, while many people feel somewhat dismayed by the Government’s view of the lack of importance or necessity of the much-needed jobs that they currently undertake.

I suspect the Government will soon learn that posturing with their changed immigration policy will no more work than their earlier posturing over getting net migration down to the tens of thousands. Even this Government will eventually have to recognise that the economic and social needs of the country must take priority in immigration policy. It is for that reason that the evidence suggests that a declared objective of reducing net migration by amounts as yet unstated and unknown will not be achieved by the Government’s intended points-based immigration system, any more than was the commitment to reduce net migration to the tens of thousands. Only a reduction in the necessity of recruiting people from outside the UK will do that—something that I have no doubt the Government, in their heart of hearts, already know.

[Baroness Hamwee (LD)]

My Lords, I too thank the Minister for repeating the Statement, which included the claim that the points-based system will provide “simple and flexible arrangements”. Can they be both? To me, “flexible” suggests some sort of discretion. Or is that about the tradability of points—something on which I for one reserve judgment?

We may understand just how workable this will be when we have details, so I would like to check with the Minister whether the new arrangements will be incorporated in primary legislation, or will they be part of rules? In other words, will Parliament be able to have a good say on them? Indeed, will it mean primary legislation with wide ministerial powers to make changes? I am just checking; your Lordships understand.

Yesterday in the Commons, the Home Secretary said the Government

“will look at the labour market as a whole across key sectors.”—[Official Report, Commons, 24/2/20; col. 44.]

Was that not done before arriving at the points-based system?

What assumptions have been made about emigration? Can the Minister confirm that there is not a pool of economically inactive people available to take up the low-skilled jobs, about which there has been much discussion? Employers have been told they will have to adjust how they operate. How have they responded?

Much has been and will be said about carers. One of those who have spoken is my noble friend Lady Thomas of Winchester, who is in hospital at the moment but emailed me this morning saying that she is “absolutely incandescent”, so I said I would quote her email. She says:

“I am absolutely incandescent about the stupid lack of flexibility for care workers … What may not be realised is the extent to which refugee families settled here (for example from war-torn Somalia) have family members scattered all over Europe who now can travel freely here. They are hard-working carers and often regard those they care for as part of their own family. It is just so shaming that we are turning our back on such caring people, labelling them as ‘low-skilled’.”


I am sure she could have gone on, and I am sure other noble Lords can and will.

It is not possible, obviously, to mention today all the sectors that will be affected, but I want to mention the creative industries—performers and so on—because we are told there will be no change to existing routes. However, many agents and promoters have previously engaged EU performers only. They will need to get into the bureaucratic world of certificates, sponsorship and so on, and they are asking: what will be the “right talent”? I put that term in quotes, as it is the term the Government use and want to encourage. All this and more is very relevant to our economy. How easy will it be for UK creatives to work elsewhere? It will be quite reasonable for there to be reciprocity between nations; if we are negative about people coming in, it will not be surprising if others are too.

There has been much discussion about the lack of time to get the new arrangements in place. Is there any confidence, outside Government, that the changes can be coped with by the end of the year?

Finally, the Migration Advisory Committee has been very forceful about the need for good data. Its recent report says:

“Good data and evaluation are vital to ensure that effective monitoring is in place and necessary adjustments are made in a timely fashion. Without it, there is a danger that the UK, unable to learn from the past, continues to lurch between an overly open and overly closed work migration policy without ever being able to steer a steady path.”


Can the Minister comment? Good evaluation is certainly needed if the Government are to begin to counter the criticisms of what I saw yesterday in the press described as the Government’s

“self-defeating tunnel-vision, exceptionalism and xenophobia.”

Essex: Major Incident

Debate between Lord Rosser and Baroness Hamwee

Monday 28th October 2019 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I thank the Minister for repeating the Statement made earlier in the House of Commons. I endorse what it said about the professionalism of our overstretched and understaffed emergency services. It is almost too awful to imagine the hell that the 39 people who died must have been through or the grief that families the other side of the world and fearing the worst are now experiencing. Our thoughts are very much with them.

The callous, criminal people traffickers must be caught and brought to justice. I have two points to make. First, can the Government give a categorical assurance that departure from the EU will not lead to any weakening of our links with or our partnership and co-operation arrangements with the EU and any of its agencies which we now use and work with to combat people trafficking? Secondly, why do we apparently not have control of our borders at our recognised ports against illegal entry, whether trafficked or otherwise, as the Government have previously maintained is the case? How was a container with such a large number of people inside able to get into this country, apparently on a recognised shipping route through a recognised British port of entry, without being detected and stopped? Surely one way of putting pressure on the traffickers using recognised shipping routes would be the near certainty of detection. I note that the Government are now—belatedly, it seems—increasing the stretched Border Force presence in Purfleet. How many people do the Government think may have been trafficked into this country through a recognised British port of entry in the last 12 months for which figures are available, and how many people have been prevented from entering this country at the port of entry through which they were being trafficked over the same 12-month period?

[Baroness Hamwee (LD)]

My Lords, from these Benches, I, too, thank the Minister. This is a tragedy for so many people. In putting on record our thanks to the emergency services, we need to recognise how difficult it is for them to respond to such a situation. I trust that this—I do not like to use the word “incident”, because it seems to trivialise it—will not be a catalyst for statements about having tougher immigration arrangements. We want to see fair, compassionate and effective immigration rules.

The Independent Anti-slavery Commissioner—I acknowledge that we do not know that these people were trafficked—has recently published her strategy. Her priorities are:

“Focusing on prevention, working with the private sector, encouraging the role of the public sector, raising public awareness”—


sadly, that has certainly been done—and “preventing victimisation”. Can the Minister assure the House that all her priorities will better than adequately funded?

My other point takes up in a little more detail that made by the noble Lord, Lord Rosser. The political declaration regarding our leaving the EU sets out a “framework” for our future relationship and deals with issues that are not in the withdrawal agreement, one of which is security. They are dealt with in the political declaration in language such as:

“The Parties should consider further arrangements …. The Parties … will … work together to identify the terms for … cooperation via Europol and Eurojust … The Parties should consider further arrangements appropriate to the United Kingdom’s future status for practical cooperation … with the view to delivering capabilities that, in as far as is technically and legally possible, and considered necessary and in both Parties’ interests, approximate those enabled by relevant Union mechanisms”.


I am sure noble Lords will understand my emphasis on the rather conditional wording. Do the Government recognise that replicating all our current law enforcement arrangements without any hiatus, which I have heard suggested, is of immense importance, and that will be helped if we make it clear that we regard the EU and its member states as our friends, colleagues and partners?

Places of Worship: Protective Security Funding

Debate between Lord Rosser and Baroness Hamwee

Tuesday 7th May 2019 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement made in the Commons. Is the money announced in the Statement new funding or funding reallocated from another budget heading? The Statement deals with a serious issue, in the light not only of the tragic and sickening events elsewhere in the world but of events on our own doorstep, with the increasing number of attacks causing damage to synagogues, temples, mosques, churches and other places of worship, with the fear that, before long, those attacks could be directed more at worshippers than at just the buildings themselves.

It is a sorry state of affairs when people of different faiths do not always feel safe simply practising their religion. The language of hate that seems increasingly to be used only ramps up the likelihood of such attacks. What is even more appalling is that that language is used by some who hold or seek to hold office in our democratic structures and institutions, and by so doing give that language an air of respectability.

Places of worship should be open to the public as havens for quiet reflection, contemplation, prayer and worship, and as places where an understanding hearing and help may be found. But it is increasingly difficult to keep places of worship open for most of the day because of the threat of attacks in one form or another—increasingly difficult because people, often volunteers, are needed inside to ensure that nothing untoward occurs, and, even then, a single person on their own may feel too vulnerable to want to carry out that role even when they have the time.

We support making more money available for protective security measures as a means of seeking to reduce fear and apprehension for those practising their faith in places of worship. But this cannot be regarded as a solution to the problem. We need, beyond the increased security measures set out in the Statement, resources directed at those who preach or practise hatred or encourage others to do so, and in particular also at those who might find such messages seductive or compelling. That requires further resources not simply for our seriously overstretched police but for community organisations and local government and our schools, for example, which have also been denuded to the bone to the detriment of the extent and level of what they can achieve in this field.

The Government also need to press ahead with a review of the Prevent strategy, identifying and concentrating on best practice and making clear to all that it is directed at reducing and stopping hatred and extremism across the board and not by any particular group within our diverse community.

I hope that when she responds the Minister can provide reassurance—which was not spelled out in the Statement, which contained fewer than 30 words on the involvement of local communities and the Prevent strategy—that what the Government have announced today is but one aspect, albeit important, of a much wider, properly resourced programme to address the increasing trend of hatred and hostility in what appears to be becoming our more fractured society instead of a diverse society that draws its strength, unity and values from that diversity.

[Baroness Hamwee (LD)]

My Lords, I, too, thank the Minister for repeating the Statement. She repeated the Home Secretary’s four specific items. I thought that the third, which was,

“consulting religious communities on what more can and should be done to help them”,

might have been the first one in the list. The amounts of money which are mentioned are welcome, but they are very small when one compares them to the cost to the community of an attack—any sort of attack, but particularly a major attack. The aim must be to eliminate religious hatred.

The focus of this Statement—I do not think it pretends to be otherwise—seems to be on relatively low-level physical security. I believe that the maximum grant, if that is the right term, that has been made is £56,000. Will the Minister tell the House the average, more or less, level of grant that has been given recently—it will be 80% of the total cost of the work proposed—and what can be achieved by that sort of money? I do not know how much CCTV costs; that may be the best of the physical arrangements.

I have a couple of questions for the Minister about the application form on the Home Office website. There are questions about the building, asking whether:

“The exterior and interior … is in a good state of repair and look well maintained”,


whether there is “natural surveillance”—I am not sure what that means—and whether it is in a conservation area. What is the relevance of some of these questions? There are questions about security measures, such as whether personal injury or assault has been experienced in the past 12 months and whether the building is,

“visible and identifiable as a place of worship? e.g. Symbolism/description on exterior of building, building dominate town or hidden away etc”.

My reaction on reading that is that we should be loud and proud about faiths which are practised. Again, will the Minister tell the House the purpose of such questions?

Five million pounds is proposed over three years for training. I appreciate that the Community Security Trust is outside this scheme, but I mention it because I was struck by an email circulated to members of my synagogue asking for volunteers to come forward for specific levels of training, and I realised how much these groups depend on volunteers. Is the Home Office satisfied that all communities that need training will be able to access this funding?

Like the noble Lord, Lord Rosser, I want to ask about the Prevent programme, which is mentioned. What progress is there with the review that is to be undertaken? Will the Minister assure the House that it will be independent and that community organisations and civil society, including of course faith organisations and faith communities, will be given every opportunity to contribute evidence?

Counter-Terrorism and Border Security Bill

Debate between Lord Rosser and Baroness Hamwee

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have some small questions for the Minister, and I hope she has been given notice of them in her brief—I contacted the Bill team yesterday. I think she has largely answered one of them, but I will ask it anyway. In her Amendment 73 and elsewhere, there is provision for a cut-off to the period for representations. I understand the need for that. Is there a timetable for the rest of the process? This is likely to be significant to the passenger, the affected party.

Secondly, in Amendment 76 and other amendments—the Minister has just mentioned this—what is an example of what is not “reasonably practicable”? She mentioned the possible difficulty of getting in touch with the individual. Again, I understand that. Does the term “reasonably practicable” go to that sort of thing? In other words, is it on the part of the person trying to get in touch, or is it looked at from the point of view of the passenger? Destruction of an article or conditions as to the use of the article are likely to be significant in this situation.

Thirdly, I have a similar question about the urgency condition in Amendment 77. Who assesses what is urgent? Is it the Home Office or the commissioner, and is it urgency in the eyes of the passenger? If the Minister can help to flesh out some of those queries, I will be grateful.

[Lord Rosser (Lab)]

Perhaps I may add one further question to those raised by the noble Baroness, Lady Hamwee. It relates to the urgency procedure. The noble Baroness has already asked who makes the decision on what is or is not urgent, but can we also have some feel, presumably based on the experience of the agencies concerned, of how frequently they expect to use this procedure?

--- Later in debate ---

[Lord Rosser]

As has been said on more than one occasion, Schedule 3 deals with border security and the power to stop, question and detain and states:

“An examining officer may question a person for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.


It goes on to say:

“An examining officer may exercise the powers … whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.


There does not need to be reasonable suspicion. That is a very considerable power and safeguards are needed to ensure that it is used in a necessary and proportionate manner. Amendment 67ZA seeks to have such a safeguard in relation to this power by providing that the Investigatory Powers Commissioner,

“must be informed when a person is stopped”,

and,

“make an annual report on the use of”,

this power.

In the schedule, there is provision for the Investigatory Powers Commissioner to keep under review the operation of the many provisions in the schedule and make an annual report to the Secretary of State about the outcome of the review. In the Commons, the Government were asked whether in carrying out the review process and producing the report—under Part 6 of Schedule 3 —the commissioner would be aware of every stop that had taken place. Our amendment provides that the commissioner must be informed of such stops. The initial reply from the Minister in the Commons was “Yes”, but he then went on to say:

“Although the commissioner will not be informed every time someone is stopped, the numbers will all be recorded, and he will have the power … to investigate those stops while doing the review”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 5/7/18; col. 190.]


That appears to be a qualification of the initial answer of yes. The information that the commissioner will get is the numbers—perhaps total numbers—but that may apparently be some time after individuals have been stopped.

This amendment provides that the commissioner must be informed when a person is stopped. Will the Investigatory Powers Commissioner be informed when people are stopped, questioned and detained or only given numbers at a frequency that is unstated? Will the commissioner be told why people have been stopped, questioned and detained, or will he or she have to inquire about that when given overall numbers at some later stage?

As I understand it, the Government’s argument appears to have been that the Terrorism Act 2000 powers on counterterrorism have been used to stop, question and detain people where there is an issue of potential hostile activity, and that the Bill simply regularises what is already happening. If I have understood the Government’s argument, does that mean that they expect no increase in the number of people being stopped, questioned and detained at our borders, particularly at the sensitive border in Ireland between north and south? One could put that interpretation on it, if it is correct that the Government are saying that the Bill simply regularises something that has been happening under the powers in the Terrorism Act 2000. But if not, and the Government expect an increase in the numbers of people being stopped as a result of this provision, on what scale is that increase expected to be? I beg to move.

[Baroness Hamwee]

My Lords, I was not clear whether the noble Lord, Lord Rosser, was using this amendment to seek more information, but we wonder about the operational practicality of its first paragraph. It suggests that if the commissioner is informed of a particular stop, they would have some power or role to respond. More important are the points implicit in what the noble Lord said about keeping records or data. In another context, the noble Lord, Lord Anderson, used the term “meticulous” about keeping records in Northern Ireland, and reference was made to using them as the basis for review of practice. That is very important and although we have hesitations about the amendment’s first paragraph, what has prompted it is important.

[Baroness Williams of Trafford]

As the noble Lord, Lord Rosser, pointed out, Amendment 67ZA would require an examining officer to notify the IPC each time a person is examined under Schedule 3 and require the commissioner to publish an annual report on the use of the powers in the Northern Ireland border area. In relation to the second part of the amendment, as the noble Lord stated, Part 6 of Schedule 3 already requires the commissioner to review the use of the powers and make an annual report.

The police will make a record of every examination conducted under Schedule 3, as they already do with Schedule 7. I reassure noble Lords that the commissioner will be afforded full access to these records on request, and to information on how the powers have been exercised. It would place an unnecessary burden on the examining officer to have to notify the commissioner each and every time a person has been examined.

Regarding concerns about how these powers will be exercised at the border in Northern Ireland, media and political commentary over the summer sought, wrongly, to conflate the introduction of this legislation with the discussions on the Irish border in the context of Brexit and concerns over the possibility of more stringent measures. The Security Minister wrote to the shadow Secretary of State for Northern Ireland on 4 October to address these concerns. I circulated a copy of that letter after Second Reading, so I will not repeat his response in full here. However, I want to reiterate that it is simply not the case that these powers will be used as an immigration control or to interfere with the right to travel within the CTA. Their application to the border area mirrors that of the analogous counterterrorism powers in Schedule 7 to the 2000 Act, which have been in operation for 18 years. In that time, we have not seen a blanket or large-scale use of these powers in the border area. In fact, the number of examinations in Northern Ireland as a whole during 2017-18 amounted to 6% of the UK total.

The Schedule 3 powers must be used only to determine a person’s involvement in hostile activity. The location and extent of their use will be informed by the threat from hostile activity and any decision to use them will be on a case-by-case basis. While the commissioner’s annual report will not provide a location breakdown of where the powers are exercised, for clear national security reasons, he will review police exercise of the powers, including their use in Northern Ireland.

The noble Lord, Lord Rosser, asked whether the Bill regularises stops that are already taking place under Schedule 7. The answer is no. Schedule 3 powers will be used only to determine whether a person is engaged in hostile activity. We have already discussed the definition of hostile activity. Its broad scope is to mitigate a range of threats. Schedule 7 is about persons engaging in terrorism.

I hope that I have been able to reassure the noble Lord, Lord Rosser, and that he will be content to withdraw his amendment.

Counter-Terrorism and Border Security Bill

Debate between Lord Rosser and Baroness Hamwee

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, again on behalf of the Joint Committee on Human Rights, I have Amendments 64 and 65 in this group, as my noble friend Lord Paddick has trailed. The Bill gives powers, as does the Terrorism Act 2000, whether or not there is a suspicion. The JCHR’s amendment would insert a test of reasonableness—that is, a threshold of reasonable suspicion—to stop, search and detain for the purpose of determining whether an individual is involved in the commission of a hostile act, and would allow the exercise of these powers only when it is,

“necessary and proportionate to do so”.

My noble friend said that he was not sure whether the second of those words was necessary, or possibly even proportionate. I find it quite difficult to know when one should articulate those criteria. We are told that they must always apply but sometimes it seems necessary to have the debate.

The committee identified five potential interferences with Article 8 rights in the case of a person subject to the power: he must provide any information or document requested—failure to do so is punishable by a substantial fine and imprisonment; he can be stopped and searched; his personal belongings may be copied and retained; he may have biometric data taken; and he may be detained for questioning. These are of course existing provisions but there are distinctions from the 2000 Act. Under this legislation the purpose of the Schedule 3 power is broader and, we think, more ambiguous than the Schedule 7 power in the 2000 Act, giving a greater risk of arbitrary use of the power.

Professor Clive Walker, whom I have quoted before, has suggested that if the real mischief behind these powers is the Salisbury attack, the purpose should be confined to powers to stop, question and detain without reasonable suspicion on the basis that the person has information or is carrying materials which might relate to crimes under the Official Secrets Act or chemical, biological, radiological, nuclear and explosive crimes. Under the schedule to this Bill, there are also broader powers to retain articles and make copies of materials, including “confidential material”, compared to Schedule 7. Under that schedule to the 2000 Act, material cannot be reviewed or copied unless officers have reasonable grounds to believe that it is confidential.

Under Schedule 3, there will be the oversight of the Investigatory Powers Commissioner, which is of course welcome. The Government also point to the fact that the decisions of the commissioner are subject to judicial review as a safeguard but, as the European court has commented, where statutory powers are wide, applicants can face formidable obstacles in proving that decisions are ultra vires. For that reason, among others, we think it is necessary that the statutory powers are clearly defined and sufficiently circumscribed.

[Lord Rosser (Lab)]

We have Amendment 65A in this group. I shall speak to it briefly. Paragraph 1(4) of Schedule 3 states:

“An examining officer may exercise the powers under this paragraph whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.


As has already been said, under Schedule 7 to the Terrorism Act 2000, an officer can stop a person without having grounds for suspicion that the individual is involved in terrorist activity. However, the draft guidance published by the Government states that stops under Schedule 3 cannot be arbitrary and must be informed by the threat of hostile activity to the UK. The purpose of Amendment 65A is simply to enshrine the wording in the draft guidance in the Bill. The precise wording in the draft guidance is:

“the decision to select a person for examination must not be arbitrary. An examining officer’s decision to select a person for examination must be informed by the threat from hostile activity to the United Kingdom and its interests posed by foreign States and hostile actors acting for, on behalf of, or otherwise in the interests of, those States, whether active in or outside the United Kingdom”.

The objective of this amendment is simply to put that wording in the draft guidance, which provides some sort of safeguard, into the Bill rather than leaving the Bill with, as it appears to be at the moment, effectively a random stop-and-search power.

Counter-Terrorism and Border Security Bill

Debate between Lord Rosser and Baroness Hamwee

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Rosser]

Clause 3 provides for a new offence of obtaining or viewing information online of a kind that is likely to be useful for committing or preparing an act of terrorism. Section 58 of the Terrorism Act 2000 already criminalises collecting, recording and downloading such material. The new offence broadens the type of activity that is potentially criminalised from actively downloading to simply having sight of information, and attracts a maximum of 15 years in prison.

The difficulty once again is that while those we want to catch may well fall foul of the new offence, it is a distinct possibility that those we do not may also get caught up when pursuing their legitimate business, or will be deterred from undertaking some of their legitimate business at all by the thought of getting caught up. As with the previous debate, this could include journalists, academics and those engaged in other research activity, as well as those looking by mistake at information online of the kind likely to be useful for committing or preparing an act of terrorism, or without any intent to act on the material in a criminal manner.

Originally, the Government proposed in the Bill that the new offence should be committed after material had been viewed three or more times—the so-called three clicks test. That was subsequently changed to provide instead for a reasonable excuse defence, which would include cases where the person did not know and had no reason to believe that the information was of a kind likely to be useful to a person committing or preparing an act of terrorism. However, the change could also be interpreted as meaning that an offence could be committed after one click or viewing, rather than three.

The purpose of Amendment 11, therefore, is to minimise the possibility of people carrying out their legitimate business being caught by the new offence by providing that a person commits an offence only if they view or otherwise access material,

“as part of a pattern of behaviour”,

in relation to the offence of accessing the material in question online.

As I said in an earlier debate in which the amendment in question added the words,

“as part of a pattern of behaviour”,

if this amendment does not find favour with the Government, I hope the Minister will say what steps they intend to take to ensure that those with legitimate business in relation to material covered by the clause do not find themselves in difficulty under the terms of the new offence. I beg to move.

[Baroness Hamwee]

My Lords, I have Amendments 12 and 13 in this group. The JCHR accepts that technology has moved on since 2000 but has expressed concern that viewing material online without any associated harm was an unjustified interference with the right to receive information. It was concerned too that the defence of reasonable excuse does not provide an explicit safeguard for legitimate activity. The noble Lord has rehearsed the history of this clause, and the Government’s current position, having excluded the three clicks provision, provides that a reasonable excuse includes but is not limited to situations where,

“the person did not know, and had no reason to believe”,

and so on. We are not reassured that there will be adequate protection for legitimate conduct, so we have proposed Amendment 12, on intention,

“to commit or encourage acts of terrorism”.

At the end of Committee, we will have to collate all the references to intention and recklessness to see whether each of us has been consistent in our arguments, which we may not have been. We want to insert a mens rea of intent.

Amendment 13 adds the phrase,

“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.

If that wording sounds familiar, we have just been through it in Clause 2, so I refer the Minister to my argument then in defence of adding these words.

Counter-Terrorism and Border Security Bill

Debate between Lord Rosser and Baroness Hamwee

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Rosser (Lab)]

In Clause 4, new Section 58B, entitled “Entering or remaining in a designated area”, states that:

“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.


Under Clause 4, the burden of proof would appear to be clearly on the person charged with the offence, not on the prosecution to prove the guilt of the individual charged. The Government have said that that is not the case and that once the reasonable excuse defence has been raised, the burden of proof is on the prosecution, as laid down in existing legislation—Section 118 of the Terrorism Act 2000, which would still apply.

Even with that being the case, it nevertheless appears odd that a new section should say something incorrect: that the person charged with the offence of entering or remaining in a designated area has to prove that they had a reasonable excuse for being there, rather than the prosecution having to prove that they did not have a reasonable excuse. Our amendment would rectify this apparent anomaly by removing the Bill’s requirement for the person charged to prove they had a reasonable excuse as their defence, and instead make it a defence for the person charged simply to state that they had a reasonable excuse for entering, or remaining in, the designated area.

If the wording of the amendment does not find favour with the Government, I hope that its intention does and that the Government will agree to come back with an amendment of their own to new Section 58B at Report. We surely cannot agree to a clause which says the opposite of what is intended and is in apparent conflict with the terms of the legislation. I beg to move.

[Baroness Hamwee (LD)]

Perhaps I can ask both the noble Lord and the Minister a question: first, one to the Minister. Is the requirement for proof found in any other provision for reasonable excuse? I have been looking during the past few minutes; I could not find an example, but I did not get my iPad out to start reading through the whole of the Terrorism Act.

Secondly, I see the attraction of the term “state”. On who has to show what and in what order, we have been referred to Section 118 of the Terrorism Act. The terminology of that is “adducing evidence”. I am not sure whether the term “state” used by the noble Lord, Lord Rosser, is intended to be the equivalent of “adduce evidence”.

Immigration

Debate between Lord Rosser and Baroness Hamwee

Thursday 25th October 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement made earlier in the House of Commons. I shall not launch into a tirade against the Home Office and its leadership for yet another display of its own all-too-often uniquely insensitive way of handling immigration issues, or its belief that simply by announcing that the “hostile environment” has now been rebranded the “compliant environment” all the problems will be solved, or the impact on the department’s culture of the infamous net migration target of below 100,000. I think that we have reached the stage of despair. I will confine myself to asking a number of questions. The Statement makes reference to,

“an urgent internal review into it, which I am publishing today”.

Is the full review being published, or have any parts of it been removed before publication?

The Statement says that the law is that the provision of DNA evidence should always be voluntary and never mandatory. If that is a muffled way of saying that the Home Office acted illegally, does it mean that the Home Office is now liable to legal action from those who were told that it was mandatory for them to provide DNA evidence and because of that did so?

What form and level of compensation and reimbursement do the Government intend to offer to those affected by what the Statement describes as the unacceptable demands for the provision of DNA evidence? If the Home Office has in its records DNA evidence obtained through unacceptable demands, has that evidence now been deleted and, if not, why not?

According to the Statement, the internal review,

“outlines a number of areas in which guidance was unclear or wrong”.

At what level in the Home Office would such guidance, which presumably includes guidance on what actions are within the law and which are not, have been cleared? Is it at ministerial level, Permanent Secretary level or legal officer level?

Immigration cases where the provision of DNA evidence had been made a requirement were brought to the attention of the Home Office at the end of June. Why has it apparently taken so long for any Statement to be made—some four months?

The Statement makes reference to Operation Fugal, in connection with which the majority of cases so far identified have been found. The other areas relate, almost unbelievably, to adult dependent relatives of Gurkhas and Afghan nationals formerly employed by the UK. The Statement says that, so far, it is known that three schemes have been affected. Are those the three areas to which I have just referred or are they three others and, if so, which schemes?

It is almost inevitable that, at times, something will go wrong in the performance and delivery of a department’s business—no organisation can be perfect the whole time—but there seem to be rather too many problems at the Home Office. No doubt the substantial reductions in personnel have contributed—they certainly have not helped—and the approach to pay increases in the Civil Service in recent years will not have exactly boosted morale. But what is disturbing is the time it takes for some of these problems to come to light. This is once again an issue in this case.

The internal review has apparently covered oversight arrangements relating to the use of DNA, which I presume were not as effective as they should have been, but where does responsibility for having effective governance arrangements within the Home Office lie? Which committee or board within the Home Office has responsibility for ensuring that effective governance arrangements exist which will at least prevent serious misuse of powers taking place for any length of time, if not stop them occurring in the first place? Who chairs that board or committee with that overall responsibility? Indeed, is there a board or committee with that responsibility? What is the role of the Home Office Audit Committee, if any, in this regard? What is the role of the Home Office board, if there is one, and the role of its non-executive directors in this area of effective governance arrangements? I hope that the Minister will be able to say or write something about where responsibilities lie higher up the food chain in the Home Office in that regard, if not today then at a later stage.

The apology in the Statement from the Home Secretary for what has happened is welcome. His Statement commits him to a review of the structures and processes that we have to ensure that they can deliver an immigration system which is fair, humane and fit for the new immigration system that the Government say they will bring in for when we leave the European Union. I do not doubt for one moment the Home Secretary’s sincerity, but words are easy. It is when it comes to implementation and delivery that it all too often seems to go wrong at the Home Office. That is the issue that he has to solve in any revised or new immigration system, as well as making sure that the existing system can cope with all the applications from EU nationals living in the UK seeking to settle their status post Brexit.

[Baroness Hamwee (LD)]

My Lords, I too thank the noble Baroness for repeating the Statement. In the interests of time, I have edited the questions that I wish to ask so as not to repeat those of the noble Lord, Lord Rosser, which were all very good and pertinent.

The Minister tells us that this is in effect an apology to those affected. Will the Home Secretary contact the individuals affected to give them a personal apology? That seems the proper thing to do, because the events that we have heard about must have been quite devastating for some of those affected. Instructions have been given that officials must not seek DNA evidence on a mandatory basis. Can we be assured that “mandatory” will be given quite a wide meaning? If I were told that I was unlikely to be believed if I did not provide DNA evidence, I would regard that as mandatory, or something very close to it. A new task force has been set up, and we have heard about the external oversight, but is the task force comprised of Home Office officials? Is it they who will give advice and support, and are those affected going to be told that that advice and support will be available to them?

On reimbursement, the words in the Statement are, “looking to reimburse”. I am not suggesting that an attempt has been made to find weasel words—it is a fairly common way of saying “we will reimburse”—but I would like to hear that this is a little more than a hope, and without requiring the release of the claim, which I think was the point touched on by the noble Lord, Lord Rosser.

During the Joint Committee on Human Rights inquiry into what happened in the case of the Windrush generation—I am a member of that committee—we were concerned to know what action was taken when errors were discovered, with regard to individuals. That is perhaps another way of asking what sort of internal audit is in place and what steps are taken when it is found that mistakes have been made by individual officials. In saying that, I am not seeking to blame officials: I believe that those who operate the system seek to apply what they understand to be Home Office policy, sometimes expressed, sometimes implied.

The Statement refers to,

“how to address the root causes”,

of the problem. The “committed people”—I use the Home Secretary’s term—who operate the system will naturally seek to achieve what the politicians are aiming for: they take the detail and the tone from them. I think that happened in the case of the Windrush generation, and the hostile or compliant environment is not, to use the words of the Statement again,

“fit for the modern world”.

That is why the Liberal Democrats have recently agreed as our policy that processing immigration and asylum applications should be taken away from the Home Office, with a new dedicated unit set up. This scandal is an example of why it is important to ignore political pressure and work fairly and lawfully in processing applications.

Crime (Overseas Production Orders) Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Report stage (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Lord Rosser]

The Bill extends the ability of law enforcement agencies through overseas production orders to obtain electronic data held by service providers overseas for the purposes of fighting serious crime, including terrorism. Since the assumption is that an agreement with another country will be reciprocal, the terms of the Bill when implemented will also, in reality, allow law enforcement agencies in that other country with which we have a reciprocal agreement to more easily obtain electronic data held by service providers in this country. But the Bill does not appear to provide adequate safeguards against confidential journalistic material being handed over in a way that results in sources losing their anonymity. We thus appear to have a Bill that potentially compromises the position and values of our free press. If sources of information do not feel that their anonymity will be protected, they are much less likely to provide information to journalists—information that might bring to light corruption, fraud, sexual offences, adverse environmental activity or failings by large organisations or government, for example, that those involved might wish to keep secret.

Clause 12 requires that where an overseas production order is made in respect of confidential journalistic data, it must be made on notice. The agency applying for the overseas production order would have to judge whether the material sought was ordinary or confidential journalistic material, but there is no guarantee under the Bill as it stands that the journalist, or indeed media organisation, will be able to make representations to the court. There is no requirement in the Bill for the journalist or media organisation that acquired the confidential material to be informed. The judge has a discretion to notify the journalist but not a duty. Without a requirement to notify the journalist or media organisation, take representations from them and have regard to what they say, there is no means by which journalists or media organisations can seek to protect their source.

This amendment seeks to address this concern by providing the right of journalists or media organisations to be given notice that an order in respect of confidential material is being sought, and to then be able to make representations to oppose the making of an order involving such journalistic material. It would also provide that the judge must be satisfied that there is a public interest that overwrites the confidentiality of the data sought before an order is made. If the Government have concerns that there might be journalists whom they would not wish to inform of an application for an order, then the advice could be given to the media organisation for whom that journalist worked.

The amendment seeks to ensure the continuation of an important safeguard. I beg to move.

[Baroness Hamwee]

My Lords, from these Benches we had an amendment in Committee requiring the court to be,

“satisfied that … data … is not confidential journalistic data”.

We were concerned that the Government had not consulted the NUJ or other organisations; I wonder whether they have had an opportunity for a discussion since then. The News Media Association certainly made its views clear with its concern about what it described as an artificial distinction between “journalistic material” and “confidential journalistic material” and what might flow from that distinction.

New subsection (8C)(b) proposed in Amendment 6 seems to make all data held by a person acting as a journalist “confidential journalistic data”. I see the attraction in that but I wonder whether this is the place to treat material differently from how it is treated elsewhere in UK law—in other words, I wonder about making that provision apply for the purposes of this piece of legislation only, which is a fairly small piece of the jigsaw of legislation that applies to journalism. Can the noble Lord, Lord Rosser, confirm when he winds up whether I have read this correctly: is he eliminating a distinction in this piece of legislation only, and only in the circumstances to which it will apply?

With regard to Amendment 11, we support a requirement to give notice of an application. We had an amendment to that effect in Committee, and we have amendments in the next grouping that are an attempt to respond to the Minister’s comments on the issue then.

Crime (Overseas Production Orders) Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Committee: 2nd sitting (Hansard): House of Lords
Monday 10th September 2018 Grand Committee

[Baroness Hamwee (LD)]

My Lords, this amendment is grouped with Amendment 22 in the name of the noble Lord, Lord Rosser. We are both interested in how orders are to be enforced. I have to say that I think both amendments are slightly circular. That might mean that they are elliptical—I am not sure. However, we are probing at this stage; I hope that the Minister will take that point.

There are obvious difficulties with enforcement in respect of data held by an entity that is not in the UK and which does not have a base or assets in the UK. We are told in Clause 6(4)(a) that the provisions apply regardless of where the data is stored. I do not know whether “extraterritorially” in the sense of outside the earth, as distinct from in another country, applies here. I simply do not understand how the technology works.

It seems to me that the enforcement will have two aspects: a sanction for non-compliance and ensuring the actual production of the data. So my first question is: will the mechanism for enforcement be in the co-operation arrangement and, generally, how are we to expect the issues that I have raised to be dealt with? I beg to move.

[Lord Rosser (Lab)]

I shall speak to the amendment in my name, which, as the noble Baroness, Lady Hamwee, said, has in effect the same objective as the amendment which she has just spoken to and moved. The purpose of our amendment is likewise to find out to what extent and by what means overseas production orders can and will be enforced where there is a bilateral or wider international agreement for an overseas production order made by a court in this country and one made in another country and served on a provider in the UK.

In Committee last Wednesday the Government stated that the reference at Second Reading that,

“UK-based providers will not be compelled to comply with overseas orders”,—[Official Report, 11/7/18; col. 929.]

meant that while,

“UK companies are not compelled by UK law”,

to comply with a production order,

“they may be compelled by the other jurisdiction … depending on the country in question”.—[Official Report, 5/9/18; col. GC 143.]

Bearing in mind that considerable progress appears to have already been made towards concluding a bilateral agreement on overseas production orders with the United States in line with the Bill, will an overseas production order made by our courts in respect of an American-based service provider be enforceable—and, if so, how, by whom and with what sanctions available if there is non-compliance?

Likewise, in the light of the Minister’s comment last Wednesday that UK companies might be compelled by the other jurisdiction to comply with their production order, how will such an order made by an American court in respect of a British-based service provider be enforceable, by whom and with what sanctions available if there is non-compliance? In addition, what do the Government consider would be the basis of appropriate and acceptable enforcement arrangements in both directions for any other countries with whom we might conclude bilateral arrangements in respect of production orders under the Bill?

Last Wednesday in Committee, the Government said that,

“it is reasonable to expect that some form of dispute resolution mechanism would be in place to help determine any differences in the event that there is a dispute over compliance with an order”.—[Official Report, 5/9/18; col. GC 141.]

That statement was, of course, in line with what the Government had said in the Minister’s letter of 20 July following Second Reading. That letter referred to the Government expecting any bilateral agreement to include a mechanism for escalating any dispute over compliance.

But should the letter not have said that the Government “will” require a bilateral agreement to include such processes and procedures, rather than just that they expect that it will? Would the decision of such a dispute resolution mechanism be legally binding? If so, on whom? If not, what would happen if the dispute resolution mechanism failed to resolve the dispute? As I understand it, some service providers have welcomed the Bill because it will provide them with cover when making available electronic data, if done under the Bill’s provisions, from other potential legal proceedings. If that is the case, would that legal protection be provided by the Bill if it was not capable of being legally enforced in one or both directions?

What kind of issues in dispute could be addressed through the suggested dispute resolution procedure mechanism? Who would mediate or arbitrate if such a mechanism was in place? Would there be legal representation? How would the mechanism be activated and by whom? Who would pay the costs? Would the dispute procedure have to reach a conclusion or decision within a fixed maximum timescale? Would the dispute resolution mechanism for any bilateral agreement on production orders with the United States be the same in the United States and the UK, working to the same standard and principles and applying or not applying the same sanctions? If there is to be any enforcement by the courts, through which court would an overseas production order made in this country be enforceable, and through which court would an overseas production order made in the US or another country in respect of a British service provider be enforceable? After at least two years of discussion with the United States on the proposed agreement, the Government must have some specific answers to these questions.

--- Later in debate ---

[Baroness Hamwee]

My Lords, my Amendments 25, 26, 28 and 35 are also in this group. The noble Lord, Lord Rosser, has given notice that he intends to oppose Clause 7 standing part of the Bill. I assume that that is to probe the operation of the clause. I am sure he takes the view that I do—that one would not want to accept that these orders can be made without the possibility of variation, revocation or, in the most general sense, appeal.

On Amendment 24, I am ready to be told that it is not necessary to spell out that revocation or variation can be,

“in whole or in part”.

I realise that a part-revocation is probably a variation. We also find the non-disclosure requirements rather troublesome. Amendment 25 seeks to probe the procedure for opposing the non-disclosure requirements. Amendment 26 is part of the same question about how you appeal against them.

Clause 8 provides for non-disclosure of the existence of an order, as distinct from non-disclosure of its contents. There is something rather concerning about not being able to say that an order is in existence. If a data subject asks the internet service provider, it cannot even say, “We will have to refer to the judge”—or can it? I am not sure. The sanction here, presumably, would be contempt of court. I have already referred to whether that is an effective sanction in the case of an overseas or international body. I was reminded of super-injunctions when I read this. They do not have the greatest reputation. Presumably the Minister will remind us that disclosing the existence of an order to a subject could hamper the work of law enforcement or security. All my instincts are that somebody who is affected by an order should know about it. Perhaps the Minister could take this opportunity to explain the operation of it.

Amendment 35 is another probing amendment, about how one appeals, in this case against Clause 13. But my major concerns are around Clause 8. I beg to move.

[Lord Rosser]

As the noble Baroness, Lady Hamwee, said, I have tabled a Clause 7 stand part debate, which is intended to provide an opportunity for the Government to explain in a bit more detail why this clause is deemed necessary and how and in what circumstances it is intended to operate. In what kinds of circumstances do the Government envisage it being necessary to vary or revoke an overseas production order, and how many times has that happened in respect of domestic production orders, compared to the number of such domestic orders issued? Does the varying or revoking referred to in Clause 7 apply to overseas production orders made in this country or to such orders made in the country with which we have a bilateral agreement and applying to British service providers—or, indeed, does it apply to both? In what circumstances would the Secretary of State, rather than the appropriate officer who applied for the order or any person affected by the order, be likely to seek to vary or revoke an overseas production order?

Will the application to vary or revoke be heard by the judge who made the original order, and what information, or indeed anything else, will be required from an applicant seeking to vary or revoke an overseas production order before court time is granted to hear their application? What will be the test, if any, in terms of the extent or otherwise of a proposed variation being sought before it can be considered or granted? Does the reference in Clause 7 to the requirements in Section 4(2) to (6) continuing to be fulfilled, or being fulfilled, apply to the variation that is being sought or to the original overseas production order as altered by the variation?

Once an overseas production order has been served, the recipient has, I believe, as a standard, seven days to act on it. Presumably that means that an application to vary or revoke by the recipient as a person affected by the order has to be made within those seven days. Is that in fact the case? If it is, is it not a very short period of time, particularly if it is also envisaged that a judge will have to deal with any application to vary or revoke within that seven-day period, or will a judge be able to extend the period already laid down for the electronic data specified in an overseas production order to be produced if an application to vary or revoke has been made?

Finally, what will be the maximum period of time within which applications to vary or revoke must be determined by a judge, and who will be given notice of an application to vary or revoke an overseas production order, and in what circumstances, and thus have the opportunity to support or contest the application?

--- Later in debate ---

[Lord Rosser]

I will be very brief. Clause 9(1) states that an overseas production order that is not served within a period of three months is automatically quashed. My Amendment 29 would reduce the three months in the Bill to two months. The purpose of the amendment is to give the Government the opportunity to say why it is felt that as long a period as three months is needed before an order is quashed if it has not been served.

As the Minister said in the previous discussion, the purpose of the Bill is to provide a much faster means of obtaining electronic data than is currently available under the mutual legal assistance process, which can and does take months. Bearing in mind the need for greater speed in respect of serious crime and terrorism offences or investigations, why could it then take as long as three months to serve an overseas production order once it had been made, and for the specific requirements set out in Clause 4(2) to (6) to be met? Why would two months, as suggested in this amendment, be insufficient, and if it is deemed by the Government to be insufficient, in what kind of cases or circumstances would that be the position? I beg to move.

[Baroness Hamwee]

I have not got a lot to say on this—but I will say it nevertheless. On Amendment 29, I agree with the noble Lord, Lord Rosser, that if there is an order it should be served quickly—although my reaction was, “If it’s so objectionable that the period should be reduced, there shouldn’t be an order at all”. However, in light of his remarks, perhaps I misunderstood the direction in which he is going.

Amendments 36 and 37 are grouped with Amendment 29 and relate to Clause 14, which is about “means of service”. Clause 14(3) refers to service on a person outside the UK by delivering the order or notice, or whatever it is, to that person’s office or place of business. I wonder whether a person could be outside the UK but at the same time have an office in the UK—unless its base is outside. I am not quite sure what those words mean in context.

Amendment 37 relates to Clause 14(3)(a), which says that service can be made by delivery to a place,

“in the United Kingdom where the person carries on business or conducts activities”.

What does “conducts activities” mean if it does not amount to carrying on business? Is this just a bit of belt and braces? If it is, I would not take exception, but I wonder whether the phrase is normally used, because it seems to be part of carrying on business.

--- Later in debate ---

[Baroness Hamwee]

I am a bit confused, but that last point is not something to answer now. It is about whether we are talking about the present or whether, having been at an address in, say, Newcastle at one point, and you have moved to Liverpool, there can be service in Newcastle.

[Lord Rosser]

Bearing in mind that the Minister has said, without making any commitment, that she will reflect further on the amendment, I beg leave to withdraw it.

Crime (Overseas Production Orders) Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Grand Committee

[Baroness Hamwee]

My Lords, I should just say that I accept that the terminology is used elsewhere: one of my amendments objects to its use elsewhere. I am still troubled by how it applies here, as I am not sure how one would apply for the revocation, but I will of course go back to look at it.

[Lord Rosser]

I thank the Minister for her response. I will reflect on what she said about Amendment 12. I was not entirely clear about her response to my question: if a view was taken that the term “terrorism investigation” was being rather loosely interpreted by a party to an international agreement on an overseas production order, how could that decision be challenged? I may have missed her response but, if so, could she repeat it?

Immigration Detention: Shaw Review

Debate between Lord Rosser and Baroness Hamwee

Tuesday 24th July 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement. I cannot say that I have read the Shaw report. I was probably in a very similar situation to the Minister, in that I received it only an hour or so ago. Inevitably, that rather restricts what one can say about it. One thing that I have noticed is that, under the acknowledgements at the beginning and in the foreword by Stephen Shaw, there is a date: April 2018. Why is this report being brought to Parliament only in July 2018 and on the last day, effectively the last afternoon, before the Summer Recess? What exactly has been going on since then, if I am correct in thinking that he submitted his report in April 2018, which has prevented the report being published?

The report that we have—this second Stephen Shaw report into immigration detention—does not say that everything is right. It simply says that the situation is better than it was, which is a very different thing. The report is not quite the supportive document that the Statement seems to suggest. Let us look at one or two of the points made in the report.

Last year, it seems that 64% of those detained left detention within a month, and 91% left within four months. It depends on what one’s definition is, but detention was meant to be only for a short period of time, pending removal. Last year it was found that over half of those in immigration detention were released back into the community—a point made by Stephen Shaw in this report. So if more than half in immigration detention were released back into the community, why was their detention needed at all? The Government’s Statement says that,

“immigration detention is only for those for whom we are confident that other approaches to removal will not work”.

We are talking about large numbers of people who are detained and not removed but are released back into the community. A number of people seem to be detained who should not be, which is a point made by Stephen Shaw in this report.

Stephen Shaw comments on the issue of indefinite detention and time limits, saying:

“I have not directly considered the case for a time limit on detention”,


so we do not actually know what his view is on that issue. But he says in his foreword that,

“the number of people held for over six months has actually increased. The time that many people spend in detention remains deeply troubling”.

That is a point that I do not think was highlighted in the Government’s Statement on the report. Why has the number of people held for over six months increased? Do the Government agree with Stephen Shaw that the time that many people spend in detention remains deeply troubling?

Virtually all the population reduction in immigration detention has been on the male side, while the number of women in detention has fallen by a much smaller percentage. Yet there is a high level of vulnerability among women detainees—the very people one would have thought should not have been detained. Can the Minister say why that has happened?

The report deals at some length with the adults at risk policy. It was introduced by the Home Office and does not appear to be working properly in its objective of reducing the numbers of vulnerable people in detention. In his visits to immigration removal centres, Stephen Shaw found many people who he felt should not be there, and he comments in his report that,

“every one of the centre managers told me that they had seen no difference in the number of vulnerable detainees”,

and that in some cases the numbers had gone up. He also calls for,

“a more joined-up approach between the Home Office and its partners across Government”,

which, he says,

“applies particularly to the Ministry of Justice”.

In the section in the report on alternatives to detention, Stephen Shaw draws attention to some of the consequences of the policies restricting access to services that go under the umbrella of the hostile environment, which I believe has now been rebranded as the compliant environment. While he says in his foreword:

“Some of what I say in the pages that follow reflects very well upon the Home Office, the Department of Health and Social Care, and NHS England”,


he goes on to say that:

“I have found a gap between the laudable intentions of policymakers and actual practice on the ground”.


He also comments that,

“the Home Office’s strategy of expanding capacity by adding extra beds into existing rooms had exacerbated overcrowding and created unacceptable conditions”.

Why has the Home Office’s strategy led to the arising of that situation, upon which Mr Shaw has commented adversely? He repeats again in his report his concern that,

“more needs to be done to ensure that individuals who are at risk are not detained”.

I conclude by raising three questions for the Government in addition to those I have already asked. We are in a situation where the Chief Inspector of Prisons, the all-party parliamentary groups on migration and on refugees, the Bar Council, the British Medical Association and NGOs have all called for an end to indefinite detention. Do I take it from the Statement that the Government are still not prepared to commit to that objective? Perhaps the Minister could confirm that one way or the other.

I think I am also right in saying that the previous review called for an absolute exclusion on pregnant women in detention. But as I understand it, in 2017, 53 pregnant women were detained, almost all of them entirely unnecessarily, and were subsequently released into the community. If pregnant women are still being detained, will the Government commit now to an absolute exclusion of pregnant women and children from immigration detention? There is also currently no proactive screening process so that survivors of sexual and gender-based violence and others who are recognised as vulnerable under the adults at risk policy are identified before they are detained. Will the Government commit to introduce a proactive screening process to achieve this objective?

Finally, now that we have had the follow-up Shaw review, how will the Government ensure that the detention estate continues to be reviewed and assessed? I note that the Statement made reference to the review of the adults at risk policy, but there is more to it than simply that policy, vital and important though it is, so I ask that question once again—bearing in mind that the Shaw review has once again said that the situation is far from what it should be.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for repeating the Statement regarding adults at risk and vulnerable people in the detention system. I have always thought that it would take someone very resilient not to become at risk or vulnerable to the effects of detention once detained, however they started that process. That applies even to definite detention, and far more to indefinite detention, when the absence of hope is added to the other conditions experienced. I was grateful to the Minister’s colleague Caroline Nokes, the Immigration Minister, whom I met with the noble Lord, Lord Hylton, the other day, for confirming the Home Office’s aspiration of a humane system. I welcome the direction in which the Government are going on this.

I will mention again a report to which I have referred before in your Lordships’ House—the recent report by the Red Cross on the long-lasting impact on mental health of everyone surveilled after release from detention; in other words, release from physical detention is not the end of the experience.

There is always talk of numbers and percentages, which is helpful, but it is worth remembering that each person detained is an individual. The silver lining to the Windrush experience was that it rather confirmed that; that is certainly how they were seen by the public during the Windrush reports.

A number that I find shocking is the standard number of days to which the Home Office works in dealing with asylum claims. Also, if someone does not go when he is told to leave the country, he is automatically regarded as a flight risk, to the extent that even when he reports to the Home Office he is picked up from there and put into detention.

I am a member of the Joint Committee on Human Rights, which this morning announced a new inquiry into immigration detention, because human rights—particularly Article 5 of the convention—are engaged. The committee was planning this inquiry anyway, but the evidence that we heard in an inquiry into the Windrush generation’s experience particularly drew our attention to issues including access to legal advice, the possibility of challenge to detention and accountability.

Policy is always only a part of the story. Implementation and practice are the other very important side of the coin and, of course, that is very much what Stephen Shaw has focused on. He and Mary Bosworth deserve our thanks for all the work that has gone into this report. I have not been able to read this door-stopper yet—it is about half the size of the last door-stopper, but even so—but I will. It seems to me that the reasons for detention given in the Statement rather illustrate that detention is not, as we are so often told, treated as the last resort, although I believe that it should be the very last resort.

I want to pick up a number of points made by the Minister. She mentioned that the team of special detention gatekeepers has been set up—this is part of the recent history—but the gatekeeper process does not seem to have been working as well as planned. The Statement refers to ensuring that decisions to detain are reviewed. What about the initial decision? Should there not be investigations prior to detention to confirm that there are no indicators of vulnerability?

The Statement also refers to immigration bail, described as all being “good work”. Of course, it has been very welcome, but it has not been unfailing. The Minister will recall our exchanges about the problems that detainees have in accessing education. Importantly, it is clear that detainees do not all know that they can apply for bail at any time.

With regard to alternatives to detention, we have heard the organisations that the Home Office is going to work with, but can the Minister assure us that work will go on with other jurisdictions where there are very different practices and that the subject will be not just those whom the Home Office regards as vulnerable but much wider? Mr Shaw comments rather delicately that he is not certain that there has been significant investment in this since the first report.

I must leave time for the Minister to respond—

Immigration (Guidance on Detention of Vulnerable Persons) Regulations and the Detention Centre (Amendment) Rules 2018

Debate between Lord Rosser and Baroness Hamwee

Wednesday 27th June 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am grateful to the noble Lord, Lord Ramsbotham, for bringing this Motion forward. I start from the position that immigration detention does not do anybody any good. I find it hard to think that one would be liable to be harmed, whether one is vulnerable—a term I do not find easy—or not. Which of us would be robust enough?

In a previous debate, I quoted from Never Truly Free, a recent British Red Cross report on the humanitarian impact of the UK’s immigration detention system, including the mental health of detainees after release. It concluded:

“Immigration detention has a known negative impact on mental health. Most detainees will have experienced some form of trauma in their life before detention, the effects of which can be exacerbated in detention”.


It also stated:

“The damage done by detention does not simply go away once someone is released and the negative impact on mental health persists long after detention”.


I say this because I do not want to belittle, by implication, the experience of detainees who are not vulnerable—or at any rate, not “particularly vulnerable”, as per the phrase in Section 59—and to make the point that the definition of torture might be a little less difficult if we detained fewer people and for no longer than a maximum fixed period.

I have some sympathy with those who struggle with that definition, but this will always be a problem when you start from the wrong place and grapple with something that is not necessary. As has been asked, why is it necessary to distinguish torture from ill treatment for this purpose? The noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Lister, referred to Shaw—like Leveson, he must have got used to becoming a noun. It prompts me to ask whether he had any input in the content of these statutory instruments. Indeed, has he approved the definition?

As we have heard, we have been briefed by organisations with considerable experience of both working with victims of extreme cruelty and advancing the understanding of torture. They are very critical of the Government’s approach, both the detail and the principle. As we have also heard, the court did not require the Home Secretary to define the term.

What are we to make of the paragraph on “Consultation outcome” in the Explanatory Memorandum to the two instruments? It states that,

“the Home Office has discussed the proposal”—

that is, the definition—

“with interested non-governmental organisations (NGOs). The Home Office has considered comments made by NGOs and has committed to engaging with them as the detailed guidance and training for decision makers are developed”.

I was not aware that NGOs had the limited opportunity described to give their views to the Home Office, but those views are not reported in the memorandum. I take it that they were not accepted. As a matter of good practice, it seems to me that the memorandum should be much clearer on this.

My confidence in the process was not helped by the Explanatory Note to both instruments. It states:

“A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen”.


I do not know about a financial impact, but by definition there will be an impact on those undertaking Rule 35 assessments and on the numbers held in detention. There must be an impact. Medical practitioners have a difficult enough task in making assessments with time and other constraints and in a place and in circumstances which are far from the safe and supportive environment needed to work with such patients—I use the term deliberately—and which are likely to contribute to ongoing trauma, to exacerbate symptoms and to impede the healing process.

I am also interested in the concepts of control and powerlessness in the definition. At any rate, they certainly allow for the argument that a victim with a particular history of being controlled and powerless will experience detention as torture. With regard to that history, what is meant by powerlessness? The noble Lord has raised this point. Will the Minister confirm that the definition is not confined to a physical situation and that control and powerlessness may be different for different people?

Under the draft guidance, an individual is regarded as at risk—we discussed this at Questions the other day—if they are,

“particularly vulnerable to harm if placed or remaining in detention”.

Why is this in addition to the history? Why has it been added? In fact, as a matter of the construction of paragraph 7, is that something that the individual needs to declare, or is it an objective matter for the third party? I have read the paragraph several times and I am not sure.

I understand that the guidance introduces a wider range of immigration factors than before, placing far greater emphasis on non-compliance. My final question is: does this not of itself affect the balance, which we are told is sought, between,

“protecting the vulnerable and ensuring the maintenance of legitimate immigration control”?

That comes from paragraph 1, on the purpose of the guidance.

In summary, these Benches support the Motion. We share the noble Lord’s regret and our regret goes much wider, too.

[Lord Rosser (Lab)]

I add my thanks to the noble Lord, Lord Ramsbotham, for providing us with this opportunity to debate this issue of concern over the Government’s actions and decisions on the welfare of vulnerable people in immigration detention. We agree with the concerns that the noble Lord expressed about how the Government are dealing with this matter and his proposals for addressing the situation.

As I understand it, it is meant to be Home Office policy that vulnerable people, which includes the victims of torture, should be detained only in exceptional circumstances, for example, if they are likely to offend or cause a public safety risk. However, that does not always appear to be the case, because in the year ending last March there were apparently well over 26,000 exceptional circumstance cases in immigration detention. Once again, as I understand it, these are not even people whose removal is imminent, since about half are released back into the community.

In his first review, Stephen Shaw said that detention in and of itself undermines welfare and contributes to vulnerability. Half a dozen court cases in the last few years have drawn attention to the unacceptable treatment of detainees. I believe that the death rate among detainees in immigration detention has risen. Last year, 11 people died in custody.

The situation reached such a state that in 2015 the now Prime Minister, then Home Secretary, asked Stephen Shaw, the former Prisons and Probation Ombudsman, to conduct a review of the welfare of vulnerable persons in detention. His report concluded that the safeguards for vulnerable people were inadequate, that immigration detention was used too often and for too long, and that the impact on mental health increases the longer detention continues. However, in implementing their adults at risk policy, the Government did not fully address the concerns raised by Stephen Shaw. Indeed, the Government’s detention centre rules and guidance on the detention of vulnerable persons seemed to increase the risk of harm. In its first 10 weeks of implementation, the Government’s adults at risk policy was applied incorrectly in almost 60% of 340 cases. Torture survivors continue to be detained and torture is one of the 10 indicators of risk in the adults at risk policy.

The guidance on the detention of vulnerable persons increases the burden of providing evidence on the vulnerable individual, since specific evidence will be needed that detention is likely to cause harm and the risk of harm in detention has to outweigh a range of immigration factors, such as the risk of absconding. In effect, it requires a person to prove that they will not abscond, which one would have thought was extremely difficult to do. The guidance already includes a broad range of immigration factors that can justify detention, even of torture survivors.

The result has been that the release rate, following a report designed to screen torture victims out of detention, has fallen considerably. In the third quarter of 2016, before the policy change, nearly 40% of those in the report in question were released. In the first quarter of 2018 that number had fallen to just 12.5%. Those figures were borne out in a 2017 High Court ruling in a case brought against the Home Office that the adults at risk policy unlawfully imprisons through immigration detention hundreds of victims of torture. The Home Office had previously decided to narrow the definition of torture so that it refers only to violence carried out by state actors. Apparently, it now excludes vulnerable survivors of non-state abuse, such as by ISIS, Hezbollah or the Taliban.

The Government have tabled the two statutory instruments we are discussing in response to the High Court’s ruling. However, the organisation that brought the successful case against the Home Office has said that the new torture definition is inappropriate and too complex for caseworkers and doctors to apply to specific cases, and that even when applied correctly the definition will exclude a group of victims of severe ill treatment who do not fall within the other indicators of risk.

As I understand it, the Government were actually asked by NGOs to await the publication of Stephen Shaw’s re-review into the welfare of vulnerable people in detention to allow consideration of his findings before laying changes before Parliament. The Government have now had the Shaw re-review for some two months, but others have not been given a chance to consider his latest recommendations since, subject to the Minister saying otherwise, it has not been made available by the Government.

The Government’s argument for not allowing consideration to be given first to the findings of Stephen Shaw’s re-review appears to be that they could be in difficulty if they have not produced a revised adults at risk policy within 12 months of the October 2017 High Court judgment. But did the judgment specifically say that, and did it say that the Government should not await the outcome of any re-review before revising their adults at risk policy? The Government have had the Shaw re-review for two months. There is nearly a further four weeks to go before the Summer Recess, without taking account of the two-week short sitting in September. If this Government want to speed up processes, they have previously shown that they can do so. They could have, and still can, in this case and ensure that there is an opportunity to consider these two statutory instruments while they are still drafts in the light of the findings of Stephen Shaw’s re-review. Doing so might avoid the Government having another uncomfortable day in court.

Criminal Finances Bill

Debate between Lord Rosser and Baroness Hamwee

3rd reading (Hansard): House of Lords & Report stage (Hansard): House of Lords
Tuesday 25th April 2017 Lords Chamber

[Baroness Hamwee]

My Lords, when the noble Lord responds to the debate, will he tell the House whether he thinks “I haven’t a clue” is purported compliance.

[Lord Rosser]

In light of the last comment from the noble Lord, Lord Hodgson of Astley Abbotts, one can only hope that the points he made will not leave the Minister stumped. I hope it gets better.

I thank the noble Lord and the noble Lord, Lord Faulks, for tabling these amendments, since they enable me to raise a concern that I expressed in Committee about the Government’s intention to create a new office for professional body anti-money laundering supervision through a statutory instrument, without any apparent reference to such a body in the Bill that we are currently discussing—which is why the noble and learned Baroness, Lady Butler-Sloss, had to raise her question. Nobody has a clue what the Government intend because they have not chosen to put anything in the Bill to enable us to have a discussion about it. It was only in a government document issued around the time of the Bill that the Government declared their intention to set up this body.

A briefing that no doubt we have all received from the Solicitors Regulation Authority refers to the amendment from the noble Lord, Lord Hodgson of Astley Abbotts, as “proposing” the creation of an office for professional body anti-money laundering supervision—which could, perhaps wrongly, be interpreted as meaning that the Solicitors Regulation Authority was unaware that that is what the Government were already proposing, albeit keeping rather quiet about it as far as proper parliamentary scrutiny is concerned.

--- Later in debate ---

[Lord Rosser]

I am not sure whether I should come in now but I just take this opportunity to thank the Minister and her ministerial colleagues in the Bill team for their willingness to meet and engage in what have been constructive and helpful discussions on not only provisions that are in the Bill but also provisions that are not, since it is with the latter that most differences of view or approach have centred. I also thank my Front-Bench colleagues for their hard work, not least—although he is not in his place—my noble friend Lord Kennedy of Southwark, who has not been exactly short of commitments in respect of other Bills as well. Finally, I thank the staff in our own office, not least Grace Wright, for their help and advice in navigating our way through this Bill.

[Baroness Hamwee]

My Lords, I echo those thanks to the Minister and the Bill team. As several people have said—most frequently the noble Lord, Lord Rosser —it is what is not in the Bill that has exercised us most. I can see an enormous amount of material for Private Members’ Bill in the next Session if we do not have government Bills that we can tack our—“demands” would be the wrong word—concerns on to. But the Minister has done an absolutely sterling job and I hope she gets five minutes to have a bit of a rest before she sets out campaigning. We have the luxury of knowing that we will be back to pursue these interests.

Criminal Finances Bill

Debate between Lord Rosser and Baroness Hamwee

Committee: 1st sitting (Hansard): House of Lords
Tuesday 28th March 2017 Lords Chamber

[Baroness Hamwee]

My Lords, this amendment would provide a new clause on anti-money laundering supervision, requiring supervisory authorities to publish certain information. When the Bill started its passage through this House, briefings to noble Lords from a number of organisations made similar points about supervision, including that there are too many supervisors, there is inconsistency, and there are conflicts of interest since enforcement does not lie very comfortably with promotional activity. The term “a dysfunctional system” also was used. There was also quite a lot of comment about lack of transparency and accountability in the supervisory system, a matter which formed part of Transparency International UK’s analysis of the weakness in the rules. Its report was entitled Don’t Look, Won’t Find.

I am aware of the Treasury’s work and the current call for information but it seemed to me that it was worth pausing particularly on transparency and accountability. As Transparency International explains, these are,

“fundamental components to an effective supervisory regime”.

TI also quotes the Macrory report:

“Transparency is something that the regulator must provide to external stakeholders, including both industry and the public, so they have an opportunity to be informed of their rights and responsibilities and of enforcement activity. However, it is also important for the regulator itself, to help ensure they use their sanctioning powers in a proportionate and risk based way”.


My Amendment 70 is based directly on Transparency International’s report in the light of the recent government announcements.

The supervisors do not necessarily seem comfortable with the system. The Solicitors Regulation Authority comments that the draft regulations—the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017—fall short of requiring the supervisors of anti-money laundering to be fully independent of any representative body. The authority is keen to see where the weaknesses in the system can be addressed ahead of the Financial Action Task Force review next year. It asks us to raise in the context of the Bill the issue that the underlying legal position is in need of clarification to ensure explicit recognition that supervisory bodies should be fully independent from representative ones. I dare say that the Minister, or at any rate her officials, will have seen that briefing. Having focused on transparency and accountability, I beg to move.

[Lord Rosser]

We have Amendment 73 in this group, which is on not dissimilar lines to the amendment moved by the noble Baroness, Lady Hamwee. Amendment 73 would require the Secretary of State to,

“lay before each House of Parliament an annual statement on the money laundering supervision regime and any plans the Government has to amend it”.

At Second Reading, we raised questions about the effectiveness or otherwise of our anti-money laundering system in the light of the billions of pounds in corrupt money that comes into this country each year. Reference has already been made to that point in our earlier debate on the London property market. According to the National Crime Agency, the figure could be as high as £90 billion. The Government’s impact assessment says that this country is unusually exposed to the risks of international money laundering, which is made even more serious by the reality that money laundering is also a key enabler of serious and organised crime, including terrorist financing. The social and economic costs of this are estimated in the Government’s impact assessment at some £24 billion per year. However, despite this far from satisfactory state of affairs, there are, as I understand it, some 27 supervisory bodies in the relevant sectors, which must surely lead to a fragmented approach in the identification and mitigation of risks, and in the approach to enforcement.

Policing and Crime Bill

Debate between Lord Rosser and Baroness Hamwee

3rd reading (Hansard): House of Lords
Monday 19th December 2016 Lords Chamber

[Lord Rosser (Lab)]

My Lords, Amendment 12 is in essence the same as our Amendments 12 and 14 on Report, which we withdrew in the light of the Minister’s response. In accordance with that response, I have since received a letter from the Minister that covers guidance on a PCC’s business case and consultation arrangements, and on the terms and conditions of fire personnel transferring to PCC fire and rescue authorities and to chief officers under the single-employer model.

My purpose in tabling this amendment at Third Reading is to ask the Minister to cover the content of her letter to me in her response today so that it is on the record in Hansard. The letter said that government Amendment 11 on Report meant that,

“the PCC would always be required to publish a response to their consultation, regardless of whether they have local agreement or not”,

and, crucially, that,

“the guidance will fully reflect the issues covered by your amendments 12 and 14”,

on Report, which are now reiterated in Amendment 12, which we are now discussing at Third Reading. The letter also said:

“Whilst this guidance will be owned and issued by APACE”—

the Association of Policing and Crime Chief Executives—

“Home Office officials are part of an advisory group that has been set up to steer the development of the guidance and are working closely with the authors to ensure that it reflects Government’s expectations”.

In other words, the guidance reflecting the Government’s expectations will fully reflect issues covered by our Amendments 12 and 14 on Report, which are repeated now in Amendment 12, which we are now discussing at Third Reading.

If the Minister can place on record in Hansard the key parts of the letter that she sent me following Report, then from my perspective that would achieve the purpose of this amendment. In particular, confirmation of the points that I have just made, and which are referred to in the letter, about the guidance fully reflecting the issues covered by my Amendments 12 and 14 on Report, and the fact that the guidance will reflect the Government’s expectations, would be extremely helpful.

[Baroness Hamwee]

My Lords, I am glad that the noble Lord has dealt with the matter as he has and has sought to have the points put on record. I wonder whether, in replying, the Minister can confirm that in paragraph 3(d), the requirement on the commissioner to publish,

“in such manner as the commissioner thinks appropriate”,

is consistent with the description that the noble Lord has just given—and that, within statute, one cannot think something “appropriate” without it also being “reasonable”.

Misuse of Drugs Act 1971 (Temporary Class Drug) (No. 2) Order 2016

Debate between Lord Rosser and Baroness Hamwee

Thursday 15th December 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have one concern, which I did not expect to have until I read the Explanatory Memorandum. This is of course the second temporary order in respect of MPA, and the memorandum tells us:

“The Secretary of State has received a recommendation from the ACMD that an order should be made on the basis that this substance is a drug that is being misused”—

we have heard about that—

“and that the misuse is having harmful effects”.

However the Explanatory Memorandum goes on to report the ACMD’s,

“difficulty in finding any significant data relating to harms, seizures and prevalence”,

of MPA since the first order. Can the Minister comment on that? I do not of course advocate the use of any drug, but if the ACMD has not been able to show evidence of harm, is there a danger that by banning this drug we might be pushing people towards harm from another drug that is used instead of it, rather than protecting them from it? It seemed an interesting pairing of comments, if you like, in the Explanatory Memorandum. Since we are talking about temporary orders, and the first temporary order has not apparently provided the opportunity to do what we would have expected it to do, it would be helpful to have a comment on that on record.

[Lord Rosser (Lab)]

My Lords, I thank the Minister for her explanation of the purpose of the order, which we support. As has been said, it replaces the Misuse of Drugs Act 1971 (Temporary Class Drug) (No. 3) Order 2015. That order provided for temporary controls on the drug methiopropamine, known as MPA, which made it an offence to produce, import, export, supply or offer to supply it. The 2015 order expired after 12 months. This order replaces that 2015 order and continues the controls for another 12 months.

As has been said, the Secretary of State has the power to make a temporary class drug order as long as two conditions are met: first, that the drug is not yet classified as a class A, B or C drug, and, secondly, that the Secretary of State has consulted with or received recommendations from the Advisory Council on the Misuse of Drugs and has determined that the drug in question is being or is likely be misused, has harmful effects and should be subject to controls.

MPA is a psychoactive substance similar to methamphetamine. Controls were placed on MPA at the recommendation of the ACMD. The ACMD’s assessment was that MPA was dangerous and had side-effects including anxiety, panic attacks and difficulty breathing, and had apparently been implicated in 22 deaths between 2012 and 2015. The ACMD also reported that MPA had become an injecting drug of choice. Following 12 months of temporary controls, however, the ACMD has reported anecdotal evidence that usage has declined. Police Scotland has reported reduced instances of injection, and the ACMD has pointed out a number of other reasons for believing that its use may be in decline, to which the Minister has already referred and which I do not intend to repeat.

The ACMD has also reported that currently there is insufficient evidence on harms, seizures and prevalence of MPA for it to make a permanent recommendation. That is why it has recommended that the drug, in all its variations, be subject to another 12 months of temporary control to allow it to gather and consider more evidence before it makes a substantive recommendation.

I hardly imagine that the point I wish to make is one that the Minister will be able to answer, but I will raise it nevertheless. We support the order, as I say, but we do not appear to have been provided by the ACMD with any reason why it believes, since sufficient evidence has not come to light in the first 12 months of an order, that sufficient evidence is likely to come to light in the next 12, which this order would cover. I merely put that point to the Minister but I imagine that, quite justifiably, she will say that that is something for the ACMD to comment on. Still, it seems a slight weakness in the letter from the ACMD to the Parliamentary Under-Secretary of State, which contains its recommendation, that it remains rather silent on why it believes that that evidence may become available in the next 12 months, bearing in mind that it has not been available in the 12 months to date.

Policing and Crime Bill

Debate between Lord Rosser and Baroness Hamwee

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Rosser]

I will be brief, but my name is attached to most of the amendments which we are now addressing. A victims’ rights Bill was introduced in the other place last year by the then shadow Home Office Minister, Sir Keir Starmer, and it had all-party support. As the noble Baroness, Lady Brinton, has said, victims’ rights are largely covered by entitlements in the victims’ code and affected by various other initiatives in recent years. However, the key thing is that the code is not legally enforceable and feedback from victims suggests that it is not applied by the relevant agencies. Maybe that is because they are aware that a failure to provide the service does not make a service provider liable to any legal proceedings. Lack of information and support to victims are the major areas of concern, with victims prioritising the right to information, protection, treatment and support as the highest priorities. These amendments place victims’ rights in a statutory framework and place a statutory duty on the Secretary of State to publish and implement a strategy to provide training for all relevant professionals and agencies on the impact of crime on victims. In essence, these amendments lay down what support should be offered to victims, how that support is managed, what training is necessary to put it into place and how complaints can be pursued. These amendments have our support.

[Baroness Hamwee]

My Lords, I hope that my noble friend will understand that, given the further business to which the House has to attend tonight, I will confine myself to saying that we on these Benches enthusiastically support her amendments.

Policing and Crime Bill

Debate between Lord Rosser and Baroness Hamwee

Committee: 2nd sitting (Hansard - part one): House of Lords
Wednesday 26th October 2016 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I think what I outlined in my speech to noble Lords was that the director-general would need to outline how he proposes the board will work and his position in it. The Bill recognises the need for transparency, as the noble Lord pointed out. It places a requirement on the director-general to publish a statement of policy on the exercise of these particular powers of recruitment. I imagine that if he decided to have a board full of former police officers he would want to explain why, in his particular case, this was necessary.

[Baroness Hamwee]

Would the Minister accept that the bit the public will be aware of—like the change from an organisation with the term “independent” in its title—is the change from a board structure where there is a bar on all members of the board having been police officers or involved with the police service to a situation where there need not be, not the detail of the report of the director-general explaining the fine detail of their thinking? It is a much broader issue than the Government are acknowledging.

[Lord Rosser]

I thank noble Lords who have participated in the debate, and the Minister for her response setting out what the Government’s position is and the thinking behind the Government’s wording in the Bill. Issues have been highlighted in the debate about the potential implications and the extent to which one could end up in a situation where very few people indeed in the public face of the organisation and its senior decision-makers had not worked for the police, since the terms of the Bill do not preclude that happening. It precludes it only as far as the director-general is concerned.

Investigatory Powers Bill

Debate between Lord Rosser and Baroness Hamwee

Report: 2nd sitting (Hansard - part one): House of Lords
Monday 17th October 2016 Lords Chamber

[Lord Rosser]

My Lords, when the Bill was going through the House of Commons, the Government made a commitment to introduce a clear and appropriate threshold for accessing internet connection records. The concern was that access should not be available in connection with non-serious crime. The threshold for serious crime that the Government came up with in Committee appeared workable and appropriate.

But last April, the then Home Secretary told the then shadow Home Secretary that restricting internet connection records to serious crime would hamper the ability of the police to investigate online stalking and harassment; disrupt police investigations of online grooming or the sending of sexual communications to a child; reduce the ability to investigate online fraud; hinder the ability to identify and disrupt the sale and distribution of illegal material online, including illegal weapons, counterfeit medicines or illegal drugs; and prevent the police progressing investigations where there may be a threat to life but where it is unclear whether a crime is involved—for example, locating a missing or suicidal child—because many of these activities would not meet the serious crime threshold.

While we welcome the fact that specific offences such as stalking and harassment have been addressed and can lead to access to internet connection records, we have continuing concerns around the definition of “other relevant crime”, which is too broad and could still lead to the use of internet connection records in relation to crimes that would not be regarded as serious.

Currently the Bill defines “other relevant crime”, with some caveats, as,

“an offence for which an individual … is capable of being sentenced to imprisonment for a term of 6 months or more”.

The Government have recently stated that this threshold rules out the use of internet connection records for a large number of minor crimes, including those which are not subject to a custodial sentence and those which are subject to only a one-month or a three-month custodial sentence. The Government have also indicated a number of offences in respect of which the use of internet connection records would be excluded if the threshold in respect of “other relevant crime” was increased from six months to a sentence that is capable of attracting a custodial sentence of 12 months or more. Those offences which would then be excluded include motoring offences such as joyriding, driving while disqualified and failure to stop or report an accident; an offence of criminal damage under £5,000; some sections of the Public Order Act which do not amount to violence; and certain immigration offences and some offences relating to the supply of intoxicating substances or controlled drugs.

Our amendment would increase the qualifying term of imprisonment from six months to 12 months or more. This would exclude the kind of offences to which the Government have referred. One accepts that such offences can have significant consequences, but we do not regard them as serious in the context of the purpose for which access to internet connection records is required—and nor do we think that raising the threshold to 12 months’ imprisonment in respect of other relevant offences makes it difficult to pursue matters related to the kind of offences to which the previous Home Secretary drew attention and to which I referred earlier.

I hope that the Government will feel able to give a helpful response to this amendment, which seeks to address concerns that access to internet connection records could be used in inappropriate circumstances for which the Bill is not intended—notwithstanding the fact that any such access to internet connection records must meet the necessity and proportionality requirement, which some might argue should exclude much low-level offending. I beg to move.

[Baroness Hamwee]

The noble Lord made a very persuasive case for this amendment and I do not think that he will be surprised to be supported by these Benches, given our concerns about internet connection records—so any further constraint on them is something that we would welcome. But he went into far more detail than that and we support him.

Investigatory Powers Bill

Debate between Lord Rosser and Baroness Hamwee

Report: 2nd sitting (Hansard - part two): House of Lords
Monday 17th October 2016 Lords Chamber

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I also have Amendments 178A, 178B and 178C in this group.

We mentioned in Committee how inextricably intertwined are technical and legal matters in this area. I doubt that either Minister would disagree with that, having lived with this Bill as they have. Whether and how the Act will apply will be a matter of legal interpretation in the context of the technology that we have at the time. Our Amendment 134A would give the Investigatory Powers Commissioner power to publish material regarding legal interpretations. It is clear that he would keep the interpretations under review, so this amendment is simply a matter of having the power to publish them.

We welcome government Amendment 178 and its consequential amendments providing for a Technology Advisory Panel. We have three minor amendments seeking either clarification or adjustment. Subsection (1)(a) of the new clause provides for the panel to give advice on,

“the impact of changing technology on the exercise of investigatory powers”.

We would insert there a reference to the safeguards on the exercise of powers. That may be implicit, because the exercise of powers is to be subject to safeguards, but we think it should be explicit. After all, safeguards have been very much a feature of debate on the Bill in both Houses, and the Bill has changed quite a lot in spelling out what safeguards there are.

Similarly, Amendment 178B would insert advice on the interpretation of the law in the light of technological advances and necessary amendments to legislation. It is, if you like, a first cousin to Amendment 134A.

On Amendment 178C, given that the Investigatory Powers Commissioner and Ministers will be required to consider the privacy implications when exercising powers relating to new technology, it would be helpful for the Technology Advisory Panel to be required to have regard to those same matters—that is, those matters set out in the privacy clause, Clause 2. That would be not only helpful but appropriate. After all, as an advisory panel, it must have regard to how those exercising the powers would be constrained in exercising them. I beg to move.

[Lord Rosser]

I appreciate that I may be speaking prematurely since the Government have not moved their amendment on the Technology Advisory Panel. On the basis that they are not about to stand up and withdraw it, I thank the Government for the amendment establishing a Technology Advisory Panel, which reflects the recommendation by David Anderson QC in his report on the bulk powers provisions in the Bill, a report that we had secured during the passage of the Bill in the Commons and a recommendation on which we had an amendment in Committee in this House.

Policing and Crime Bill

Debate between Lord Rosser and Baroness Hamwee

Wednesday 14th September 2016 Lords Chamber

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I tabled Amendments 10, 11 and 99 in this group and we support the other amendments in the group as well. I resisted joining in the debate about trialling the proposals because my noble friend did so and I had mentioned the issues in the debate on the first or second group of amendments. Nevertheless, it is difficult to apply experience from a situation where there has been a voluntary arrangement, such as we have heard described, to the less voluntary arrangements proposed by the Bill.

I turn to our Amendments 10 and 11. Schedule 1 proposes amendments to the Fire and Rescue Services Act. Proposed new Section 4A will allow the Secretary of State to make an order for a PCC to be a fire and rescue authority. Under subsection (4) of the proposed new Section, he can do so only if a PCC has put a proposal to the Secretary of State; and under subsection (5) he can do so only,

“if it is in the interests of economy, efficiency and effectiveness”—

all three Es are spelled out here, as I mentioned earlier —or,

“in the interests of public safety”.

Under the provisions for collaboration agreements there are various duties and restrictions, in Clauses 2 and 3, including the specific issue of the efficiency and effectiveness of the police force. These amendments probe whether wider considerations will apply under proposed new Section 4A than simply the items spelled out in its subsections (4) and (5). Amendment 11 would require the Secretary of State to consider the views arrived at during the formal process of assessment provided by Clause 2.

Our Amendment 99 and Amendments 12, 30 and 44 in the name of the noble Lord, Lord Rosser, take us back to whether we are in the territory of the interests of the three Es and the interests of public safety, or whether one of those in effect overrides the other by being alternatives. In my earlier read-throughs of the Bill I was really puzzled about why it should not be both—and, indeed, why safety needs to be spelled out. Given the Minister’s response to Amendment 6, I hope she will be able to consider these amendments as well. I beg to move.

[Lord Rosser]

I will be brief. As the noble Baroness, Lady Hamwee, mentioned, Amendments 12, 30 and 44 in this group are in my name as well as hers. As she also said, they seem not too dissimilar to the issue we discussed earlier when we debated Amendment 6. Amendment 12 provides that before the Secretary of State may make an order for a police and crime commissioner to take over the fire and rescue authority, it must appear to the Secretary of State that it would be both,

“in the interests of economy, efficiency and effectiveness”,

and,

“in the interests of public safety”.

It is that last bit which the amendment seeks to achieve.

Amendments 30 and 44 are in a similar vein in respect of the making of an order by the Secretary of State for the delegation of the functions of a fire and rescue authority to the relevant chief constable and in respect of a police and crime commissioner submitting a proposal to the Secretary of State to take over a fire and rescue authority.

Without wanting to labour the point too much, it is not clear why the Government, on this major change in organisational structure for the fire and rescue services, consider that it being,

“in the interests of economy, efficiency and effectiveness”,

and it being,

“in the interests of public safety”,

should be separated and alternatives when it comes to the Secretary of State making an order for a police and crime commissioner to be the fire and rescue authority. It raises issues about in what circumstances the Secretary of State would make an order when he or she considered it to be in the interests of economy, efficiency and effectiveness but not in the interests of public safety, which the Secretary of State would apparently be entitled to do under the terms of Schedule 1. Likewise, in what credible circumstances would the Secretary of State make an order based on it being in the interests of public safety when it was contrary to the interests of economy, efficiency and effectiveness, as apparently he or she could also do under the terms of Schedule 1 as it stands?

As the noble Baroness, Lady Hamwee, suggested, I am rather hoping I may get a fairly sympathetic response, similar to the one I had on Amendment 6. I will wait to hear what the Minister has to say.

Investigatory Powers Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 5th September 2016 Lords Chamber

[Baroness Hamwee]

My Lords, this takes us to Clause 208 concerning additional functions. Clause 208(1)—there should be a limit on the size of Bills so that one can handle them easily—provides that a judicial commissioner must give the tribunal the documents and so on as the tribunal requires. The first of my amendments would substitute “request” for “require”. These words are often used as synonyms, but the use of “require” suggests that the documents and information—the matters mentioned in Clause 208(1) —are objectively necessary for the tribunal. I should have thought that the tribunal would have the scope to ask for what it wanted, because I think that one can rely on it not to be frivolous in making requests.

I should have said that I would be speaking to Amendments 191L, 192A, 192B, 192C and 194G. Government Amendment 192 is also in this group. Amendment 191L relates to Clause 210 concerning annual reports. It would require the Investigatory Powers Commissioner to report on the operation of the Act. He or she will have a great deal of experience of far more than simply the functions of the judicial commissioners, as provided for in the Bill. Again, I may be told that this is not necessary because the IPC can always make suggestions about changes to the Act or how it is applied, but in their Amendment 192 the Government have added to the list of non-exclusive items in this clause, and that very amendment suggests to us that it would be appropriate to add our words. The operational purposes are a step removed from the judicial commissioners’ functions, so I do not think that our amendment is out of place. Amendment 192A is consequential.

With regard to Amendment 192B, David Anderson, at paragraph 2.26(g) of his report, wrote:

“The operation of current bulk interception powers is subject to the audit of IOCCO, including its technical inspectorate, and will in future be audited by the IPC. The 2015 ISC Report recommended that the oversight body be given express authority to review the selection of bearers, the application of simple selectors and initial search criteria, and the complex searches which determine which communications are read. That authority is (I am assured by the Home Office) inherent in clauses 205 and 211 of the Bill”.

In a footnote he referred to the Clause 205(5) duty on the IPC to,

“keep under review the operation of safeguards to protect privacy”.

Clause 205 is a general oversight clause. Clause 211 applies to the judicial commissioner in a particular case.

I baulked at the task of trying to deal with the terms “bearers”, “simple selectors”, “initial search criteria” and “complex searches”, so I have opted for a more straightforward amendment to get on record, I hope, the assurance to which Mr Anderson refers—that the authority to review these matters is inherent in Clauses 205 and 211— together with an explanation as to the application of the authority raised by the ISC. I am fairly certain that I have provided this explanation to officials. I hope that the Minister is aware of this and that his briefing covers it—he is looking puzzled—because I sent it to the officials last week. If not, he will perhaps wish to come back to it after today.

Amendment 192 is about the definition of a “relevant person” for the purposes of the judicial commissioner’s powers under the clause. The clause includes “any member of a public authority”. However, given the definitions in other legislation, “a public authority” is not fully defined. My background, as is that of our new Home Office Ministers, is in local government. Therefore, when I hear the term “elected member”, it suggests an elected member, not the authority itself. The authorities listed in Schedule 4 suggest that the schedule is talking about the authorities, not members of authorities. So when a “relevant person” has to disclose documents, provide assistance and so on, who are we talking about? Who is a board member of, say, HMRC or a government department? I do not know and the amendment seeks to understand that term.

Amendment 194G is concerned with the commissioners keeping the performance of the board under review. The TAB annual report stated:

“At the next review the Terms of Reference should be expanded to include sponsor’s obligations, based on Cabinet Office guidance. This should include the requirement to review the performance of the TAB annually, although the scope to carry out such a review will be limited unless and until its main advisory function is called upon”.

The amendment seeks to add that comment to the Bill. I beg to move.

[Lord Rosser (Lab)]

Perhaps I might raise a couple of points: one on an issue raised by the noble Baroness, Lady Hamwee, and another on government Amendment 192, to which I assume the Minister will be speaking in his response.

The noble Baroness referred to paragraph 2.26(g) of the Anderson report. Without going through the whole issue, the noble Baroness, Lady Hamwee, referred to David Anderson’s sentence at the end of that paragraph, which states:

“That authority is (I am assured by the Home Office) inherent in clauses 205 and 211 of the Bill”.

I, too, would be grateful to hear the noble and learned Lord repeat that the authority is inherent in Clauses 205 and 211, as David Anderson asked, so that it is very clearly on the record. If the Minister will do that, it will save having to pursue the matter at a later stage.

Investigatory Powers Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 5th September 2016 Lords Chamber

[Lord Rosser]

Clause 214(1) provides that the Secretary of State may by regulations modify the functions of the Investigatory Powers Commissioner or any other judicial commissioner, subject to the constraint in subsection (2). On the face of it, that is a fairly wide-ranging power and it would be helpful if the Minister could say what functions of the IPC the Government think that they might need to modify by regulations, and whether that would include a diminution in the role and responsibilities of the Investigatory Powers Commissioner or any other judicial commissioner.

One could surely argue that the functions of the commissioner or of any other judicial commissioner should be set out in primary legislation and modified only through primary legislation, particularly where it reduces their role and responsibilities. What modifications of the functions of the Investigatory Powers Commissioner or of any other judicial commissioner, subject to the provision of Clause 214(2), would the Government think it inappropriate to deal with by regulations under Clause 214?

Our amendments seek to remove the power to modify by regulations by amending Clause 214(1) to say that the Secretary of State can by regulations only,

“extend and augment the oversight”,

functions of the Investigatory Powers Commissioner or any other judicial commissioner, and only in order that those functions should be able to keep up with technological or other developments. This would also appear to have some relevance to the recommendation in the Anderson Report of the Bulk Powers Review that a technology advisory panel should be established to advise the Secretary of State and the Investigatory Powers Commissioner.

We also have an issue in this group in relation to Clause 242 standing part of the Bill. The reason is that in its report published on 8 July of this year, the Delegated Powers and Regulatory Reform Committee raised a number of concerns about the powers conferred on the Secretary of State under Clause 242 to make such consequential provision as she considers appropriate by regulations, with this power being able to be exercised by amending or otherwise modifying the provisions of primary or subordinate legislation, including future enactments. The Delegated Powers and Regulatory Reform Committee also considered the powers conferred by paragraph 33 of Schedule 8 to be inappropriate to the extent that they permit amendment by regulations of future enactments passed or made after the current Session, as well as amendments to Schedule 8 itself.

There are other amendments in this group relating to the concerns and views expressed by the DPRR committee on the Bill, of which I am sure the Government are aware. I will therefore not go into further detail on this score but instead simply ask the Minister to say what action the Government intend to take in the light of that committee’s report.

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I have Amendments 194CC to 194CE, 238A and 238B, 240A and 240B, and 242A in this group. First, of course, there are the amendments of the noble Lord, Lord Rosser. The first of these is very similar to Amendment 194C, which we debated before the Recess, and which would have replaced the word “modify” with “extend or augment”. The amendment of the noble Lord, Lord Rosser, would do the same, except that it says,

“extend and augment the oversight”.

The Minister’s reply on the third day of Committee referred the Committee to the affirmative regulations which would be required and to the scrutiny involved. I am often not convinced by an argument that secondary legislation provides adequate scrutiny regarding the protection that might be given. I will probably never be wholly convinced about this as a mechanism until there is a mechanism to amend secondary legislation. I dare say that the response will be the same; if it is not, that will be interesting in itself.

On Amendment 194CB, I do not think that I would want to limit the modification which is the subject of this to keeping up with technical developments. There could be some other reasons if it is found that the powers are not quite spot on. But this is certainly an area of concern.

Amendments 194CC to 194CE deal with Schedule 7, which relates to codes of practice. I have already expressed some reservations about them. The first of the amendments would add to the procedural requirements that the Secretary of State must consult on a draft code as well as consider representations on it. The Minister may say that the Secretary of State will have to consult because she cannot consider representations without consulting. I am not quite sure whether that would be a logical or complete answer, but assuming that the Secretary of State will be expected to consult, we should say so.

Two other amendments concern the terms “taking into account” and “having regard to”. I realise that we discussed the hierarchy between these terms—if there is any—on a previous day, so I apologise to the Committee. I think that the answer was that it would be inelegant not to use different terms in the clause, which would otherwise suffer from very clunky wording.

The noble Lord, Lord Rosser, referred to our other amendments, which indeed come from the report of the Delegated Powers and Regulatory Reform Committee. I am extremely grateful to the Public Bill Office and in particular to Nicole Mason, with whom I had some quite long discussions and email exchanges as I tried to get to drafting that would pick up the points made by that committee. This is what these amendments seek to do. The noble Lord referred to the concern about a power to amend future enactments—not only those later in the same Session as the Bill, which would be understandable, but whenever they are made.

The committee also quoted a paragraph from the memorandum on delegated powers, which advised the House that,

“this potentially wide power is constrained by the requirement”,

on the Secretary of State to consider,

“the provision to be appropriate in consequence of this Act. Accordingly, the power is effectively time limited”.

The committee said that it found this paragraph difficult to understand—and so did I. It also said that it is not convinced that it is necessarily right. Its recommendation was that,

“the powers conferred by clause 242(2) and (3) are inappropriate to the extent that they permit amendment of future enactments passed or made after the current Session”.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I apologise for the rather cheap gibe about the split infinitive. I recognise that I am old-fashioned, and styles have moved on. It would obviously be inappropriate to pursue the points made by the Delegated Powers and Regulatory Reform Committee at this point, given that the Minister has written to it, and we will wait to see if anything more happens on that. However, I will just say, on the question of consultation, that the Government are often very good at being proactive in consulting and at contacting organisations which they know have an interest. That is something that should be encouraged. To my mind, consultation which simply involves publication on a website—or perhaps in common parlance, “slipping something out”—the day before a recess and waiting to see whether there are any comments is not good practice. That was why I was concerned to spell this out. I am not of course suggesting that anyone on the Front Bench at the moment would indulge in such a practice, but it has been known to happen. This is not an unnecessary point, but I will not pursue it this evening.

[Lord Rosser]

I thank the Minister for his response, although clearly the answer that he has given on behalf of the Government is not the one that we might have been hoping for in relation to the Delegated Powers and Regulatory Reform Committee’s report and the concerns and views it has expressed. However, rather than making any more specific statements than that at this stage, I simply confine my observations to saying that I will wait and read the letter that I understand the noble Earl said was sent to the noble Baroness, Lady Fookes, which is presumably responding to the issues that have been raised. I will take the opportunity to read that letter and then decide whether to pursue the matter further or not at a later stage. I beg leave to withdraw the amendment.

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Tuesday 10th May 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, many of your Lordships will have negotiated a variety of agreements and arrangements, been involved in the toing and froing of proposals and counterproposals, and experienced the feeling of, “Okay, enough, let us move on”.

I do not equate that with this issue. I am realistic enough to understand where the Government have got to, but it is not far enough. From my privileged, comfortable position, compared with the asylum seekers, the subject of these amendments, I cannot leave it there. I do not feel, in the words of the noble and learned Lord, that I have done my job and done more.

I want to make it clear that I support the noble Lord, Lord Ramsbotham. To deprive an individual of liberty for the purposes of immigration control should be an absolute last resort. It should be comparatively rare and for the shortest possible time. At the last stage but one of this Bill, the Government introduced their amendment for automatic judicial oversight. We heard then references to detainees still being able to apply for bail and to access legal advice at any time, and so on. That painted a picture which, though technically correct, did not accord with the realities described to me over the years.

The noble and learned Lord introduced the automatic hearing after six months as a “proportionate response”, and said that earlier referral might result in work for both the tribunal and the Home Office at a time when an individual’s removal from the country was planned and imminent. So I was pleased last night that the Minister in the Commons, “after careful consideration”, moved a reduction from six months to four months to reflect the fact that the vast majority are detained for fewer than four months.

At the end of last December, on the latest figures that we have, 2,607 people were detained. Of these, 530—roughly 20% of the detainee population—had been detained for less than four months but longer than two months. Those are the numbers that my amendment is about, although they are 530 individuals, not just faceless numbers.

The impact of immigration detention, which is not a sanction—it is not punishment for wrongdoing—is considerable and reference has rightly been made to the particular impact on mental health. I look forward to Stephen Shaw’s further work and hope that it will ameliorate conditions, but there must always be a significant impact. I do not know, though I can speculate on, the Government’s reason for moving from the proportionate six months to four months, but if they can move, I suggest they can move further. In the mix of assessing what is proportionate, the impact of administrative detention must be a significant factor. Let us reduce it as much as possible. That is why I propose two months.

I take this opportunity to say, too, that in all this I do not want to lose sight of the objective of improving the whole returns process. Alternatives to detention with case managers who are not decision-makers would be more humane, less costly and more efficient. There is plenty of experience of that in other countries. An improved returns system would reduce the burden on tribunals and the Home Office. It may be trite but it is true that efficiency is much of the answer. I hope noble Lords will be sympathetic to my proposal to reduce it still more, and take us further on the journey that the Government have led us on with regard to the period when there must be an automatic judicial oversight of each individual’s position.

[Lord Rosser (Lab)]

In the Commons last night, the government Minister confirmed that the Government accepted that there should be judicial oversight of administrative immigration detention, and that was why they had previously tabled a Motion, the effect of which would be that individuals would automatically be referred to the tribunal for a bail hearing six months after their detention began, or, if the tribunal had already considered whether to release the person within the first six months, six months after that consideration.

That amendment was not accepted in this House, which again carried a Motion providing for a 28-day period of administrative immigration detention, after which the Secretary of State could apply to extend detention in exceptional circumstances. The Commons has again rejected the amendment from this House and has instead passed a government amendment reducing the timing of an automatic bail referral from six to four months, since, apparently, the vast majority of persons are detained for less than four months. Will the Government confirm that that bail hearing after four months of detention will be automatic and will not depend on the individual in detention having to initiate the application?

This is an issue which this House has already sent back to the Commons twice. Consideration obviously has to be given to the role of this unelected House in the legislative process as a revising Chamber, inviting the Commons to think again in a situation where the elected Commons and the Government have made some movement—albeit not enough to meet the views of this House—on the length of administrative immigration detention without automatic judicial oversight.

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Tuesday 26th April 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, today is a day for pithy comments rather than rehearsing arguments that I have already made on this subject, which are on the record. Amendment 59B is different from the previous amendment in that an olive branch has been offered in the shape of nine months rather than six months. We have been told that the delays in the system are historic and that the system is now under control, so it seems that there should not be a problem with six months —but there we are.

I support in particular the noble Lord’s comments about the shortage occupation list. It would be inappropriate to go through all the jobs on that list but without wanting to be too frivolous, I noticed that, for instance, string players are on the list but there is no mention of players of wind or brass instruments. That is the sort of detail and the sort of thing that really makes you wonder about the policy.

The nine months proposal would be in line with almost all other countries in the EU, so there would be no pull factor. Having spoken up and given my support to the noble Lord, I will sit down.

[Lord Rosser (Lab)]

The amendment your Lordships sent to the Commons on allowing asylum seekers the right to work after six months, like the other amendments carried in this House against the Government’s wishes, did not find favour with the Government or indeed receive any indication of movement by them on the issue.

As has been said, at present in most cases asylum seekers are not allowed to work in the UK unless they have waited over 12 months for an initial or subsequent decision, and are not considered responsible for any delay. Those who do qualify for the right to work under these restrictions are then able to apply only for jobs on the shortage occupation list. However, we are currently reviewing this issue as part of a wider policy review and consequently we will not be supporting the Motion sending the matter back again to the Commons—albeit now saying nine months rather than six months.

--- Later in debate ---

[Baroness Hamwee]

My Lords, like others I recognise the contribution that the Government are making in money and personnel, so far as those are being sent. But I regard the dangers of which we have heard—the situation in which unimaginable numbers of children have been caught up—and our moral responsibility as outweighing everything. The dangers include the risks of trafficking and exploitation. Was that not precisely what the previous Government set out to counter in their flagship legislation? Prevention is the best response so relocating, supporting and welcoming children would contribute to that objective. The Minister says that this amendment is not the best or the most effective way but it is not an either/or. Whatever other countries do or do not do, the UK must not do just what is better than others but what it knows is right. This amendment is in the best interests of the children who are the subject of it.

[Lord Rosser]

I will be brief, since the arguments for this amendment have already been powerfully made. I also endorse the comments made by my noble friend Lord Dubs and other noble Lords about the measures that the Government have already taken. But while on the one hand the Government say, rightly, that we need to play a role at the heart of Europe, on the other they decline to assist over taking in unaccompanied refugee children in Europe who have fled from war, conflict and persecution and are already alone and at risk, simply because they are already in Europe.

Europol estimates that 10,000 unaccompanied refugee children went missing in Europe last year and we know that children are being exploited. The Government maintain that taking in any unaccompanied refugee children from among those already in Europe would increase the so-called pull factor—an argument for which there is no firm, hard evidence one way or the other. But at the heart of the unproven pull factor claim is a policy stance that we should leave all unaccompanied refugee children already in Europe to their fate. That is an unacceptable stance and if my noble friend decides to put his amendment to a vote, we will support him in the Division Lobby.

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Tuesday 12th April 2016 Lords Chamber

[Baroness Hamwee]

My Lords, from these Benches I support this amendment very warmly. In the previous stage of the Bill, as the noble Baroness, Lady Lister, said, we had an amendment dealing with vulnerable people but it was debated alongside and really overshadowed by the amendment on a time limit to detention. The amendment provided that detention should take place only in exceptional circumstances determined by the First-tier Tribunal.

After the amendment was tabled, I was quite embarrassed by the opposition to or considerable doubts about it expressed by a number of organisations for which I have the greatest respect. They told me that we had got it wrong and that we should not provide for any exceptional circumstances in the case of pregnant women. I explained to them that the amendment was expressed as it was because we were trying to approach the Government with an offer of compromise. We hoped that the Government would meet us halfway by agreeing to not a complete exception but the one we expressed in that amendment. The list of vulnerable people was taken from Stephen Shaw’s report, in which—no ifs, no buts—pregnancy means vulnerability. As the noble Baroness said, and I will see if I can get it out without tripping over the word, he spoke of the,

“incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.

His Recommendation 10 was that they should be excluded.

The Government have added what is now Clause 62 to the Bill and there will be guidance; I acknowledge that that will come to Parliament. However, it will be through the negative procedure, and this is another of those examples where we can talk to our hearts’ content but will not be able to alter what is proposed. I was worried when I saw that new clause in the last stage and I worry now about the expression “particularly vulnerable”. I say again: there should be no ifs, no buts.

The Government proposed the adults-at-risk approach that has been referred to. I thank the Minister for his letter, in which he describes the Government’s concern about allowing all pregnant women access to the UK regardless of their immigration status, and therefore access to maternity services. The noble Earl will recall the debates that led up to the health charge being imposed—I suppose it is two years ago now—and that was one of the concerns which was expressed. We now have the health charge.

The letter from the Minister, the noble and learned Lord, Lord Keen, explained:

“The higher the level of risk (and pregnant women will be regarded as being at the highest level of risk), the less likely it is that an individual will be detained”.

He added that the Government’s view,

“is that the best approach is a considered, case by case one which is represented by the adults at risk policy”.

I find it difficult to reconcile the two parts of that—that this is the “highest level of risk” but that there will be a “considered, case by case” approach. I do not think that the Minister can be surprised at the anxiety expressed by the very considerable number of well-respected organisations which are anxious about the policy given their experience of the current policy.

The noble Baroness referred to the all-party group inquiry, of which she and I were members. I turned it up this morning to find the comments that we made then about pregnant women. They included the evidence of Hindpal Singh Bhui, a team inspector at HM Prisons Inspectorate, who said that,

“pregnant women are only meant to be detained in the most exceptional circumstances. And again, we look for evidence of this”.

Of course, I am talking about the historical position. The inspector continued:

“And on the last couple of occasions that we’ve looked, we haven’t found those exceptional circumstances in the paperwork to justify their detention in the first place”.

Our report went on to say:

“We were also told of pregnant women being forced to travel long distances, sometimes over several days, when initially being detained, and failures in receiving test results and obstetric records. In one case, we were told that an immigration interview was prioritised over a 20-week … scan”.

The report continued:

“We are disappointed that the Home Office does not appear to be complying with its own policy of only detaining pregnant women in exceptional circumstances. We recommend that pregnant women are never detained for immigration purposes”.

I see no reason to depart from that but every reason to support it and the amendment.

[Lord Rosser]

I apologise in advance for the fact that my contribution will contain a fair element of repetition of what has already been said but it will be relatively brief.

In his review for the Home Office into the welfare of vulnerable persons in detention, Stephen Shaw recommended that it amend its guidance so that the presumptive exclusion from detention for pregnant women was replaced with an absolute exclusion. Stephen Shaw said in his report that Her Majesty’s Inspectorate of Prisons had told him that in its view there was little to suggest that pregnant women were being detained only in exceptional circumstances. He also said that the Association of Visitors to Immigration Detainees had pointed out that an inspection of Yarl’s Wood had found pregnant women being detained without evidence of the exceptional circumstances required to justify this, with one of the women being hospitalised twice because of pregnancy-related complications. In the light of the evidence presented to him, which he set out in his report, Mr Shaw said that he had not sought further evidence that detention had an adverse effect on the health of pregnant women and their unborn children, since he took this to be a statement of the obvious.

Stephen Shaw also said in his report that he believed that the Home Office should acknowledge the fact that in the vast majority of cases the detention of pregnant women does not result in their removal, and that in practice pregnant women are very rarely removed from this country except voluntarily. Concluding, he said that he was strongly of the view that presumptive exclusion from detention should be replaced with an absolute exclusion.

I hope that the Government will reflect on their apparent decision not to accept Stephen Shaw’s strong recommendation in respect of the detention of pregnant women. It is my party’s policy that pregnant women should not be detained in these circumstances, a view also expressed by Mr Shaw in his independent report to the Home Office. If my noble friend Lady Lister of Burtersett decides, at the end of the debate—and, most importantly, after the Government’s response—to test the opinion of the House, we shall support the amendment.

--- Later in debate ---

[Lord Rosser]

I take this opportunity—I believe I am doing it at the right place—to express our thanks to all those who have participated in the debates on the Bill, which I believe is now a better Bill than the one that was sent to us from the House of Commons. We are grateful for the amount of information provided by Ministers and the Bill team, for the numerous meetings that have taken place and for the willingness of Ministers to listen to concerns about the Bill and, in some instances, the willingness of the Government themselves to bring forward amendments or place statements on the record to address those concerns. I particularly express appreciation of the work undertaken during the passage of the Bill by the noble Lord, Lord Bates, whose approach, as with that of his Front-Bench colleagues, has I think been appreciated on all sides of the House.

[Baroness Hamwee]

My Lords, from these Benches I add our thanks, particularly to the noble Lord, Lord Bates, who has started on a rather long walk, as my noble friend Lord Wallace of Saltaire said. It is one of a series of admirable walks but the noble Lord’s colleagues have been walking well alongside him, and after him, during the course of the Bill. It feels a little odd to agree that the Bill do now pass, because we are by no means clear what it will provide by the time that it has endured—a word that the noble Lord the Chief Whip might use—ping-pong. We are by no means finished with these issues or with the Bill itself.

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 21st March 2016 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I shall speak to Amendment 122A, since my name is associated with it. Some 2,000 refugees are currently arriving in Greece on barely seaworthy boats every day. According to the UNHCR, the majority are now women and children, fleeing the fighting in Syria and around the Iraqi border. Some 4.8 million Syrians have been displaced since the war began.

The existing rules on family reunion simply were not designed to cope with such a mass and, at times, chaotic exodus of people, which tears families apart and potentially leaves individuals in pretty desperate circumstances. Under the Immigration Rules, people granted refugee status or humanitarian protection in the UK can apply to be joined by family members still living in other countries. However, there are a number of restrictions about which family members qualify for family reunion. For adult refugees in the UK, only partners and dependent children under the age of 18 will usually come under the definition of “family”. As a result, families can be left with the invidious choice of whether to leave some members behind.

Amendment 122A seeks to provide an immediate route to reunite, in a managed and controlled way, those families caught up in the crisis. The Secretary of State would specify the numbers to be resettled through the scheme after full consultation with key stakeholders. The amendment would provide for that in a managed way on the basis of current resettlement programmes. It allows British citizens, as well as recognised refugees in the UK, to be reunited with family members through the programme, but, crucially, any number specified would be in addition to the Government’s existing commitments on resettlement.

The amendment does not distinguish between refugee family members who have made it to Europe and those stuck in the region—people do not cease to be part of a family based on where they are in the world. It would help to prioritise those cases of family members who fall outside the existing rules and find themselves in desperate situations. We believe that Britain can do, and should be doing, more in this unprecedented crisis, which the amendment would enable the Government to do through the Secretary of State. Four thousand Syrian refugees resettled a year—none from within Europe—is certainly a start and I do not wish to stand here and suggest that it is not a real contribution, but one is entitled to ask whether it is enough when that number arrives in Greece over the course of just two days.

We support the amendment and we will vote for it if the mover, having heard the Government’s response, decides to test the opinion of the House.

[Baroness Hamwee (LD)]

My Lords, my name is to the amendment moved by the noble Lord, Lord Hylton. I prefer it to the amendment spoken to by the noble Lord, Lord Alton, but either is considerably better than the current situation. If the noble Lord, Lord Alton, decides to divide the House, we on these Benches will be with him. It seems to me that the Section 59 referred to in his amendment is designed for exactly this sort of situation, had anyone been able to envisage it. Children without their parents who have got to the UK alone are refugees, so by definition cannot return to their country of origin, but their being unable to be with their parents is a situation that I am sure no noble Lord would want to envisage.

When we debated the matter in Committee, the Minister gave a number of defences to the current position, including:

“Our policy is more generous than our international obligations require”.

The vote on the previous amendment—a comparison was made in the debate on that between our generosity and that of others—answers that point. The Minister also said:

“Allowing children to sponsor their parents would play right into the hands of traffickers and criminal gangs and go against our safeguarding responsibilities”.—[Official Report, 3/2/16; col. 1881.]

The issue of safeguarding can be argued either way; there are problems of safeguarding whether you do or whether you do not in this situation. I prefer the right reverend Prelate’s logic.

On family sponsorship, where the more distant family of a refugee is here, it seems illogical in many ways not to allow aunts, uncles and so on to sponsor people to come here because it must lead to much faster integration, address the numbers to an extent—given the numbers, we should use what opportunities there are—and be obviously the right thing to do. There would be fewer safeguarding issues in that, although I would not claim that there are none.

Finally, I should not ask a question at this stage unless I know the answer, but I understand that family reunion is a matter of international law—despite my pile of papers I do not have all the detail with me. If the Minister can assist the House on that I would be grateful.

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Tuesday 15th March 2016 Lords Chamber

[Baroness Hamwee]

My Lords, my name is on the amendment. I made a lot of notes as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, was speaking, but I do not think that, having been given his conclusion, I need to deal with all of them. I am well aware that there is opposition to the clause from a number of organisations which do not want to see any exceptions at all. That seems to me to have been the burden of their concerns.

The short point is that the system is not working. We do not live in a perfect world. If we were to create other rules that one might say would support the system as we now have it, I do not believe that they could be made to work. The then Chief Inspector of Prisons commented on how many of the detainees were released back into the community, which poses the question: if they are suitable to be released back into the community, why do they need to be detained in the first place?

The Government’s position is a presumption that an “adult at risk” will not be detained. Our presumption is against detention for more than 28 days, so we start at the other end. It is unambitious to say—as the Government do—that they expect to see a reduction in the number of those who are at risk in detention and that they will be there for reduced periods. The Written Ministerial Statement which the Government published in January categorises the issues in a way which worries me, separating risk and vulnerability from healthcare. Care and assessment are very closely allied, and I suggest, for instance, that a victim of sexual violence may not be able to explain to a healthcare worker that this is her experience until after quite a long period of treatment. Therefore, looking at the Government’s approach to this, I am concerned.

We already have Rule 35 of the Detention Centre Rules, whose purpose is,

“to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention”.

It is not working. We have that now and there is a great range of problems—in view of the time I will not go through them but I hope that noble Lords will understand that the all-party group, of which I was a member, heard a good deal of evidence from medical professionals about the problems with Rule 35. Therefore, if that rule does not achieve what is needed, will guidance—the Government’s Amendment 86—achieve it? I fear that it will not.

Amendment 85 aims to flush out the Government’s view of the conditions of vulnerability listed by Stephen Shaw in his report. It says that a vulnerable person should not be detained unless there are exceptional circumstances, as determined by the tribunal. The Government’s answer will, no doubt, be in Amendment 86, which talks about particular vulnerability—someone being particularly vulnerable to harm if they are detained. We start from the premise that vulnerability is vulnerability, full stop.

There is so much more one could say; I wish I could but I will not. I support the amendment.

[Lord Rosser]

The noble Lord, Lord Ramsbotham, has made a powerful case in support of Amendment 84, to which my name is also attached, and I do not intend to repeat all the points. The amendment is intended to provide for judicial oversight if a person is to be detained for a period longer than 28 days. If the noble Lord, having heard the Government’s response to Amendment 84, decides to test the opinion of the House, we will vote in support.

Immigration detention is a matter of concern. For the person detained it is detention for an indefinite period, since they are not given a date when it will end. Their life is in limbo. A recent all-party group inquiry into immigration detention heard evidence that detention was in some ways worse than being in prison, since at least people in prison know when they will get out. There is medical evidence that it causes anxiety and distress, not least among the more vulnerable groups. The all-party inquiry to which I have referred heard from medical people with knowledge in this field that the sense of being in limbo and the hopelessness and despair it generates lead to deteriorating mental health. One such witness said that those who are detained for more than 30 days have significantly greater mental health problems.

For his report for the Home Office into the welfare in detention of vulnerable persons, Stephen Shaw commissioned a review by Professor Mary Bosworth of the evidence linking detention with adverse mental health outcomes. Mr Shaw said that he regarded her view as a study of the greatest significance. Two of Professor Bosworth’s key findings were: first, that there is a consistent finding from all the studies carried out across the globe, which were from different academic viewpoints, that immigration detention has a negative impact upon detainees’ mental health; and, secondly, that the impact on mental health increases the longer detention continues.

In his conclusions, Mr Shaw stated:

“Most of those who have looked dispassionately at immigration detention have come to similar conclusions: there is too much detention; detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK; and many practices and processes associated with detention are in urgent need of reform”.

He ended by saying:

“Immigration detention has increased, is increasing, and—whether by better screening, more effective reviews, or formal time limit—it ought to be reduced”.

In the first three quarters of 2014, 37% of those detained were detained for longer than 28 days. Home Office guidelines are that detention should be for the shortest possible time and should be used only as a genuine last resort to effect removal. Yet despite centres being called “immigration removal centres”, most people who leave detention do so for other reasons than being removed from the United Kingdom. According to government statistics, more than half the detainees are released back into this country.

There could surely be some scope for a wider range of community-based alternatives to detention, enabling more people to remain in their communities while their cases are being resolved or when making arrangements for them to leave the country. The family returns process, which is designed to reduce the number of children detained, has resulted, according to the Home Office’s own evaluation, in most families being compliant with the process and no increase in absconding.

I note the views expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and his reason for not supporting but also, as I understand it, for not opposing this amendment if it is put to a vote. If Amendment 84 is passed by this House, the Government also have the option, if they choose to take it up, of putting an amended proposition as the Bill goes through its remaining parliamentary stages.

Amendment 84 does not of course put a time limit on immigration detention but it would ensure that a decision to continue to detain after 28 days was a judicial decision dependent on the Secretary of State having to make the argument that the circumstances of the case concerned required extended detention. The amendment does not preclude or prevent detention going beyond 28 days but it means, in a country where we uphold justice and the right to liberty, that at least after a period of time the decision to continue to detain has to be a judicial one, not an administrative one. Surely this House can support that.

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Wednesday 9th March 2016 Lords Chamber

[Lord Rosser]

We have amendments in this group. First, I thank the Government for their amendment, which means that the offence of illegal working is committed only by a person who,

“knows or has reasonable cause to believe”,

that they are disqualified from working by their immigration status. It is different in wording from our amendment, which refers to a defence of having a “reasonable excuse” for working when disqualified from doing so by immigration status. I am certainly no lawyer, but I suspect that our amendment might provide a broader range of people with a defence than the government amendment. However, since the Government have taken on board the case that has been made for providing a defence to the offence of legal working, we do not intend to pursue this point any further.

We have previously argued the case for deleting the intended new offence of illegal working from the Bill, and we are associated again with an amendment to that effect. Not a single person could be prosecuted under this new offence who cannot already be prosecuted under existing offences; it is already a criminal offence under the Immigration Act 1971 to enter the UK without leave, when leave is required, and to overstay or be in breach of a condition of such leave. The Government’s argument for a new criminal offence of illegal working is that they believe it will provide an increased likelihood of seizing earnings through confiscation orders made under the Proceeds of Crime Act 2002. The Government can confiscate relevant sums from those who work in breach of the terms of their existing stay under the 2002 Act but cannot do so for those working illegally, and the Government wish to close the gap. However, government figures indicate that the 2002 Act is not typically used for offences of working in breach of conditions, although it is deployed in cases involving other immigration offences. The government figures indicate that only 16 confiscation orders were made under the 2002 Act in 2014-15, and none of them followed criminal convictions for working in breach of conditions.

As I understand it, proceeds of crime proceedings are apt to be lengthy and costly, and the Crown Prosecution Service guidance on proceeds of crime says that it should prioritise,

“the recovery of assets from serious and organised crime and serious economic crime”.

I suggest that there would be few cases in which it would be cost effective or in the public interest to pursue confiscation proceedings to seize wages earned as a result of illegal working as proceeds of crime. However, there must be a distinct likelihood that the existence of the offence of illegal working will be used as an additional threat by those abusing or taking advantage of trafficked or enslaved persons to discourage them from going to the authorities, or indeed to coerce such people into exploitation in the first place. Yet one objective of the Bill is to encourage people who are being exploited to come forward. A trafficked or enslaved person who knows that they are not permitted to work will of course have no defence under the government amendment of “reasonable cause to believe”. So it is quite possible that the new offence of illegal working will on the one hand raise little or no additional money under the 2002 Act, and on the other hand, by providing the threat of prosecution for those exploiting vulnerable people who should not be in this country, be a further means of discouraging them from coming forward to the authorities. I very much hope that the Government, even at this late stage, will be prepared to give further thought to the wisdom of introducing this new offence of illegal working.

[Baroness Hamwee]

The Minister said during the previous stage that the amendment that would insert “without reasonable excuse” would introduce considerable ambiguity and risk successful prosecutions. The amendment is down again today. We should consider it. The courts, the CPS and the police often have to assess whether something is reasonable so, as I read it, the amendment tabled by the noble Lord, Lord Rosser, is a matter not of ambiguity but of judgment, although I concede that if it was strict liability there would be no need of judgment.

For the reasons that the noble Lord gave, the reasonable cause—I accept that that is a more normal formula—in the government amendment is welcome, but I do not believe it goes far enough to provide a defence to someone who knows that he is illegal but who has been abused and exploited, perhaps at a lower level than is covered by the Modern Slavery Act. If it is within the Modern Slavery Act, the defence kicks in only after there has been a charge. I do not think I am alone in preferring to see a charge not even getting off the starting block.

Our Amendments 49 and 50 are in response to the Minister’s explanation in Committee that the clause is largely driven by the wish to bring it within the Proceeds of Crime Act. He assured the Committee that the Proceeds of Crime Act would not be applied to inappropriate targets:

“We are talking here about people who have on their person a significant amount of cash in excess of £1,000”.—[Official Report, 18/1/16; col 626.].

I took those words literally and our amendments are an attempt to reflect them because, if that is the policy, the legislation should say so. I accept that the CPS guidance is to prioritise the recovery of the proceeds of serious organised crime and serious economic crime and that the confiscation order must be proportionate, but to create an offence with the risks which have been referred to and which I will come to in a moment seems an inappropriate direction in which to go if there is such a clear view on the part of the Government about when it will be used.

We remain extremely concerned about Clause 32 as a whole, and my noble friend Lord Paddick and I have our names to Amendment 52 to leave it out because of the danger of an increase, not a reduction, in exploitation. As we discussed on the previous group, the Bill is about more than immigration. If you fear prosecution and imprisonment, is that not a greater deterrent to standing up for your rights? Someone working without the right to do so should not be exploited any more than someone with the right, but we think that the new offence may carry far more risks than it solves problems.

I suspect that the new offence, or at least casting it in this way, is probably quite totemic for the Government but, given the risks of applying the Proceeds of Crime Act, surely there are other ways to deal with the issue, such as the existing offences that the noble Lord, Lord Rosser, has referred to, rather than by giving abusers and exploiters even more ammunition and ways that they can say to workers, “We can really cause trouble for you. You are in a situation that you can’t get out of, and you are in terrible trouble if you try to go to the police, squeal on us or whatever”. Given that existing offences could be used to prosecute everyone who would fall within the new section, we remain unpersuaded that it is appropriate to include the clause in the Bill.

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Tuesday 9th February 2016 Grand Committee

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I have three amendments in this group: Amendments 242C, 242G and 242J. Before I come to them, I shall say that I support the amendment on British Sign Language. My noble friend Lady Humphreys is in her place. She heard the confirmation about the Welsh language and welcomes it. I say that in the context of wishing this clause were not here at all. I appreciate that there was a line in the Conservative Party’s manifesto for the previous election and that is why I have not sought to take these clauses out altogether.

The impact assessment on these clauses confirmed my anxiety about their potential for encouraging discrimination and harassment. It says:

“The policy objective is to ensure a sufficient standard of fluent English is maintained and can be enforced … This is intended to improve the quality, efficiency and safety of public service provision and support taxpayers confidence they are receiving value for money”.

So far, so good.

“This proposal is expected to support current priorities for the management of immigration into the UK”.

I have littered questions marks, the word “prejudice”, an exclamation mark and the word “tangentially” around that statement.

We would prefer to take these clauses out altogether, but the first of our amendments looks at the provision for expanding the requirements into the private sector. It is a probing amendment, and I hope that the Minister is aware of the questions that I intend to ask. If this is of such concern, why, in a service context where so many public services are provided on behalf of the Government by the private sector, does the Bill not immediately extend to services which are contracted out? Will there be changes to the requirements as they affect contractors? Has consultation taken place with the private sector? Will there be a single code of practice? Since so much is outsourced, it seems odd if work which is outsourced is not covered, but I wonder whether the private sector will be happy with this as a requirement. I am interested in the consultation.

Amendment 242G is on the code of practice, which under Clause 50 may make different provision for different purposes. I have suggested,

“and for different roles or descriptions of roles”.

It may well be that the Minister will confirm that that is within Clause 50(6) because there are clearly different things that people in the public sector do in different roles or may need to do. The impact assessment states that the code,

“will be flexible enough to account for the differing requirements and existing arrangements of different public sector bodies”,

but it would be good to have confirmation that the legislation allows for that.

Amendment 242J would require a review within five years. I ask the Committee to understand this amendment in the context of my initial remarks. Noble Lords will understand from the points that I have listed in the amendment the matters with which I am concerned:

“the extent and types of authority subject to the requirement; … the standard required; … procedures for complaints”—

it has been pointed out to me that it is sad that requirements are being put in place and that it is felt necessary to have a complaints procedure designed from the beginning—

“direct and indirect discrimination which has or may have arisen; and … the resources required to meet this requirement”.

The Race Equality Foundation says,

“the draft code is poorly drafted, poorly structured and … there is nothing to prevent users of public services making complaints on the basis of accent and appearance. These provisions may encourage, and semi-legitimise, racially-motivated harassment under the guise of challenging someone’s ability to speak ‘fluent’ English. There is already evidence on the greater likelihood for black and minority ethnic people to be subject to the disciplinary process in public services”.

It is obviously concerned about these requirements expanding that likelihood.

The Institute of Equality and Diversity Professionals was very moderate in its language:

“No amount of guidance in the draft Code of Practice can save what is an irredeemably unworkable scheme”.

It talks about:

“The opportunities for directly and indirectly discriminatory, and harassment, claims”,

and reminds us that harassment is a form of discrimination under EU equality law. It asks about the constitutional basis. I think I would ask about the evidence base.

The institute also points out that:

“The use of the terms ‘high standard of English’ … and ‘fluency’ indicate a ‘mother tongue’ proficiency, which is not permissible in EU law”.

Another of its comments says,

“these measures will leave public bodies open to extensive litigation, primarily on grounds of race and ethnic origins, but also on grounds of disability, in relation to … discrimination and harassment claims”.

I said—I think at Second Reading—that I regard the ability to communicate as important, indeed essential, in the public sector, as in all other parts of life, but I cannot be the only person in this Committee who has encountered someone whose English is perfect but who cannot make themselves understood.

[Lord Rosser]

I will listen with interest to the Minister’s response to my noble friend Lady Lister’s amendment. As far as I understand it, the Government will accept British Sign Language—or at least they are saying it is provided for in the code—but they do not wish to put that in the Bill. I will wait with interest to see why that is unnecessary or undesirable since I am not quite sure at the moment what the answer is.

I also want to pursue the point made by the noble Baroness, Lady Hamwee. I am sure the Minister will put me right if I have misread this, but the language requirements refer to public sector workers. I take it that means that any private sector organisation with customer-facing roles will not be covered by the Bill. I ask the same question as the noble Baroness. Why is this being geared to the public sector alone? I do not know that I have particular enthusiasm for seeing it apply across the private sector since I have some of the reservations, subject to what the Minister may say, about the extent to which this could lead to some discrimination. No doubt the noble and learned Lord will explain how it is going to work. As I understand it, the definition of speaking fluent English is laid out in the Bill:

“For the purposes of this Part a person speaks fluent English if the person has a command of spoken English which is sufficient to enable the effective performance of the person’s role”.

Who will judge that and decide whether their English is sufficient? Is it open to somebody to complain that that criterion has not been met? If so, what then happens?

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 1st February 2016 Lords Chamber

[Baroness Hamwee]

My Lords, you are more likely to know whether you are disqualified than whether there is a problem over leave to remain.

[Lord Rosser]

I thank all noble Lords who have taken part in this relatively brief debate, and I thank the Minister for his response and for his willingness to look again at this issue of absolute liability with regard to this new offence prior to Report.

My feeling at the moment is that the Government want a defence to be available, but want it to be exercised through the DPP and the Crown Prosecution Service through not prosecuting cases rather than putting it in the Bill. Of course, if the DPP and the Crown Prosecution Service came to the conclusion that they did not think that there was a case for somebody to say that they believed that they had the appropriate status to be in this country and they were prosecuted, when it got to court the court would not have a chance to look at the grounds that had been put forward, because it would be an absolute offence and the individual would presumably be found guilty.

I hope that the noble Lord will look hard at this issue as to whether it is better for the courts to make the decisions on whether an individual has made a case that they genuinely believed they had the appropriate immigration status with regard to this offence. However, I am grateful for what the Minister has said and I beg leave to withdraw the amendment.

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 1st February 2016 Lords Chamber

[Baroness Hamwee]

Indeed, and the sentence before the one which I quoted referred to a system,

“both … more protective of the welfare of vulnerable people and”,

delivering,

“better value for the taxpayer”.

[Lord Rosser]

I am sure the Committee will be relieved to know that I do not intend to say a great deal but, first, I thank everybody who has contributed to this debate and for the views that have been expressed.

--- Later in debate ---

[Baroness Hamwee]

Well, I do not think the question was answered. Has the Minister any news about that? I appreciate that we are taking a long time on this, but the size and substance of the issue justifies it.

[Lord Rosser]

The reason for asking about recommendation 62 was that the Minister sought to tell us there was not a problem because people could apply for bail. But recommendation 62 is based on Mr Shaw looking at the situation with regard to bail. It is in the light of having looked at it that he said:

“I recommend that the Home Office give further consideration to ways of strengthening the legal safeguards against excessive length of detention”.

So I would have thought that the Minister, having referred to the very issue that prompted recommendation 62, might have a view on what the Government’s response was to it. But clearly there is silence from the Government on that particular score.

I do not know whether the Minister intends to respond to the question about the Home Office internal review. As I understand it, the noble Lord, Lord Ramsbotham, has said that he raised the question and has not had a response to it. Is there an internal Home Office review going on? I am obviously not going to get an answer, so it looks like a secret review.

--- Later in debate ---

[Lord Rosser]

It was not, but I am grateful to the Minister for his response.

[Baroness Hamwee]

When the Minister writes, will he explain what he described to me to be functions of UK Visas and Immigration—if I have its current title correct? It sounded as though a degree of duplication is required on the part of the police. One would have thought that the visa implications of all the administration, particularly around students, would have been taken care of without having to go to a central point to register. I agree that the amendment is not necessary, because it does not require an amendment for the Government to undertake a review. However, on the Minister’s comment that the arrangements are not onerous, I wonder why it was so specifically raised with us by Universities UK, which will no doubt read the comments and give us its response. I beg leave to withdraw the amendment.

Psychoactive Substances Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Tuesday 26th January 2016 Lords Chamber

[Lord Rosser (Lab)]

My Lords, as the Minister has said, this group of amendments indicates that the Government have accepted the view of this House, as expressed through the carrying of an amendment on Report, that when sentencing an offender for the offence of supplying or offering to supply a psychoactive substance, it should be regarded as a statutory aggravating factor if that offence took place on prison premises. The only change the Government have made is to replace the reference in the Lords amendment to “prison premises” with “custodial institution”, and we welcome the Government’s decision to accept the view of the House on this matter.

However, this group of amendments also provides for a new offence of possession of a psychoactive substance in a custodial institution as opposed to the far more serious issue of supplying such substances, which is now already covered in the Bill. The new offence of possession will cover inmates, visitors and staff in prisons with, I think, the maximum penalty being two years’ imprisonment, an unlimited fine, or both. Thus, the only new power the new offence would give is the ability further to punish inmates and others in a prison for possessing psychoactive substances for their own use, as opposed to supplying them to others. Since those who run our prisons already have powers to discipline and punish inmates for possessing controlled psychoactive substances, I ask the Minister this: where has the late pressure come from to create this new offence, since the Government did not previously think it should be provided for in the Bill? Has the pressure come from those running our prisons, or from the Prisons and Probation Ombudsman or the Chief Inspector of Prisons, who have both certainly expressed concern about the impact of psychoactive substances but neither of whom, as far as I am aware, has called for a new offence of possession? What they have argued is that better and more effective detection mechanisms need to be in place to detect psychoactive substances in our prisons, along with more frequent drug testing.

Is not the reality that, for those who possess psychoactive substances in the confines of our prisons, where the bullying and violence associated with the existence of such substances has already been identified by the Chief Inspector of Prisons, the need is to regard this primarily as a health issue and to focus on education with an appropriate drug education and awareness strategy? What are the Government actually doing to combat possession of new psychoactive substances for personal use through these means, which are surely likely to be more effective, if the resources are provided, than the new offence proposed in this group of amendments? Is that not the support that those who run our prisons really need to address this issue, along with the resources to provide effective detection mechanisms and more regular drug testing? Are not those the resources that this Government have so far been failing to provide, as, in my opinion, the Minister implicitly acknowledged in his opening comments? What is the Government’s estimate of the reduction in the personal use of psychoactive substances in our prisons that will result from the creation of this new offence, and on the basis of what information was that estimate made?

Finally, will this new possession offence in prison for inmates, visitors and staff also apply to poppers? I ask this in view of the support there has been, including from the Commons Home Affairs Committee, for adding poppers to the list of exemptions to the ban on psychoactive substances because of the potential consequences of such a ban in this case. In the light of the decision by the Home Secretary to refer the issue of poppers for further consideration by expert bodies, do we really want to create a new possession offence in respect of a substance which is popular in some sections of the gay community, has been used recreationally in Britain for more than 30 years and has not so far been banned by any Government, given the likelihood that within the next few months a decision could be made as a result of expert consideration that it should continue to not be banned?

Having said that, and having made my points, I want to make it clear that we certainly do not intend to oppose the Commons government amendments creating the new offence of possession, but we want answers to the points that I have raised.

[Baroness Hamwee (LD)]

My Lords, the situation described by the Minister is very serious and seems to lead directly to issues of prison reform—drugs being one of the considerations—but one would want to look at far wider causes than how concerns about prison manifest themselves in this issue. I wondered what ingenuity might be applied to introduce the issue of poppers, since it would be quite difficult to provide an amendment to the government amendments to deal with that, so I congratulate the noble Lord, Lord Rosser, on finding a way to introduce the subject.

We, of course, will not oppose these amendments, but I must say that we will now have possession of a controlled drug being an offence, possession of a new psychoactive substance not being an offence, but possession of a new psychoactive substance in prison being an offence. In our view, that is too muddled but, of course, at earlier stages of this Bill we were calling for a widespread health-based review of all drugs laws, so I am sure that the Minister will not be entirely surprised that I make that comment.

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 18th January 2016 Lords Chamber

[Baroness Hamwee]

But within the budgets set by the two departments, as we have just heard. I do not think that anyone is arguing against efficiency, but those budgets are being spent, I assume, to their maximum now. So it is a discussion that will go on.

With regard to the point about the regulations and the possibility of extending the scope of the director’s work, the Minister mentioned parliamentary oversight. Of course, that is a very current issue, because oversight only goes so far. Indeed, one might say that it is “sight” but not “change”, because we cannot do anything about secondary legislation.

I want to comment on the points that have been made about trends and the work, other than that to which the noble Lord and I have pointed, on the protection of workers. I realise that the way in which I have worded my amendment was perhaps not the most felicitous. I did in my speech mention things such as monitoring and trends, and I meant that in a very wide sense. I understand, for instance, that the GLA—this is a very important part of its work—has been extremely successful in its relationship with employers and runs a liaison group with employers and agents in the sectors in which it currently works. One might take any survey with a pinch of salt, but a 93% approval rating—I think I have got that right—from employers in their view of their own regulator strikes me as being pretty high, and I for one certainly do not dismiss the points that have been made by the two noble Lords on the other side.

[Lord Rosser]

My Lords, I will be brief in responding, with just one or two points to make. I have listened carefully to what the Minister has said in response but, frankly, I think that we are making a meal out of not being willing, as far as the Government are concerned, to put the primary purpose of the Director of Labour Market Enforcement in the Bill. I certainly do not accept any argument that it would somehow restrict the functions of that particular post.

I appreciate what the Minister has had to say about his willingness to send a letter relating to resources, and I am sure that that will be extremely helpful. It is certainly my intention to come back to the issue of resources in a later group of amendments.

On the issue of the involvement or otherwise of the Director of Labour Market Enforcement in the immigration system, the Minister repeated the part of his letter that I also referred to: that the new director’s role did not cover immigration control and that nowhere in this Bill is the director given the purpose or power to do that, and if he or she did they would be acting outside their statutory powers. This is a genuine question and not a challenge, but if the Minister is going to send a letter on resources, will he consider adding to it an indication of which clauses of the Bill would preclude the director from being involved in any aspect of immigration enforcement and control? I ask that partly in the context of Clause 2, which states that

“A labour market enforcement strategy … is a document which … deals with such other matters as the Director considers appropriate”.

What happens if the director considers that a strategy relating in part to some involvement in the immigration process is appropriate? Is he entitled under that particular subsection to get so involved? It would be extremely helpful if in his letter the Minister would address that point. With those comments, I beg leave to withdraw the amendment.

Asylum Support (Amendment No. 3) Regulations 2015

Debate between Lord Rosser and Baroness Hamwee

Tuesday 27th October 2015 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, we should be proud that we have legislation to support asylum seekers who are likely otherwise to be destitute, so should we not be concerned if the reality of that support fails to achieve that? This House has always taken a measured, thoughtful and insightful perspective and has a particularly good track record of protecting children, who are a focus of this Motion.

In 2000, for “essential living needs”—the technical wording of the underlying primary legislation—support was set at 70% of income support plus accommodation and utility bills for asylum seekers, who are prevented from working and therefore dependent on handouts through what is often a lengthy application process. Last year, the High Court found that the Government’s assessment of the amount needed to avoid destitution was flawed and ordered a review. That review concluded that the rate for a single person without dependants was too low, so these regulations increase it for adults by 33p.

Crucially, a flat rate, at just under £37 a week, was introduced for each asylum seeker regardless of age. This change was to “simplify” the arrangements, which I suggest is a weasel word. The Government argued that families have been receiving,

“significantly more cash than is necessary to meet their essential living needs”,

because more is paid for children in a household. So now a single parent with one child receives £73.90, a reduction of £26 each week, and for a couple with two children the total has gone down by more than £30, from £178 to £147. The reductions for the main family groups range from £14 to £39 or in percentage terms from 12% to 26%. I acknowledge that accommodation and the payment of utility bills are also provided.

Let me again stress that asylum seekers are precluded from working and that asylum support, to quote Mr Justice Popplewell in the judicial review to which I have referred,

“is not ‘temporary’ in a sense which justifies any meaningful distinction from the position of those on income support”,

save as regards the non-cash items.

Noble Lords will be concerned about the cost to the public purse of any rate higher than those provided by the regulations, but that cost cannot be significant. The Explanatory Note to the regulations states that no impact assessment has been prepared because no impact on the public, private or voluntary sector is foreseen.

I realise that some noble Lords may be concerned that a fatal Motion is inappropriate, given that these regulations deal with expenditure, but the thrust of my argument will be about how essential needs are assessed and whether the assessment meets the points raised by the judgment. Whatever one thinks about the reference to there being no impact on the voluntary sector, the statement from the Government that there is no impact on public expenditure seems to answer a constitutional concern very neatly.

These changes were introduced in March but were revoked on the insistence of the then Deputy Prime Minister. They were reintroduced just before the Summer Recess. I tabled this Motion after thinking about the impact of arriving in the UK with nothing but the clothes you stand up in, which are probably inadequate for our climate, probably in a fragile state of health, mentally and physically, not being allowed to work and living on sums which I am told are 60% below the poverty line.

Following the judgment, the Home Office reviewed its calculations, and I am very grateful to the Minister for sending me details of the basic clothing that has to be bought and the food, toiletries, travel costs and other basic items that the Home Office has considered. The sample weekly grocery bills included in the package, which are said to reflect the need to eat healthily, would stand some analysis. I do not have time to include all the material sent to me by organisations which work with asylum seekers, for which I thank them, but I am struck by Refugee Action’s research: 45% of respondents reported an inability to buy fresh fruit and vegetables. Concern about a lack of healthy food was very evident, as well as dietary, cultural and religious requirements, including halal meat, and parents forgoing meals in order that their children could eat. It is not the main part of my argument that with few clothes one needs adequate drying as well as washing facilities and, unless you shop frequently, incurring the cost of travel, a fridge.

The court highlighted that the Secretary of State had not included nappies, formula milk and other special requirements of very young children. The Home Office does acknowledge that babies and children have needs different from those of adults, but there is no assessment, only a rough and ready setting-off against the economies of scale one can achieve in a family. For instance, the sample grocery lists are designed for adults and adolescents. Children’s clothes do not feature. Non-prescription medicines for infants are not included. Colic and teething were the second things mentioned by one of my fellow Baronesses; the first was how fast children grow out of shoes and they, similarly, do not get a mention. Perhaps the Home Office was defeated, as I was, by trying to find a ballpark figure for how many nappies a baby gets through. Of course, it depends, but the number cannot be negligible and certainly is not nil. There is additional support of £3 to £5 a week for babies and children under three. It has not increased since 2003 but, in any event, as the court case showed, it is intended for nutrition. To quote the judgment again,

“nappies, baby clothes and shoes which need to be replaced regularly, baby wipes, creams, soap and shampoo suitable for babies, formula milk, bottles and teats”,

were,

“recognised as essential living needs for this group”,

that is, babies and children, but were,

“left out of account by the Secretary of State in setting the level of support for them”.

It may be my misreading, but I cannot identify these essential living needs for babies and young children in the assessment which underlies these regulations.

If simply existing within these constraints is so difficult, living a life in which a child can develop, learn and grow is close to impossible. Noble Lords will be familiar with the duty on Governments to safeguard and promote children’s welfare and with the UN Convention on the Rights of the Child which include a right to a standard of living adequate for physical, mental, spiritual, moral and social development, as well as a right to play and rehabilitation. Toys and books are other items that do not feature in the Home Office calculations. While it may seem counterintuitive to older generations, access to the internet is an issue, as are the cost of transport to a library or to leisure and religious centres and school-related costs. I understand from the Children’s Society that as families now have to prioritise food above all else, social isolation is increasing.

I have focused on children, but I must add that adults in 2014 reported problems in buying clothes, toiletries, sanitary items, kitchen utensils and so on and in making the journeys that would have given them access to sources of information and advice and that they were forced to employ risky and unreliable survival strategies. These problems must continue following the 33p increase provided by the regulations.

The Secondary Legislation Scrutiny Committee has drawn these regulations to the special attention of the House on the grounds that the explanatory material laid in support provides insufficient information to gain a clear understanding about the policy and intended implementation. My noble friend Baroness Humphreys will, I hope, be able to speak to its report. I refer to a letter to the committee from the Minister for Immigration, who wrote that,

“any extra needs particular to children are comfortably offset by the economies available to a larger household”.

He also referred to economies of scale being part of the approach to support for destitute asylum seekers in Sweden, Germany and France. However, the evidence from the Home Office itself in the case last year, quoted in the judgment of the court, was that,

“other EU systems are not directly comparable because EU law allows for a wide variation in practice”.

Having had access to the explanatory material, I am even more concerned about the simplistic setting-off of items essential for babies and children on the basis of economies of scale.

Finally, I am glad to note that when the Home Office undertakes its next review, it will be holding discussions with organisations working in this area. Given the knowledge that they have and the expertise among academics and others, I urge the fullest consultation, not information by another name. The support is designed to avoid destitution. Does it do so? These regulations clearly do not avoid misery. Some noble Lords might consider a third fatal Motion in two days to be a surfeit of opportunities to express our views, but as a citizen, as well as a Member of your Lordships’ House, I am very concerned. I beg to move.

[Lord Rosser (Lab)]

My Lords, I have tabled a regret Motion in this debate. Although I do not want to repeat everything that the noble Baroness, Lady Hamwee, said, I do wish to make some comments.

As we know, under the Immigration and Asylum Act 1999, support is provided to asylum seekers who have made a claim for asylum, in the form of accommodation and/or cash. The Government first laid regulations introducing a flat rate of support for all asylum seekers of £36.95, regardless of age, in March this year. They reversed those regulations some two weeks later, on the final day of the last Session, as a result of what the then Government described as “reflection”. On 16 July, the Government laid the regulations again; and once again, they provided for changes in the amount of money that could be paid weekly to asylum seekers, and introduced a flat rate for all asylum seekers, regardless of age, of £36.95 per week.

Previously, children under 16 and asylum-seeking families received £53.96 per week, so the reduction represents a cut of—in round figures—about 30%. Yet it has been estimated that bringing up a child in Britain costs an additional £89 per week for the first child of a couple, and an additional £81 for a second child, excluding housing and childcare. Research by Refugee Action shows that 40% of people on asylum support interviewed said they could not afford to feed themselves or their children. Rates of support for asylum-seeking families have effectively been frozen since 2011. Given that asylum seekers are able to work only in exceptional circumstances, the reduction imposed by these regulations can hardly be said to be aimed at removing welfare dependency.

Psychoactive Substances Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Tuesday 30th June 2015 Lords Chamber

[Baroness Hamwee]

My Lords, if the correct way of dealing with subsection (6) is just to refer to the delivery of a substance, are the Government considering changing Section 4 of the Misuse of Drugs Act—I do not have the Act with me—to take out the reference to a controlled drug? I do not expect an answer at this point but I am not immediately persuaded that they should be different.

[Lord Rosser]

Before I respond on what I am doing with the amendment—I shall be withdrawing it; I do not want to appear to suggest that I am going to do something else—can the Minister say whether the Ministry of Justice is interested in seeing this become an aggravating feature in prisons?

Modern Slavery Bill

Debate between Lord Rosser and Baroness Hamwee

Wednesday 4th March 2015 Lords Chamber

[Lord Rosser]

I thank the Minister for his very kind comments. I, too, add my appreciation for the work that both he and the noble Baroness, Lady Garden, have done. I express my thanks to the members of the Bill team. Whether with 100 government amendments they ended up in a state of despair, I do not know, but if they did they never showed it and we are extremely grateful.

I also express appreciation from these Benches to all noble Lords who have taken part in our discussions, whether from a political party, the Cross Benches or the Bishops’ Bench. We have had numerous meetings which have all been extremely helpful. They have certainly all been extremely good-natured and conducted on all sides with a view to trying to resolve any differences of view and to come up with solutions that have been acceptable to us all. I also thank those organisations and individuals who have provided advice and briefings. I am sure we have found them all very useful and helpful. Whether or not we have always taken the road that the advice suggested is another matter, but we appreciated receiving it.

This Bill has been interesting because at heart it has not been a party-political issue. We have all been trying to achieve the same objective. We may have had slightly different views as to how that objective should be achieved, but nevertheless this Bill has avoided some of the rancour that can go with highly party-political issues. As the Minister has said, at the end of the day we have achieved real progress on behalf of the victims of modern slavery and I am sure this Bill and its terms will be much appreciated by all those concerned for what it will achieve.

The Minister said there had been 100 government amendments. They were obviously put down in part as a result of the patience, good nature and willingness to listen of the noble Lord, Lord Bates, and the noble Baroness, Lady Garden, which has been widely commented on in this House and widely appreciated. Of course, in so doing, the Minister has denied us the excitement and thrill of a number of votes, but in view of the outcome of the last one, perhaps that is just as well.

[Baroness Hamwee]

My Lords, from the Liberal Democrat Benches I also thank all those who have already been mentioned. It is only so as not to be tedious that I will not go through the list again but my thanks are sincere.

This has been such a good example of how Parliament can work well across parties, with people of no parties and with organisations outside this House, as the noble Lord said. I have been particularly struck, which I am sure is in no small part thanks to the efforts of both Minsters present, that even at this last stage, with the last of the substantive amendments on the Gangmasters Licensing Authority, the Minister came forward with an amendment which he did not need to make. I do not think there would have been complaints. We would have taken the good faith of what he had said about the work that the Government were going to be doing on this. I know that he will agree that this is the end of the beginning rather than anything further, including at a personal level. I do not know whether the Bill team has counted up for him the number of commitments to extra meetings that he has made following the passing of what will soon be an Act but I know that we will all want to continue to be involved in making sure that the Bill, as implemented, fulfils its promises.

Modern Slavery Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 23rd February 2015 Lords Chamber

[Lord Rosser]

The Government have tabled amendments, to be debated on another day, enabling the Secretary of State to introduce regulations to provide assistance and protection for victims on top of the requirement on the Secretary of State to introduce guidance on identifying and supporting victims. However, as my noble friend Lord Warner has already said, these government amendments do not give any specific guarantees of support and assistance on basic principles of protection and assistance, which would provide appropriate consistency for victims in the way that they are treated within a firm framework; nor do they address the consequences of the national referral mechanism not being on a statutory basis since its introduction. That lack of a statutory basis has contributed to feelings of arbitrariness in the application of the national referral mechanism, which have been compounded by the absence of a formal right to appeal an NRM decision, making the system somewhat unaccountable and potentially unjust.

The Home Office’s NRM review, published late last year, to which my noble friend Lord Warner referred, recognised the issues related to the involvement of United Kingdom Visas and Immigration in the current system and recommended that UKVI be included in the future as a participant in the mechanism rather than as a lead agency. The Government have expressed their commitment to improving the identification of and support for victims of modern slavery and, in the light of their own review, recognised that final decisions about who is a victim cannot be left to UKVI, which has another remit to fulfil, and, whatever the reality, will struggle to be regarded as impartial and open-minded on this issue.

However, further changes are needed. What is being sought in the amendment that my noble friend has moved is not new within the United Kingdom. The Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 and the Human Trafficking and Exploitation (Scotland) Bill both contain provisions for support of victims that go beyond what is contained in this Bill. The result could well be, if this Bill is not further amended, that there are significant differences in support and assistance provided to victims across the different nations within the United Kingdom, which is surely not the objective.

The amendment would place the framework of the national referral mechanism in statute, create a statutory duty on the Secretary of State to set out in regulations the arrangements for a system of victim identification and support and provide for a formal right of appeal against any decision made through the system. However, the Government appear to be saying that they are not prepared to go down this road. The argument in the Minister’s recent letter is that, because this is a time of major change in how we identify and support victims, putting the national referral mechanism on a statutory footing now would be unhelpful and mean a loss of flexibility to improve the system. Instead, the Government have put down an amendment which would provide an enabling power for them to make regulations about identifying and supporting victims.

In his recent letter, the Minister said that the Government had tabled such an amendment to provide an enabling power to place the national referral mechanism into statute by regulations, albeit there does not appear to be any specific reference to the referral mechanism in the amendment. However, there is no reason why adopting the provisions of the amendment that has been moved by my noble friend would lead to potential inflexibility developing, although that is something on which the Minister may wish to comment. The argument that regulations are somehow better for establishing something in statute, such as the NRM, because they can be changed without the requirement for further primary legislation could be used in relation to any organisation or process that is being put on a statutory footing and, in so doing, avoid proper discussion and debate with the ability to amend proposals, which would be provided for by including the terms of this amendment in the Bill.

The amendment which my noble friend has moved, unlike the Government’s enabling power amendment, means that the NRM will be placed into statute on the basis set out in it. The current problems of feelings of arbitrariness in the application of the process of the referral mechanism would be addressed and some consistency achieved in improving the identification and support of victims of modern slavery, to which the Government have expressed their commitment. The Government’s amendment, which is still to be discussed, is simply an enabling power. It is not a guarantee and it is not a requirement. I hope that the Minister will be able to give a helpful response to Amendment 47.

[Baroness Hamwee (LD)]

My Lords, I had my name to an amendment moved in Committee by the noble and learned Baroness, Lady Butler-Sloss—I was about to say my noble and learned friend. That amendment is tabled again today and is much simpler: in order to avoid the need for primary legislation, it is for regulations to be made. Like others, I want the national referral mechanism to be on a statutory basis, and I welcome the government amendments which we will debate on Wednesday—although I have one or two questions about them.

I would be worried about including the new clause proposed by the noble Lord, Lord Warner. To establish it now or “as soon as practicable”—I am not sure what that means in a statutory context, but let us say that it is pretty soon; it is not waiting for the end of a trial, as I interpret it—must, as trials of the new procedures proposed by Jeremy Oppenheim are to be undertaken, risk establishing one statutory basis and then changing it by regulation. Some of the language in the amendment seems to me problematic. The noble Lord will correct me if I am wrong, but I do not think that the term,

“trafficked, enslaved or exploited persons”,

is defined in the same way as victims of,

“slavery and human trafficking offences”,

which is what we have in Clause 41, where the general functions of the commissioner are set out.

I have confidence in what we are being told by the Government about moving to a statutory basis. Without trying to analyse every dot and comma, I would worry that there might be hostages to fortune in the new clause which would require primary legislation to change, rather than the opportunity to rely on regulations, which is what the Government propose.

--- Later in debate ---

[Baroness Hamwee]

My Lords, when I read the Hansard of our first debate on this issue, I realised how much I agreed with the noble Baroness, and I agree with her tonight. I am also concerned about applying the reasonable person test to a child for the reasons she gave and because children develop at different stages. To ask a jury, as I suppose would have to be the case, not only to see what a reasonable adult person would do but to take account of the variables of a child’s development makes the test so complicated that it would be inappropriate. That is the sort of word one uses to be polite, is it not? I do not think we should be requiring this of a child. It adds to the complications and is not the direction in which we should be going.

I have been at meetings where I have heard the noble Baroness say to the Minister that we should not be constructing legislation that allows people to say, “I was trafficked, therefore I should be let off doing anything wrong”. She has been very upfront and quite blunt about that, and she is not trying to resile from that attitude here. I support her amendment.

[Lord Rosser]

I shall be very brief. As has been said, the Government’s amendment removes the need for child victims of trafficking or slavery to prove that they did not have a realistic alternative and puts the onus on the prosecution to show that they acted unreasonably. However, as has been said by my noble friend Lady Kennedy, trafficked children will still need to pass a reasonable person test to benefit from the defence, which will, essentially, presumably require an adult juror to decide whether a similar child in similar circumstances would have acted in the same way.

I assume that the Minister will respond to this point anyway, but given the inherent restrictions of the defence in the Government’s amendment to Clause 45 and that it applies only to offences committed as a direct result of trafficking, slavery or servitude, do the Government maintain that it is necessary to ask a potentially traumatised and vulnerable child victim then to pass an additional test of reasonableness and, in effect, show that they have behaved reasonably to achieve legal protection? When the Minister responds, if he feels unable to give a helpful reply—which I hope he will feel able to do—is it the Government’s intention that it is necessary to ask a child victim, potentially traumatised and vulnerable, to have to pass this additional test of reasonableness, given that there is considerable restriction of the defence in the Government’s amendment to Clause 45 in that it applies only to offences committed as a direct result of trafficking, slavery or servitude?

Counter-Terrorism and Security Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 26th January 2015 Lords Chamber

[Baroness Hamwee]

My Lords, in moving this amendment I will speak also to Amendment 74. The noble Baroness, Lady Smith, also has an amendment in this group.

Clause 15 deals with appointments which an individual can be required to keep. Following comment from the current Independent Reviewer of Terrorism Legislation, this takes advantage of the legislation in order to require individuals to attend appointments, for instance, in connection with deradicalisation. I really do not like that term: perhaps I might say appointments that would help the individual return to or lead a more comfortable and normal life. Amendment 72 would add that the individual could request somebody other than the specified person.

Different individuals respond in different ways to different counsellors, if I can use that term in a very wide sense. This work has to be dealt with case by case, and it would be a pity if it were to fail because of the individual and his counsellor simply not getting on and there not being a sensible opportunity to change the personnel. We all know of people who we simply cannot rub along with for reasons that sometimes we cannot even quite identify.

Amendment 74 would provide, in connection with such appointments, that the Secretary of State would be deemed to have given permissions for travel to enable the individual to attend appointments and, crucially, will not unreasonably withhold permissions to attend appointments relating to deterring other people from involvement in terrorist-related activity. We are all aware—it is a matter of common sense—that returning fighters may have a positive role in deterring other people. In the debate on Thursday on the latest proscription order that has been introduced, the noble Baroness gave an example of a woman trying to return to this country who was disillusioned with what she had found—I think—in Syria. That sort of disillusionment should be harnessed, and I would like to find every way of making this legislation positive as well as inevitably negative. I hope that my noble friend can assure the Committee in that connection.

I gave the Bill team notice of this matter this morning—if it has not yet reached the Minister, I will understand if he cannot answer—and will pick up an issue that the independent reviewer raised. This matter was also taken up by the JCHR: the question of privilege against self-incrimination. The Government’s response to the independent reviewer’s report was to say that this would not be appropriate. The Government referred to a “blanket approach”. Can the Minister unpack that a little today? I beg to move.

[Lord Rosser (Lab)]

My Lords, our Amendment 73 is in this group. As has been said, Clause 15, on appointments for people on terrorism prevention and investigation measures, allows the Secretary of State to require an individual to attend meetings with such persons as the Secretary of State may specify, at such locations and at such times as the Secretary of State may by notice require. The specified persons may choose the time and place of the meeting. The clause is expressed in general terms and the purpose of the amendment, which is a probing amendment, is to give the Government the opportunity to say more about what kind of meetings an individual would be required to attend, for what purposes or objectives and over what period of time. It would also be helpful if the Minister could say if assessments will be made of the outcome of these meetings and to whom the assessments, if they are made, will be given.

Our probing amendment provides for the Secretary of State to be able to instruct an individual on a TPIM to attend deradicalisation programmes, since we think it is important that the Secretary of State should be able to require people to attend Channel meetings and appointments and possibly those relating to other parts of the Prevent programme. However, I hope that in his response the Minister will not only address the specific point covered in this probing amendment but talk in more depth about how the Government envisage using powers under Clause 15.

Counter-Terrorism and Security Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 26th January 2015 Lords Chamber

[Lord Rosser (Lab)]

My Lords, Clause 18 enables the Secretary of State to make schemes requiring a carrier to seek authority from the Secretary of State to carry persons on aircraft, ships or trains that are arriving or expected to arrive in the United Kingdom or leaving or expected to leave the UK. The purpose of the amendment is to provide for an authority-to-carry scheme made by the Secretary of State to be set out in regulations, subject to annulment in pursuance of a resolution of either House of Parliament.

The Delegated Powers and Regulatory Reform Committee considered that Clause 18 constituted,

“a significant delegation of powers to the Secretary of State, since authority-to-carry schemes will have the effect of regulating the persons who may lawfully be transported by a carrier to and from the UK”.

The Home Office has stated that authority-to-carry schemes are not subject to parliamentary scrutiny because,

“there will be provision on the face of the Bill providing guidance as to the circumstances in which a class of passenger may be specified for the purpose of the scheme”.

No doubt the Minister will indicate in his response where this guidance appears on the face of the Bill and whether the Government feel that this represents sufficient guidance on how and in what circumstances the powers should be used. The Delegated Powers and Regulatory Reform Committee said that, unless the Home Office provided more compelling evidence on why the power to make schemes should not be scrutinised by Parliament, the Bill should be amended so that the powers are exercisable by statutory instrument.

This amendment gives the Government the opportunity to say rather more about the need for these powers and why they consider that they should not be scrutinised by Parliament. There are already similar statutory provisions in existence that apply only inbound to the United Kingdom, as I understand it. Will the Minister provide some information on how these existing powers have been used, how frequently they have been deployed, in respect of how many people, what nationalities and classes or categories have been affected and from which locations they have been travelling to the United Kingdom? Will the Minister also set out the extent to which the provisions in Clause 18 are an extension of the existing arrangements—in other words, exactly what are the additions in Clause 18 to what we have already?

I am sure that the Government will be more than aware of concerns that have been expressed that the provisions in the Bill could be used to exclude passengers or crew of particular nationalities or particular classes or categories, and that if these powers are not used in a sensible and proportionate manner they could enhance the likelihood of radicalisation, particularly among nationalities or classes or categories affected, who might come to the conclusion that they were being picked on and singled out, with a resultant potential increase in feelings of alienation and a potential decrease in the desire to provide crucial co-operation.

It would be helpful if the Minister could respond to that point and the others that I have made. This probing amendment gives the Government the opportunity to place on record how and when, and in respect of whom, they intend the powers in Clause 18 to be used and why they consider them necessary, as well as the opportunity to respond to the point on parliamentary scrutiny made by the Delegated Powers and Regulatory Reform Committee. I beg to move.

[Baroness Hamwee (LD)]

My Lords, to pick up the noble Lord’s penultimate point, Clause 18 says in terms that the scheme must specify various classes in subsection (2).

I have tabled Amendments 101 and 102 in this group. The first is narrower than the amendment tabled by the noble Lord, but would require regulations to encompass the requirements of a scheme whose breach may attract the imposition of a penalty. We are told that there will be regulations imposing penalties. It seems to me that the regulations for the underlying requirement, at the very least, ought to be within the regulations before one and that it is not appropriate for there to be regulations imposing penalties if the requirements themselves are not subject to the same sort of parliamentary process.

My second amendment would provide, not in detail, a more structured procedure than is suggested by subsection (4): the opportunity to object to a proposed penalty. It suggests that a reference to an appeal would be more appropriate. If there are to be penalties there should be arrangements for challenging them and possibly even for third party or perhaps judicial determination—but whatever there is, the rather loose terminology of “object to” is inadequate.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I saw that report in the Independent, and, living quite near to Heathrow as I do, I felt it particularly vividly.

The noble Lord’s concerns are well founded. I wonder, however, whether it is not simply a matter of designating areas where the flight of drones is restricted, period, rather than dealing with the burden of proof—whoever carries it—regarding whether a drone is being flown for the purposes of terrorism. I suspect that the answer will be: “Thank you for raising it and a lot of people are looking at it”. I hope that that last bit is true. My comment is that it might be better to deal with it over the wider point and not to get into the confusion of whether it is terrorism related. The outcome could be pretty similar whatever the purpose.

[Lord Rosser]

My Lords, unmanned aerial vehicles, as has been said, are used in a military context and by public bodies in the UK, and for surveillance, among other uses. Surveillance UAVs are regulated, although, as my noble friend Lord West of Spithead has said, some people question how effective this regulation is.

I will comment in particular on the use of small non-surveillance unmanned aerial vehicles. UAVs weighing under 22 kilograms are entirely unregulated. They can be bought and sold freely. There is no tracking mechanism. Perhaps most importantly, they can easily be purchased for self-assembly, which makes them easy to modify, perhaps for the kind of purposes set out in my noble friend’s amendment. There is a big concern around airports. As has been said, a UAV got within a few feet of an Airbus jet leaving Heathrow. Even a small UAV could cause engine failure in a jet, in the same way as a bird strike, even if not being used for obviously hostile purposes. While airports have extensive protection from lasers, and even from surface-to-air missiles, there is no specific provision, as I understand it, for UAVs. Apparently, this is a concern of the British Airline Pilots Association and air traffic controllers, and suggestions have been made for UAV no-fly zones around airports.

I hope that, in their reply, the Government will be able to show that they have assessed the risks and are taking appropriate action because, subject to what the Minister says in response, it is not obvious that there is a coherent direction of policy, at least on smaller UAVs if not larger ones, with the light-touch regulation to which my noble friend Lord West has referred.

Counter-Terrorism and Security Bill

Debate between Lord Rosser and Baroness Hamwee

Tuesday 20th January 2015 Lords Chamber

[Lord Rosser (Lab)]

My Lords, as the Minister has said, the amendment provides for legal aid for proceedings before a district judge in the light of an application for an extension of the 14-day period. We fully support the Government’s change of heart on this point about legal aid. As the Minister mentioned, the amendment states that its provisions are subject to the exclusions in Parts 2 and 3 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. So that we are clear on exactly what those exclusions mean, it would be helpful if the Minister could clarify what their impact would be in reality, in respect of legal aid being provided, or not, in applications for an extension of time for retention of travel documents, which is the issue covered by the amendment.

[Baroness Hamwee (LD)]

My Lords, I too am glad that the Government have addressed the matter of legal aid. There was clearly going to be a call for that. My question, which is a sort of prequel, is about whether advice would be available to a traveller at the point when travel documents are seized and retained. Legal aid is becoming confined to proceedings rather than advice, but this is an important point in the whole process.

--- Later in debate ---

[Lord Rosser]

As mentioned in the debate on the previous amendment, the group of amendments to which Amendment 3 belongs requires the Secretary of State to commission an annual report to be laid before both Houses by the Independent Reviewer of Terrorism Legislation on the exercise of the powers contained in Chapters 1 and 2 of Part 1 and in Part 2, which relate to the seizure of travel documents and temporary exclusion from this country. The amendments also require the Secretary of State to publish annual figures on the usage of these powers, and for an annual review of the arrangements made by the Secretary of State under the powers in paragraph 14 of Schedule 1 to be published and laid before both Houses.

I think I am right in saying that in its recent report the Joint Committee on Human Rights drew attention to the fact that neither of the new powers in Part 1 concerning the seizure of passports and managed return are made subject to independent review. It seems that the Minister told the JCHR that the Government had considered independent review, but apparently they were satisfied that any review of the extensive new powers in Part 1 should not extend beyond that carried out by parliamentary Select Committees. The Joint Committee on Human Rights referred in its report to the fact that the Independent Reviewer of Terrorism Legislation had commented on this issue, saying that if the powers we already have under the Terrorism Act need independent review, then surely the new powers in Part 1 also need independent review. It could be said that if that review took place it might help to inform a discussion on whether the powers needed reviewing if there was a sunset clause in the Bill. The Joint Committee on Human Rights said that, like the Independent Reviewer of Terrorism Legislation, it believed in principle that the operation in practice of the new powers to impose restrictions on the travel of terrorism suspects should be subject to independent review, and therefore it was recommending that the powers in Part 1 concerning passports and managed return should be subject to review by the independent reviewer.

In moving Amendment 3, I am also speaking to the other amendments in this group. I hope that the Minister will be able to give a positive response to them.

[Baroness Hamwee]

My noble friend Lord Carlile has already referred to the fact that the independent reviewer can, does and did look at far more than is spelled out in statute. My inclination would be to spell that out, but to spell out that the independent reviewer’s powers extend to all terrorism legislation. I have half a clause drafted to that effect for later in Committee stage. That does not mean to say, as these amendments suggest, that that should necessarily be annual. It may need to be done more than annually. Some legislation—I think it is the asset-freezing legislation—requires quarterly reports. As time goes on, subject to the eventual decision about a sunset clause, it may be not so necessary to report as frequently. Perhaps more importantly, I would prefer that a report was not subject to commissioning by the Home Secretary. A future Home Secretary might decide not to commission a report, and we can all see where that might go.

This is an important issue. I am glad that it has been raised, and it has been covered quite substantially already this afternoon. I am not convinced that this is quite the way to go about it. We need to look at the comments made by David Anderson on the scope of the role and the balance between its constituent parts, and not pick bits off in individual parts of the Bill.

--- Later in debate ---

[Baroness Hamwee]

Amendments 22, 42 and 43 in this group are also in my name, and Amendment 11 is in the name of the noble Lord, Lord Rosser.

Amendment 9 has rather an automatic, almost knee-jerk—or perhaps wrist-jerk—wording that anyone who has dealt with contracts for more than five minutes is likely to produce; namely, if something is in someone’s possession, does that adequately cover the situation or do you need to refer to the item as being under that person’s control? Again, this issue is about workability. I raised it with the Bill team some two or three weeks ago, before Christmas, and asked what would happen if it were not the individual but a companion who was holding the travel documents, and what powers would be available to get at those documents. When people are travelling as a pair or in a group, an individual does not always carry his own documents at every point. I understand that the amendment’s wording is wide enough because I think that the documents must always come into the individual’s possession, but I thought that it was worth getting clarity on that in Committee.

Amendment 22 seeks to amend paragraph 6(4). That paragraph states that on reviewing the retention of travel documents:

“The relevant chief constable must consider those findings and take whatever action seems appropriate”.

That is a wide phrase and I do not think the Minister will be surprised that my point boils down to whether he can share with the Committee what is anticipated to be within the range of “appropriate” and how this will be dealt with. Will it be covered by guidance, a code of practice and so on?

My other amendments in the group, Amendments 42 and 43, concern the perception of discrimination in the exercise of these powers—an issue that I have already raised today. I accept that this is an immensely difficult area; I have referred in the amendments to training, including equalities training, and recording the performance of the exercising of the powers. The latter is certainly covered by the draft code, which I saw after I had tabled the amendment. However, I will probably not be the only Member of the Committee who is aware of concerns about discrimination or who has received from one organisation a copy of a briefing to its members to make representations to MPs. It says:

“The proposed legislation could bear serious consequences for British Muslims including”,

and lists a number of items. It then states:

“This is a deeply troubling piece of legislation for British Muslims and will change our lives forever it is passed in its current form”.

I have no easy answer on how to deal with this but the Government must, I am sure, have been considering the perception, particularly in the light of the fact that those against whom it is sought to exercise those powers are likely—that may be the wrong word—to come disproportionately from Muslim communities. I felt that the matter had to be aired for us to seek some reassurance, which I hope the Minister will be able to give. I beg to move.

[Lord Rosser]

I have Amendment 11 in this group, to which I wish to speak. Schedule 1 includes the procedure for the authorisation by a senior police officer for the retention of a travel document, and states in paragraph 4:

“The document may be retained while an application for authorisation is considered. Any such application must be considered as soon as possible”.

The effect of my amendment, which is more a probing amendment, is to provide a time limit within which the application for authorisation must be considered—namely, within 12 hours—rather than leaving it somewhat open-ended, as provided for in the Bill.

No doubt, the Minister will indicate in his reply why it was felt desirable not to lay down a specific maximum time limit but to leave the provision without any time limit at all by using the phrase “as soon as possible”. The length of time taken for the application for authorisation to be dealt with is presumably—although I should be grateful if it could be confirmed or otherwise—in addition to the period during which the travel document can be seized, as laid down in the Bill. If that is the case, it is important that such authorisations are not delayed but are dealt with expeditiously. How long do the Government believe it will take for applications for authorisation to be considered, and how long do they consider is reasonable in that context? Who will decide whether it has been dealt with as soon as possible? Who can take any action, and through which channels, if they consider that the application has not been dealt with as soon as possible? How will they obtain the evidence for that?

I was going to ask the Minister: in what circumstances do the Government envisage that it would not be possible to consider an application within 12 hours? It may be that he will say in reply that he considers that an application should be dealt with in considerably less time than that but, bearing in mind my amendment, which aims to find out more about the reasons for the government wording, it would be helpful if the Minister could say what kind of factors leading to a delay—for example, beyond the period laid down in my amendment —the Government would believe were still compatible with dealing with the application as soon as possible. I hope that he will respond to these points, either now or subsequently.

Modern Slavery Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 8th December 2014 Lords Chamber

[Lord Rosser (Lab)]

Our amendment proposes a new clause to the Bill providing for the Director of Public Prosecutions to issue guidance on the charging of known or suspected victims of human trafficking, and for a prosecution of a trafficked, enslaved or exploited person to be reviewed by the Director of Public Prosecutions before going to trial.

The first part relating to guidance reflects a feeling from a number of groups and organisations involved in these cases that it is far from clear how the Crown Prosecution Service deals with the public interest test when looking at victims of trafficking. We need to reduce uncertainty about when victims will be prosecuted. A model for the clarity of guidance called for in our amendment is the DPP’s guidance in relation to a totally different issue—assisted suicide.

On authorisation for a trafficking prosecution, which is also addressed in our amendment, we want to establish the principle that prosecutions of trafficking victims should happen only in exceptional circumstances, which is why we wish prosecutions of those who have had a national referral mechanism decision or are awaiting one to be authorised at the most senior level, namely the Director of Public Prosecutions.

Trafficked victims can be badly damaged and vulnerable and can wait 12 months in remand before a trial goes ahead, which only adds to their problems considerably. Evidence from the Helen Bamber Foundation to the Joint Committee on the Bill referred to the need for women to feel supported—to feel that they would be believed and that they would not normally be prosecuted. Allowing prosecutions to go ahead goes along with what traffickers would have told their victims: that they would do better to stay with them than go to the authorities and be prosecuted and deported.

Similar evidence from the Poppy Project discussed the 55 women that it has helped in the past year who were identified as trafficking victims only once they were in prison, usually on remand. Another example from the Poppy Project involved an adult woman who had been underground for 11 years in a brothel. She escaped and used a passport that her trafficker gave her and that she thought was legal. It was not and she ended up being imprisoned for immigration offences, even though she was not the one who had committed the crime. No one, it seems, investigated the trafficker who had given her the passport and who was able to carry on recruiting and procuring more victims. While the crime the woman committed was not committed during enslavement, it undoubtedly arose from her trafficking.

One consequence of the examples to which I have referred is that it seems almost certain that more trafficking victims have been prosecuted in this country than traffickers. There is a need for all those coming into contact with people who have been or may have been trafficked to be able to recognise the offence and that we do not find such cases ending up in court unless authorised at the top level as being appropriate to prosecute. I hope that will also be the Government’s objective and that the terms of our amendment will be accepted.

Finally, I would like to raise one point on the issue that my noble friend Lady Kennedy of Cradley has so effectively raised in relation to the reasonable person test. My point is simply a query, since I shall await with interest the Government’s response to her amendments. On the reasonable person test in Clause 45(1)(c), I ask the Minister whether the reference to the reasonable person “in the same situation” as the slavery or trafficking victim means that the assessment of whether a reasonable person would have had no realistic alternative to doing the act which constitutes the offence will be based on a view of what a reasonable person who had had experience of suffering the same kind of traumatic experiences and effects as the victim would have done. If so, how many people, in the Government’s view, would be able to make that assessment?

[Baroness Hamwee]

My Lords, like the noble Baroness, Lady Kennedy, I welcome the principal provisions, but I share her concerns. I thought that she was entirely clear in speaking to the amendments. Trafficking and slavery are trafficking and slavery. Not to be prosecuted for offences committed when one is trafficked or enslaved is a matter of human rights. Those rights should not be dependent on the individual’s characteristics; they are completely separate issues. I do not need to repeat everything that the noble Baroness said, but I will quickly refer—the title is probably longer than the reference—to Policy and legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking, by the Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings. She said:

“The penalization of a person for acts that they have committed as a cause or direct consequence of being trafficked must be seen in that context:”—

the context of human rights—

“not only does it unjustly punish and stigmatise victims of serious crime; it would also violate these human rights objectives”.

I come back to that. It is not a small point, but it is very specific and clear, and I fear that we will be muddying the waters if the wording remains as it is.

Serious Crime Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Tuesday 28th October 2014 Lords Chamber

[Lord Rosser]

My Lords, the purpose of our amendment, apart from giving an opportunity to debate the law relating to domestic abuse, is to provide for the Secretary of State to consult on ways of strengthening the law in relation to domestic abuse, which is perpetrated overwhelmingly against women, with that consultation taking place within six months of this Act coming into force. Our amendment also sets out some of the issues that the consultation would consider, without it being an exhaustive list.

Those issues are: should a specific offence or offences criminalising coercive and controlling behaviour, or a pattern or acts of behaviour within an intimate relationship, be created? Should the violent and sexual offenders register include serial stalkers and domestic violence perpetrators and be managed through the multiagency public protection arrangements? Should a new civil order be created to place positive obligations on serial stalkers and domestic violence perpetrators? Should the breach of domestic violence protection notices and orders be a criminal offence? Should domestic violence protection notices and orders extend across European boundaries?

One of the problems, as the noble Lord, Lord Wigley, said, is that the Government’s definition of domestic abuse, adopted from the general definition of the Association of Chief Police Officers, is not reflected in the law. The Government’s definition is:

“Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members, regardless of gender or sexuality”.

The abuse,

“can encompass, but is not limited to … psychological, physical, sexual, financial … emotional”.

However, the current law does not capture the Government’s non-statutory definition of domestic abuse as there is no statutory framework around it. Currently, offenders can be prosecuted only for acts of physical violence, when such violence is often the culmination of psychological and minor physical abuse which constitutes domestic abuse, which is outside the reach of the existing criminal law and does not get reported until it has actually escalated into physical violence—which, to put it mildly, is a bit late in the day.

The figures have already been quoted, but I shall repeat them. According to the Home Office, last year 7% of all women reported having experienced domestic abuse, which is equivalent to 1.2 million women a year. Two out of three incidents involved repeat offenders. The reality is that on average women do not report abuse until there have been at least 30 incidents. Since the age of 16, according to statistics published by Women’s Aid and the Home Office, almost one-third of women have experienced domestic abuse. Interestingly —although perhaps that is not the appropriate word—one in three women who attend an A&E department does so because she has been domestically abused.

As the noble Lord, Lord Wigley, said, according to Women’s Aid, only 6.5% of domestic violence incidents reported to the police lead to conviction and 25% of domestic violence cases that are passed on to the Crown Prosecution Service result in no action being taken. There is an issue around the successful prosecution of cases. In some cases, of course, the victim withdraws their statement to the police of domestic abuse or violence, does not come to court, or comes to court and gives evidence that is contrary to their original statement. However, bearing in mind that on average women do not report abuse until there have been at least 30 incidents, the strong likelihood is that any reluctance to go through the legal and court process is not because the domestic violence and abuse did not actually occur, but for other reasons.

An important reason for consultation, including on the specific points referred to in our amendment, is that following the introduction of specific domestic abuse laws in the United States, there was apparently a 50% rise in women reporting the behaviour, and with it a large increase in the number of perpetrators being brought to justice, along with a decrease of over one-third in incidents of abuse. One key area is the need to consult, as the Government have done, on criminalising abuse that involves coercive control in a domestic setting as well as making domestic abuse itself a separate criminal offence.

A further issue for consideration is whether the prosecution of domestic abuse and domestic violence cases should be subject to statutory time limits. Domestic abuse and violence has often gone on for some time before an incident is reported by the victim. Under the current arrangements, many earlier incidents that have occurred and which make up the totality of the abusive behaviour, cannot also be the subject of a prosecution along with the incident that finally led the victim to decide to report what had been happening.

Our amendment also calls for consultation to consider a new civil order which would be intended to prevent further contact that amounts to domestic violence, would prohibit the perpetrator from engaging in certain activities, perhaps including contact with the victim and the children of the victim, and would exclude the perpetrator from the victim’s home. Such a consultation could also consider whether a breach of this civil order should be a criminal offence and whether such notices and orders should extend across European boundaries, with offending histories and restrictions being shared.

The issues to which I have referred and those set out in the amendment providing for consultation are ones that outside organisations and experts in this field have advocated. The government consultation on coercive control has recently concluded. It would be helpful to know, first, what steps the Government intend to take following that consultation and, secondly, whether the issues referred to in my Amendment 49C and others to which I and other noble Lords have referred, are also either being considered by the Government or were part of the consultation that has just concluded. I hope that the Minister will be able to indicate in his response what issues or courses of action the Government are now considering following their consultation on strengthening the law on domestic abuse.

[Baroness Hamwee]

My Lords, I am in no doubt that there needs to be more effort, more prosecutions, more resources, better practice and better training in the area of domestic abuse. I find it difficult to comment on the amendment moved by the noble Lord, Lord Wigley, because it is essentially a trailer for provisions that we do not have before us, but the first steps must be about implementing the existing legislation in a consistent and robust fashion: prosecuting for physical and non-physical forms of abuse, both of which are possible. However, successful prosecutions are rare. I have mentioned training; there is a need for specialist training throughout the criminal justice system. The issue is hugely important to ensure, among other things, that the basics of violence in a domestic situation are properly understood.

The series of actions that constitute abuse are crimes now. Interestingly, the domestic violence charity with which I have the closest links, Refuge—I do not know whether I need to declare an interest in that I chaired it a while ago—commented in its response to the Government consultation that it is concerned that creating a separate domestic violence offence could in fact lead to it being treated less seriously and being downgraded. We know that the phrase, “It’s just a domestic”, is still hanging around. The charity points out that there is a risk that even physical offences may be downgraded, so I think that there is a debate to be had on that. It does not necessarily follow that badging what is a domestic crime would lead to it being regarded in a different way.

Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2014

Debate between Lord Rosser and Baroness Hamwee

Monday 7th July 2014 Grand Committee

[Baroness Hamwee (LD)]

My Lords, this is consequential on previous debates. It is amazing how much and how quickly all that agonising goes out of one’s head, and one has to remind oneself of the subject of it. I am glad that we have had the chance to consider the draft code of practice and the covering SI. What concerns me is the delay in the introduction of the review arrangements, which I assume is because it has simply not been possible to get the training in place quickly enough. I am not suggesting that the better provisions of the legislation, as they are after the work done on the then Anti-social Behaviour, Crime and Policing Bill, should be delayed. However, could my noble friend confirm that training is on track for the more senior officers, who will be detailed to undertake the reviews, and how supervision will be carried out in the mean time? I notice that the code says that it will be delayed until the relevant provisions come into force. However, in distinction, the paragraphs about audio recording say that there is no requirement to follow the code until next April. That is the time when the review provisions are to come into force, or so we are told. I do not know whether I am seeing a problem where there is none. Perhaps my noble friend has information, although he may not, about the proportion of officers who will be trained to undertake the more senior role.

I shall raise a point again that I raised during the passage of the Bill. Will training cover how officers should deal with the family or other accompanying passengers of the individual who is being held or detained? I think that I mentioned during the Bill’s passage that I had come across an example, which I hope was a rare one, of an individual being told that, if he insisted on waiting for a legal representative, it would be a problem for his elderly mother, with whom he was travelling. In other words, inappropriate pressure was put on him to forgo a right. I am also not clear what happens if, because of detention, passengers miss their flights. I hope that my noble friend can also confirm that the facilities for this work are satisfactory and appropriate. We have talked about short-term holding facilities a good deal, of course.

The code refers to legal privilege, where the restriction seems to be on copying, not on looking at it. You cannot erase something from your head although, obviously, there would be a restriction on using it—but what happens if a privileged document is copied when it should not be?

Paragraph 41 suggests that consultation with a solicitor is invariably not allowed. This is in the examination part of the code, not the detention part. I had thought that it was always allowed, but not necessarily with a solicitor of the individual’s choice. Is that only when the individual is actually detained?

Paragraph 42 states that an examining officer may grant a request that a named person is informed of the examination at his discretion and that:

“Where reasonably practicable, the request should be granted”.

Is it discretion or reasonable practicality?

Paragraph 45, which is where we get on to detention, states that the power may be exercised,

“where the examining officer considers it is appropriate to do so”.

The last bullet point of paragraph 46 states that:

“Detention is an option (during the first hour of examination)”.

Is that bullet point just about the first hour of detention? If I am asking too many questions, I have no doubt that my noble friend will ask to write to me.

However, I will raise a couple of matters which I hope he can confirm now. First, paragraph 7.2 of the Explanatory Memorandum reads:

“Examining people at ports and the border area contributes daily to plan, finance, train for, and commit their attacks”.

I shall not reread that, but when the Minister looks at it, he will realise that some words must be missing. I do not think you detain people in order to help them plan their attacks. I have had a word with the Minister’s officials, and I think they think it is a typo, but quite an important one.

My second question is on similar lines, but I think I am on dodgier ground. It is on annexe A to the code, which explains to the detainee that he is detained to determine essentially either whether he is involved in terrorism or whether he is entering or leaving Northern Ireland. I thought, or perhaps I had assumed without applying much thinking, that it should be “and” rather than “or”. Looking at Schedule 7, Northern Ireland is dealt with in a separate paragraph. Will my noble friend confirm that detention can be solely to establish whether somebody is going into Northern Ireland without any terrorism-related aspect? I am sorry to have slung that at my noble friend. I looked at this rather too close to the time of the debate to give him notice of the rather detailed points which I have just raised.

[Lord Rosser (Lab)]

I will be giving the Minister a somewhat easier time than he has just been given by the noble Baroness, Lady Hamwee.

I thank the Minister for the explanation of the purpose of this order, which brings into operation a code of practice for examining officers and review officers in respect of the exercise of the powers under Schedule 7 to the Terrorism Act 2000 and under Schedule 8 to that Act where the powers are exercised in connection with Schedule 7, as amended by Schedule 9 to the Anti-social Behaviour, Crime and Policing Act 2014. The code of practice revises the preceding code of practice to take account of amendments made to Schedules 7, 8 and 14 to the Terrorism Act 2000 by the Anti-social Behaviour, Crime and Policing Act 2014.

The Explanatory Memorandum refers to commencing the remaining provisions of Schedule 9 to the 2014 Act this month to coincide with the issue of the code of practice brought into operation by this instrument, with the exception of the provision to which the noble Baroness, Lady Hamwee, referred requiring review of the detention of persons detained under Schedule 7, which are being delayed until next April to allow sufficient time to develop, accredit and train all examining and review officers. I shall pursue some of the points she raised. Will the Minister say how many examining and review officers still require to be trained, how long the training of each officer takes and why the required training has not been completed by this month and has had to be delayed? The need for such training must have been known for some time. Could the Minister also spell out the impact of this delay, in practical terms, including any impact on the provisions of this instrument, which comes into force at the end of this month?

The Explanatory Memorandum also refers in paragraph 4.5 to consultation on this issue having taken place with “National Business Leads”. Perhaps the Minister could remind me who or what this organisation is or these people are.

As the Minister said, the Explanatory Memorandum states in paragraph 7.2 that:

“Schedule 7 is an important part of the UK’s counter-terrorism strategy and key to the UK’s border security”.

The memorandum goes on:

“The changes to Schedule 7 in the Anti-Social Behaviour, Crime and Policing Act are intended to reduce the potential scope for Schedule 7 powers to be operated in an unnecessary or disproportionate way, whilst still retaining their operational effectiveness”.

It then lists the changes made under the 2014 Act. They include ensuring access to legal advice for all individuals examined for more than one hour. In that regard, could the Minister clarify what legal entitlements people have when detained under Schedule 7? Will they have access to free legal advice?

The changes also include reducing the maximum period of examination from nine hours to six hours. The Government and others recently expressed concerns about the numbers going from this country to Syria apparently to be trained and engage in violence in the current conflict, and the possible consequences of that. In the light of concerns about what might happen if and when these people return to this country, with or without others, and what their intentions might then be, is it the Government’s view that all the changes made by the 2014 Act, including reducing the maximum period of examination from nine hours to six hours, actually enhance our ability to minimise the risk of those potential threats? Do the Government believe that the new code of practice provided for in this order—reflecting the amendments made to Schedule 7 to the 2000 Act by the 2014 Act—contribute to rather than potentially diminish our security in the present climate?

I simply conclude by commenting that the Explanatory Memorandum states that,

“the majority of consultation respondents agreed that the revised code clearly reflected the changes made to Schedule 7 powers in the”,

2014 Act. What it is not able to say is that the majority of respondents agreed that in today’s climate all those changes are still appropriate. We will not oppose this order, but I hope that the Minister will respond directly to the points and questions I raised, as well as those of the noble Baroness, Lady Hamwee.

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Thursday 3rd April 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, this is the first amendment in a group also containing Amendment 25 tabled in the name of the noble Baroness, Lady Smith, along with several other amendments in her name. It is clear that there is widespread agreement that the provisions dealing with residential tenancies proposed in the Bill are complicated and risky—complicated in their operation and risky in the scope there may be for discrimination. However, I do not need to re-rehearse our previous debates today.

The Government have been very clear that—I am using a term that I hope will carry less baggage than some—the scheme will be tried out and tested in a single area from October this year, that formal evaluation will be produced, and that decisions on implementation more generally will be taken in the next Parliament on the basis of the evaluation via a negative resolution order. I have used pretty much word for word the language of my noble friend Lord Taylor in Committee on 10 March, which noble Lords can read in Hansard. Because I accept all that he said, I have therefore chosen to build on it.

It will be entirely obvious to the Minister what assurances I am seeking in my amendment: consultation as to the criteria to be applied to assess and evaluate the scheme. I acknowledge that I have of course pre-empted that consultation by reference to an equalities impact assessment. We can all think of a number of criteria, but we can also think of large numbers of organisations and individuals with expertise in the field who could helpfully have an input into the construction of the evaluation programme, and they should have an input. So my amendment proposes that,

“the Secretary of State shall … consult such persons as she considers appropriate”.

That is not a get-out because it is a well understood formula. I should say in parenthesis that I am glad that I have been allowed to say “she” of the Secretary of State and not “they”, which I understand is a new form of drafting that was imposed on me last week. The amendment would then require a report on the proposed criteria to be laid before Parliament, thus, if you like, hedging with precautions in advance. That is what the amendment is about. I hope that the Minister can reassure me that such arrangements as I have included in my amendment or others that are equally as reliable and transparent will be made. My amendment refers to a pilot scheme. I do not use the language of “phasing” or “rolling out” because I do not accept the implication inherent in those terms whereby, after the first application, further operation is unstoppable and that first application is to be in a single area.

I have two major concerns about the amendment of the noble Baroness, Lady Smith. It mentions,

“one or more pilot schemes”.

There could, therefore, be more than one pilot to start with, and we know that in the Commons the proposal similar to that made by those on the noble Baroness’s Benches would apply to a London borough, a local authority and a county in each of England, Scotland and Northern Ireland. Alternatively, it could mean successive pilot schemes, which is rather close to a rollout. I realised this morning that it is ironic that I am more sceptical about this than the Opposition Benches.

My second concern is that the detail of that pilot or pilots would be in secondary legislation because the noble Baroness’s amendments take out all the other clauses dealing with residential tenancies. Therefore, secondary legislation would have to deal with every aspect, every component and—importantly—every exclusion from the scheme. The legislation would have to come to Parliament in the context of a negative resolution order. There would be far less opportunity than we have had in successive stages of primary legislation to scrutinise the detail. In addition—this is a fundamental distinction—we have been able to discuss and arrive at changes, which is not something that one can readily do, if at all, with secondary legislation.

Therefore, a single pilot process—with codes of practice and exclusions, for example, for hostels, refuges and much other accommodation, including student accommodation—is a far less risky route. I am not given to quoting Members of the other House but my honourable friend the Member for Cambridge got it right when he said that if pilots were imposed on more than one area, if they went wrong, they would go wrong in more than one area. I beg to move.

[Lord Rosser (Lab)]

My Lords, I should like to speak to Amendment 25 and to our other amendments in the group that are consequential.

Before I proceed, the comment that I should like to make to the noble Baroness, Lady Hamwee, is that if, under the terms of our amendment, the Government got it wrong over the pilot, their chances of getting a further extension of their scheme—bearing in mind that we have called for primary legislation if that were the case—would of course be extremely remote. That would be an incentive for a Government who wanted to see their scheme extended to get the pilot right and to get it fair. For that reason, the noble Baroness’s objections to our amendments are, to put it mildly, a bit thin.

This debate relates to the part of the Bill on which we spent the most time in Committee, because many noble Lords had questions about how the provisions would work in practice. However, despite the time spent debating the Government’s proposals, a great many of the questions remained unanswered. We agree with the principle of making it more difficult for illegal migrants to rent property. In Committee, we proposed a new clause seeking to put in place a pilot to be undertaken before the provisions could be put fully into effect.

We have now tabled amendments that would remove the entire chapter and replace it with a power for the Secretary of State to undertake a pilot along the same lines. If the pilot is successful, the Government could then come back to primary legislation to implement it fully. Given the substantial number of concerns that have been raised about the detail of this part of the Bill, and the need to ensure that it works well and receives proper parliamentary scrutiny, this is an eminently reasonable proposition.

A range of organisations have expressed serious concerns about the impact of the proposals on landlords and residential tenancies. The vast majority of landlords—82%—do not support the proposals, according to a survey by the Residential Landlords Association. Giving evidence in the Commons, the chairman of the National Landlords Association said:

“It is going to impose an administrative burden on landlords who are not experts in immigration … The principle of checking identity is not so much the worry as the logistics of how that is done and understanding the documentation”.

In the same evidence session, the policy director of the Residential Landlords Association said that,

“we think that the Bill and its provisions are not workable and will not be effective in achieving the objectives set out”.—[Official Report, Commons, Immigration Bill Committee, 29/10/13; col. 43.]

Of course, one of the key concerns is whether these measures will be workable. The Government have published a draft code of practice for landlords. We asked a number of questions about this in Committee, including: who will be included in the provisions? How will tenants who have never rented out a property know about their obligations in relation to subletting? How will landlords familiarise themselves with, understand and recognise all the potentially relevant documentation?

We also asked questions about enforcement, including: how will it be established that a landlord had acted in breach of their duty? How will the fine be collected? Will provision be made for landlords who repeatedly break the law? Will Home Office staff become overwhelmed as a result of landlords using the telephone notification to the Home Office that they have conformed to the requirements in the Bill as a form of shield?

The Government’s replies on these points were, for the most part, very general and not very helpful. For example, on enforcement, it was stated that the provisions would be enforced,

“as part of the normal business of enforcing immigration law”,—[Official Report, 10/3/14; col. 1653.]

that they would be applied on a “light-touch basis”, and that the Government would be relying on landlords or agents to give evidence that they have complied with the prescribed requirements.

One thing we asked for in the light of these concerns was for the code of practice to receive greater scrutiny, and we are pleased that the Government have listened and require the code to be laid before Parliament and be made by order, but they should have gone further and at least made it subject to the affirmative procedure. We are also pleased by the Government’s commitment that the code will be ready before the first phase of the rollout begins.

A further concern, which we also heard about in Committee from many noble Lords, relates to the impact on vulnerable citizens, including victims of domestic violence, those with chaotic lifestyles, and pregnant women. We know that landlords already avoid renting to groups they perceive as higher risk, and given the difficulty in identifying documents and the potential liability for landlords, it is likely that landlords will want to be on the safe side and ask for a passport in every case, but many vulnerable people do not have a passport.

On this, again, the Minister’s answers were not particularly helpful. He said that the Bill provides,

“discretionary powers for the Secretary of State to authorise a tenant who has no lawful status to rent property”.—[Official Report, 12/3/14; col. 1798.]

How will that work in practice? There is a real danger that people, vulnerable people in particular, will either become homeless or be driven into the hands of unscrupulous landlords.

There is also widespread concern about the potential discriminatory nature of the proposals. These concerns have been expressed by a number of organisations, including Shelter, Liberty and the Catholic Church. We also heard them expressed in Committee. Again, we are pleased that the Government have listened and that the code of practice in relation to discrimination will receive greater scrutiny.

--- Later in debate ---

[Lord Rosser]

I am disappointed by the Minister’s reply. In Committee, he said that,

“more should be done to tackle these types of unfair recruitment practices. Ministers will actively consider how best to protect British workers from this type of discrimination and we will seek to bring forward proposals shortly”.—[Official Report, 17/3/14; col. 19.]

We do not seem to have made any progress at all. The Minister is clearly not prepared to pick up what was inherent in my suggestion: that I would be happy to withdraw my amendment if he gave a commitment to come back with the Government’s own amendment at Third Reading.

[Baroness Hamwee]

I appreciate that I have not spoken in this debate but colleagues around me are confirming what I heard, which was that the Minister told us—for my part, I rather fear it—that we might hear shortly from the Government. Never in the years I have been in this House have I known “shortly” to be as short as a week or two. I have been listening carefully and I understand the problem, which everyone who has spoken on this has acknowledged. I wonder whether to have come back at this stage or be prepared to come back within a couple of sitting days, as it would be at Third Reading, would do justice to the severity of the problem that has been articulated.

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Wednesday 19th March 2014 Lords Chamber

[Lord Rosser (Lab)]

My Lords, the amendment in this group to which I wish to speak is Amendment 81AA, which would require independent legal guardians to be appointed to look after the interests of children trafficked into the United Kingdom. The amendment proposes the insertion of a new clause but this is by no means a new issue. A similar amendment was recently voted on and narrowly defeated during the passage of the Children and Families Bill. The Committee will be aware of the tremendous work of the noble Lord, Lord McColl of Dulwich, who has championed this issue for a very long time, and indeed the work of other noble Lords, including the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Royall of Blaisdon. We have been pursing this matter and the shadow Home Secretary has raised it a number of times.

We are returning to the matter again because it still is very much a concern. At least 450 children were identified as possible victims of trafficking in the past year alone. NGOs and police all say that it is most likely that the numbers of people trafficked, including children, are far higher than the national referral mechanism statistics record. A shocking two-thirds of children who are rescued from traffickers go missing again because the system to protect them is not strong enough.

Most of those children come from countries outside the European Union. They are here alone and have no knowledge of the country that they are in. They often speak and understand little English, and do not know who to turn to or how to find help. In the debate on this issue during the Children and Families Bill, noble Lords heard evidence from research commissioned by the Government, which highlighted the desperate need of trafficked children for specialist, independent support. That research, and the report by the Children’s Society and the Refugee Council, entitled, Still at Risk, which was published in September 2013, recommended the provision of “an independent trusted adult” whose,

“role would be to ensure”,

that all child victims are,

“able to understand their rights, ensure that their voice is heard in decisions that affect them and are supported effectively through the different legal processes that they are engaged in”.

Amendment 81AA would provide such a person.

When this was discussed in the Children and Families Bill, the Government argued that there was no need for new independent guardians for trafficked children since there are a number of professionals with responsibility for supporting a child under the Children Act. They pointed instead to the introduction of draft regulations and statutory guidance which they claimed would address all the faults in local authority care, rendering specialist guardians unnecessary. I suggest that that misunderstands the role of the independent legal guardian.

Child victims of trafficking find themselves in a foreign country and to access help they are expected to deal with many different state agencies; that is, local authorities, social workers, police, investigators, immigration officials and so on. When dealing with each organisation, they must engage with a different set of people and must repeat their story again and again, with all its traumatic details. This process is distressing and unhelpful for a child in unfamiliar surroundings. Children can become alienated and distrustful of those trying to help them, which leaves them vulnerable to retrafficking. Local authorities do not always seem to appreciate that young victims of trafficking often maintain links with the person who brought them to the United Kingdom because they speak the same language. A guardian with legal responsibility for the child would understand the dangers.

The role of the legal guardian is an entirely new role that no existing agency currently provides. That person would be a constant for the child in an ever changing world. They would accompany the child as they relate to all the different state agencies and would also have the right to speak on behalf of the child if the child requests it so that the child does not have to keep repeating their painful story if they do not want to.

Noble Lords will be aware that the Government recently published their draft Modern Slavery Bill but that does not provide for an independent guardianship system, so we are raising the matter again here. There is a growing coalition of support behind this idea. Trafficked children should have access to a trusted and independent advocate or guardian who is legally responsible for them and their interests in order to do what we are failing to do all too often at present; that is, to protect children who are the victims of trafficking in human beings from repeated trafficking and repeated abuse. I hope that the Minister will give a sympathetic response to this amendment.

[Baroness Hamwee]

My Lords, as the noble Lord has said, the issue of guardianship for victims of child trafficking is one that has support right around the House. When it was raised during the Children and Families Bill, I said in reply to the noble Lord, Lord McColl, that when he first raised this some years ago I had not been persuaded. However, particularly through his arguments, I came to be persuaded of the need, in part from the point of view of someone who has practised as a solicitor and needs someone from whom to take instructions. That is one of the functions that a guardian would fulfil. The draft Modern Slavery Bill, which is the subject of pre-legislative scrutiny, has been drawn up from the point of view of the victim and, like the noble Lord, I think that this would fit absolutely in protecting and assisting victims.

I have a couple of comments about the issues raised by my noble friends with regard to children and young people without immigration status. I first want to draw attention to a report published last year by the ESRC Centre on Migration, Policy and Society at the University of Oxford, entitled No Way Out, No Way In about irregular migrant children. Its summary, which is a tiny part of a report that goes on for many pages, states:

“Our estimate regarding the high proportion of irregular migrant children who are either born or have spent most of their childhood in the UK invites a refocus of public understanding of this population”.

The second issue that I would like to mention is the very uncomfortable reporting that we have seen, not so much of the children to whom my noble friend Lady Benjamin drew attention, although some would fit into this category, but of wonderful young people—just the sort of young people we want to have in this country —who reach the age of 18 and are accepted at university and told they cannot go there. They are told that they need to go “home”. I am not saying that they are any more deserving than the other children in question, but I hope that the Government have been embarrassed by the reports because they should be, just as they are about the reports of the children assisted by Kids Company and others of whom we have heard.

When I tried to draft this clause, I really did not know how to do it. It seemed that so much is a matter for the Secretary of State’s discretion. I hope that when the Minister replies, he can assist the Committee with some clarity about what issues are matters of discretion and how that discretion comes to be exercised.

Immigration Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 3rd March 2014 Lords Chamber

[Baroness Hamwee]

My Lords, with regard to Amendment 23, the Minister is of course right that there is a reference further on in the new subsection that refers back to what I was seeking to take out, so my amendment is not complete. However, by mentioning that, he has drawn my attention to something else that I would like to pursue. New subsection (1B) says that an order under paragraph (b), which is about other information subject to an order by the Secretary of State,

“may specify only information that can be obtained or recorded by … external examination”.

That raises the question of whether only external examination can be used for new subsection (1A)(a), concerning,

“information about a person’s external physical characteristics”.

Perhaps he can confirm that there can be only an external examination to obtain information about the first limb in (1A).

The Minister talked about new technology, which I assume comes within the word “information”. My concern was to understand what physical characteristics there might be that were not included in (1A)(a). I accept that technology will advance, but it is what the technology is being used to identify and gain information on that concerns me. This may sound tedious but it is actually quite important. I do not know whether he is able to take the matter any further tonight; if not, I would be glad to pursue it after this stage.

[Lord Rosser]

Perhaps I could add one or two comments. I thank the Minister for his reply and for the amount of information contained in it. I think that I recall him saying that “liable to be detained” was not a new phrase, but I am not sure how extensively it has been used before in immigration law.

I listened carefully to what he had to say about the situation of those whom immigration officers would not want to arrest. I will read his response carefully in Hansard, but at the moment I am not entirely clear what happens when someone whom they do not want to arrest declines to enable their fingerprints to be checked. I am not sure whether they will just be allowed to go or if in fact they will be arrested, which raises the question of why the existing powers are not adequate and why this new terminology is needed. As I say, I will read very carefully what he had to say.

Finally, I asked how many cases there have been in the past 12 months of people who would have had their fingerprints taken and checked if the “liable to be detained” provision in the Bill had been in force who could not have their fingerprints taken under the current wording in the Immigration Act 1971. I was not particularly expecting the Minister to come up with an instant response, but since that calculation is presumably the justification, at least in part, for this change in legislation that we are considering, I hope he will be able to provide me with an answer to that question later on.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Rosser and Baroness Hamwee

Tuesday 14th January 2014 Lords Chamber

[Baroness Hamwee]

My Lords, I thought that at the previous stage the noble Lord, Lord Condon, had it right when he said he feared that,

“the real mischief they and we might seek to address is not the absence of suitable offences but the absence of action”.—[Official Report, 4/12/13; col. 255.]

I asked questions of my noble friend about sentencing, the aggravating nature of that type of offence and so on, and I am afraid that I have not changed my mind about those two aspects.

I am interested in the definition of “worker” in the noble Lord’s amendment. One qualifies, as it were—that is not quite the right term but he will know what I mean—only if one is “physically present”. Reading that, I wondered how that works with his requirement for malice in subsection (2) of the proposed new clause. When I saw the word “malice”, I thought that he had in mind, for example, someone who—possibly for very personal reasons—does not like people who work in jobcentres but then discovers that his neighbour works in a jobcentre. Is that malice towards all such people for that sort of reason or are we talking about something very personal? Does it mean being in the workplace or in the sort of situation that I have suggested, hanging around until one’s neighbour comes out of the house and having a go at him for that reason?

I was also interested in subsection (4) of the proposed new clause. If I remember rightly—I have not gone back to check—I think that on the previous occasion the noble Lord talked about “evidence from a single source”. That seems to be a matter for the courts. We should not tell the courts how to assess evidence. If he is saying that there is some restriction on the way they are working at the moment, it may be a different matter—but, again, that made me wonder where the noble Lord was going with this.

On the aggravating nature of the offence, we have to be careful not to devalue the importance of that approach to sentencing. This, of course, is not the only aggravating factor for the courts, but the Sentencing Council does a very important job in identifying appropriate aggravating factors.

[Lord Rosser]

My Lords, my noble friend Lord Foulkes of Cumnock very eloquently made the case in support of this amendment. It is really about supporting victims of assault by a member of the public in the course of their employment and in the course of earning their livelihood. I suppose that the question is whether one feels that the matter should be dealt with by regarding that kind of assault as one of a great many aggravating factors in an assault case, or whether it should be regarded as a separate offence. The noble and learned Lord, Lord Hope of Craighead, referred to the impact of the new offence in Scotland in relation to assaults on emergency workers.

It is worth looking at some of the figures that have emerged. Those from the HSE’s Crime Survey for England and Wales show that there were nearly 650,000 reported incidents of violence at work and that workplace violence comprises some 31% of all reported crimes of violence. The HSE found that the occupations at greatest risk were those that involved working with the public. That is hardly a surprise, but nevertheless it was confirmed by the HSE.

Reference has been made to the position of shop workers. USDAW, the union that represents them, undertakes members’ surveys, which show that in the past year 4% of retail staff were attacked at work—which is equivalent to some 120,000 assaults—and 34% were threatened with violence. In addition, 17% of those attacked did not report the offence—and we can all speculate as to why that might have been the case.

People at work—in their employment, in the course of earning their livelihood— are in a different situation from most other people. The reality is that an assault on somebody at work can be quite traumatic. It can lead to a situation where somebody is reluctant or fearful to go back to their place of work and be in exactly the same situation that they were in when they were attacked, facing a constant stream of strangers, any one of whom could become violent. One can also find cases of people assaulted by a member of the public in the course of their employment where the assault leads to them actually losing their job and their livelihood, because they are so traumatised that they are no longer able to return to the same job at the same location and to carry on with that employment. Those are among the victims who feel that sentencing probably does not reflect the effect that that kind of assault can have on their lives.

As has already been said, many people in the course of their employment are actually put in the way of danger by their work. They are the kind of people who have already been mentioned: public transport staff, fire workers, security staff, emergency service workers and shop workers. They often have to deal with people who are aggressive, drunk or attempting to break the law. Those workers are the kind of people who can be working late at night, sometimes on their own and in areas of anti-social behaviour which most people voluntarily avoid for their own safety. Workers in that situation do not have that particular option.

Some staff in the course of their employment dealing with the public have an obligation to seek to enforce the law. Those, for example, who serve alcohol are required to obtain proof of age from the purchaser. They are required to refuse to serve someone who is drunk and they are required to refuse a proxy sale of alcohol—although not of tobacco, as we were discussing earlier. Those kinds of actions are all major triggers for assaults on staff, and reference has already been made to the situation in that regard. In the USDAW survey, some 30% of assaults arose from challenging age-restricted sales, and some 15% related to people who appeared to be committing theft.

Those actions, carried out by people in the course of their employment who are required to seek to enforce the law, place workers at risk. If they are not undertaken—particularly in relation to refusing to serve people with alcohol when they are under age, or refusing a proxy sale of alcohol—staff can be liable for prosecution or for action to be taken against them for failing to carry out their duty to seek to enforce the requirements of the law where it applies.

There are, therefore, differences in the position of people who are assaulted in the course of their employment. They cannot run away; they cannot move somewhere else; they have to go back to their employment after an assault and be in the same situation in exactly the same circumstances as they were, facing members of the public and probably fearing that the same kind of thing might happen again. In some cases, it can cost them their jobs because the experience has been so traumatic that they feel they cannot carry on. Many are put in danger by the nature of their work or the kind of job they have to do; many are required to enforce the law as part of their work.

Like my noble friend Lord Foulkes of Cumnock, I hope that we will get a more sympathetic response to this amendment. There is a case for having a separate offence of assault on a person in the course of their employment by a member of the public, and for not regarding it as simply one of a large number of aggravating factors for the offence of assault.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Rosser and Baroness Hamwee

Wednesday 4th December 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I understand, and can picture, some of the incidents that have been described. When I used to have to go up to Manchester regularly at weekends, I took to checking whether Manchester United was playing at home and took care not to travel back on trains which might be full of supporters. Having said that, I agree with the noble Lord, Lord Condon, on this. I would be very reluctant to make this a new criminal offence and add it to the statute book. Indeed, I would be reluctant to add any new criminal offence to the statute book unless it was absolutely necessary. Will my noble friend say a word about aggravating factors in sentencing? Would this be a matter for sentencing guidelines, which I know are not under the control of the Government given that we have a Sentencing Council? If an offence has been committed in this context, a sentence can be imposed without the need to create a new offence. I take the point that has been made about that. If a new offence were created in this context, the same problems would arise in pursuing a prosecution as arise with existing offences.

[Lord Rosser (Lab)]

My Lords, the amendment we are considering, which was moved so ably by my noble friend Lord Foulkes of Cumnock, would create a specific offence of assault against workers in public-facing roles. Reference has been made to various people who fall in that category such as shop workers, and they also include bus drivers and health workers. The proposed offence would carry a period of imprisonment not exceeding 12 months or a fine not exceeding level 5 on the standard scale.

Reference has been made to statistics provided by organisations such as the Association of Convenience Stores, USDAW and the British Retail Consortium. The latter estimated that 30,000 attacks on shop staff were reported last year. Women comprise a high percentage of staff in shops, and that is the case with a great many public-facing roles. Given that it is their employment, if they see a potential incident arising it is not particularly easy for them to walk away from the scene.

It has been argued that there is no need to create a different category of offence. I think that the issue is fairly clear cut. The noble Lord, Lord Condon, and the noble Baroness, Lady Hamwee, have expressed the same view on this issue and we wait to hear whether it is shared by the Minister. However, I think a lot of people feel that those who are attacked and assaulted in the course of their employment are entitled to greater protection than might be the case in other circumstances.

The current sentencing guidelines for assault indicate that an offence committed against those working in the public sector or providing a service to the public should be regarded as an aggravating factor adding to the seriousness of the offence. However, as has been said, that is just one of a number of possible aggravating factors. There is a wide range under the sentencing guidelines for common assault offences of this kind.

We are also aware that many of these assaults do not seem to be reported where they happen in the course of people’s employment, which is what we are talking about. The survey by USDAW, as I think my noble friend Lord Foulkes mentioned, showed that 17% of retail staff who had suffered a physical assault at work had not reported it as they believed that nothing would be done. There is also a feeling among some employees that many cases which are reported are not prosecuted, even where the assailants are known to the police.

Reference has been made to the separate offences of assaulting police officers in the execution of their duty and, in Scotland only, assaulting emergency service workers. The offence in Scotland in respect of emergency service workers is defined by the Emergency Workers (Scotland) Act 2005 and is, I think, subject to a maximum of nine months in prison or a fine of up to £10,000. Prosecutions using that Act have grown year on year since its introduction. There were 324 prosecutions in 2010-11 and, in total, there have been just over 1,100 prosecutions since the Act came into force, with the implementation of the Act raising the profile of assaults on those who provide emergency services.

The evidence indicates that if we had a separate offence in England and Wales of assaulting public-facing workers—we are talking about people in contact with the public in the course of their employment—with tougher penalties than for common assault, that would increase the likelihood of cases being prosecuted. It would restore what is clearly waning confidence among many public-facing workers that the judicial system will protect them, and it would act as a deterrent, as preliminary evidence from Scotland shows that while the number of prosecutions for assaulting emergency service workers has gone up, the number of such incidents has declined. That suggests that the message may be getting over, but I am afraid that attacking and assaulting people in the course of their employment when they are carrying out that role in direct contact with the public just will not be accepted. There has to be a change in attitude towards assaults of this kind, and I suggest that that can only properly be reflected in making clear that the penalties will be higher than they would be for other kinds of assaults.

The present arrangements in England and Wales do not appear adequate, as assaulting a public-facing worker in the course of his or her employment is not a separate specific offence and is regarded as being only one of a number of potentially aggravating factors relating to the crime of common assault. The result is that such assaults are not regarded as being much more serious than many other assaults in the way that applies, as it should, to assaults on a police officer in England and Wales and emergency service workers in Scotland.

If the Government want to assert that this Bill is about putting the victim first, they should recognise that public-facing workers are all too often victims of assault in the course of their employment, and they should accept this amendment, which creates a separate specific offence, with tougher penalties, for assaults of this kind.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 2nd December 2013 Lords Chamber

[Lord Taylor of Holbeach]

The noble Lord has made that point several times. It is up to other noble Lords to judge whether it correctly identifies anti-social behaviour, which is what the Bill seeks to address.

I would like to talk about the subject of this debate—that is, the specific proposals in Clause 91. As the law stands, thuggish behaviour against neighbours or in the locality of a tenant’s home may be a basis for eviction. However, looting, or other riot-related criminal activity, by tenants further away from their homes would not usually be taken into account. I do not think that is right, although the noble Lord may think that it is. People who wreck other people’s communities through riot-related offences should face the same consequences that they would if they carried out such behaviour in their own neighbourhoods. Clause 91 enables that to happen. It also sends out a strong and important message for the future that if you get involved in a riot, whether that is near your home or not, there may be consequences for your tenancy.

However, I emphasise that we would expect landlords to seek to evict under this new ground for possession only exceptionally. With regard to the concern raised by the Joint Committee on Human Rights—that the ground amounts to a punishment and may disproportionately affect women and children—it is important to note that safeguards will be in place. The new ground is discretionary, and so, just as is the case for the existing discretionary grounds for possession for anti-social behaviour, the court would have to consider whether it was reasonable to grant a possession order in the light of the facts of the case. The impact on the whole household and any young children is likely to be a relevant factor in this.

Amendments 56AM and 56CC to this clause would mean that possession action under the provisions of Clause 91 could be triggered only where the tenant, and not a member of their household, had been convicted of an offence. Amendments 56B, 56C, 56D and 56E would mean that only convictions for “serious offences”, as defined for the purposes of the new absolute ground for possession, could trigger possession action under the provisions of Clause 91.

As I have said before, it is an established principle of tenancy law that a tenant is held responsible for the behaviour of members of their household. There is also an issue of wider parental responsibility here. In practice, though, the landlord would need to prove that it was reasonable to grant possession, and we consider it unlikely that the court would find this to be the case where a child of a tenant has, as a one-off, got caught up in, and committed, an offence during a riot. Clearly, a tenant, or any other parent, should be held more responsible if their teenage child makes their neighbours’ lives a misery over a period of years than if they just let them out of their sight for a few hours. Similarly, in practice we would not expect this new ground for possession to be used where the conviction was for a minor offence. We would expect these provisions to be used only exceptionally and in relation only to serious riot-related offences. Therefore, a landlord might, for example, consider possession action where one of their tenants had been convicted of a serious assault on a police officer, but not where they had stolen a pair of trainers from a shop. Again, even if a landlord were to apply for possession on the basis of a minor offence committed at the scene of a riot, we would not expect the court to consider it reasonable to grant possession. Therefore, we would, in practice, expect the impact of Amendments 56AM, 56CC, 56B, 56C, 56D and 56E to be limited.

I recognise, however, that, through these amendments, my noble friends—I was also grateful for the speeches made by my noble friends Lady Berridge and Lord Faulks—are seeking to ensure that we establish in law that only serious offences committed at the scene of a riot by a tenant could provide a trigger for possession under the new ground. I am, therefore, ready to consider these amendments further, without commitment, in advance of Report.

Amendments 56CA and 56CB would enable the court, when granting possession against a tenant, to order that the tenancy be transferred to another individual. There may be occasions, for example where relationships break down, where it is appropriate for a court to determine to whom within a household a new tenancy should be granted. In general, however, decisions about who should be allocated available social housing locally should rest with the landlord or, where nominations agreements are in place, with the local authority. They, not the courts, understand who is most in need of social housing locally, and are best placed to make decisions in the light of that knowledge.

In short, I believe that these provisions make entirely appropriate changes to the discretionary grounds for possession available to landlords. It will still be for the landlord and the courts to decide whether possession is reasonable in all the circumstances. That said, in relation to the riot-related provision, I will, as I have indicated, take away Amendments 56AM, 56CC, 56B, 56C, 56D and 56E and consider them further. With that assurance, I commend Clauses 90, 91 and 92 to the Committee.

[Baroness Hamwee]

My Lords, I confess that I am a little confused by the comments of the noble Lord, Lord Rosser. As I understand it, he supports the concept but takes issue with differentiation between tenures. However, in supporting the concept and saying that different tenures should be dealt with in a similar way, I assume that he is talking about confiscation of a property. However, we do not have to go there as that is not what is provided by the Bill. Obviously, I am very grateful to my noble friend—

[Lord Rosser]

I said that no redress of comparable severity would apply to an owner-occupier as opposed to somebody in rented accommodation.

[Baroness Hamwee]

As I said, the noble Lord is concerned about differentiation. That is where my logic—perhaps not his—takes me. I am grateful to the Minister. My amendments on the transfer of a tenancy sought to ameliorate the situation, although I recognise landlords’ concern. As regards what is reasonable for a court or a landlord to do, I am not sure whether the reasonableness concerns the seriousness of the offence or the nature of the household—for instance, whether there is a child in the household. I have a bit of a difficulty there. Having said that, my noble friend made my argument extremely well. I am very glad that this matter will be considered further and will not take up any more of the Committee’s time on it tonight. I look forward to coming back to it on Report, whenever that is. It is probably quite soon. I beg leave to withdraw Amendment 56AM.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Rosser and Baroness Hamwee

Wednesday 20th November 2013 Lords Chamber

[Lord Rosser]

We acknowledge that there was broad support for the requirement that the youth offending team be consulted before an injunction under Clause 1 is sought against somebody under 18. However, there appears to be no timescale for the consultation with youth offending teams, and as a result there could be—not necessarily will be—delay. For that reason, the time taken for consultation with local youth offending teams should be reviewed. That is the purpose of the amendment. Surely we need to keep an eye on how long the process is taking and to check on whether there are hold-ups when the legislation comes into force.

I appreciate that the Government’s view is that the necessary consultation with the relevant youth offending team will take place with a proper sense of urgency and should not be unduly delayed by protracted consultations. A clear commitment to a review would further strengthen that position and make clear the need to carry out such consultation expeditiously. That is what those who may be victims certainly wish. In the light of the statement in the draft guidelines that the consultation requirement does not mean that the youth offending team could veto the application, will the Minister say what would constitute consultation being completed? Does the person applying for an injunction have to have received a response from the youth offending team for consultations which have been completed? If the response is that the youth offending team is not in favour of the injunction, would discussions have to continue before the terms of Clause 14(1)(a) had been met?

Would a failure by the youth offending team to respond at all within a certain timescale mean that consultation could have been deemed to have taken place? If so, what would the Minister consider a reasonable minimum period for a response? Would a failure to respond by a youth offending team within a certain time be grounds for an application without notice under Clause 5? Could the youth offending team oppose an application for an injunction under Section 1 for someone under the age of 18 in court? Will the court hearing an application for an injunction under Section 1 have to be told the outcome of the consultation with the youth offending team and the view of the youth offending team?

[Baroness Hamwee]

My Lords, I have Amendment 21J in this group. Consultation can mean a lot of things and sometimes mean different things to different people, depending on what they want it to mean. I have pretty much given up tabling amendments which add, to “consult”, “and have regard to the outcome of the consultation”, having been told quite frequently that of course that must be implicit. However, I have met times when the consulter has not recognised that.

We heard from the Minister on my previous amendments that local authority social services have a role when someone under the age of 18 is involved as the respondent or potential respondent to an IPNA. My amendment would insert a reference to,

“the local authority for the area where the respondent resides”,

meaning of course the social services part of the local authority. I am seeking consultation, without trying to define it, of the local authority as well as of the youth offending team.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Rosser and Baroness Hamwee

Wednesday 20th November 2013 Lords Chamber

[Lord Rosser]

I hope the noble Lord will accept that the definitions the Minister was giving seemed to come under the requirement to do specified things, not achieve specified results, which is what I had asked about.

[Baroness Hamwee (LD)]

My Lords, my much less elegant interpretation of these provisions is that paragraph (c) is about “how” and paragraphs (a) and (b) are about “what”. There is an absolute requirement to achieve paragraphs (a) and (b) but there can be only a reasonable requirement—and a choice of ways—as to how to to get there.

[Lord Taylor of Holbeach]

I would see it as being about outcomes as opposed to methodology. Noble Lords are familiar with this concept and understand the particular example.

Moving on to Amendment 22NG, while I cannot think of a specific example where it would not be necessary to include the specified time for actions to be undertaken on a notice, I am not the front-line officer dealing with anti-social behaviour on a daily basis. Those officers have told us that the additional flexibility afforded by the new powers is exactly what they want. They do not want to be constrained on a time limit. This is directional and they want to be satisfied that the direction of travel is working properly. To put a time limit on it may be counterproductive. The amendment would erode that flexibility.

The noble Lord, Lord Rosser, asked what is meant by “reasonable”. We have discussed “reasonable” before. In this case, the power will be used by council enforcement officers and police officers. These are trained professionals who make this judgment on a daily basis. What is reasonable in one situation is not reasonable in another. The judgment has to be made on a case-by-case basis. I hope that the noble Lord will accept that.

The noble Lord, Lord Harris, came up with the notion of CPNs for a string of shops promoting payday loans or for an off-licence. The conduct has to be defined as being unreasonable and a notice that imposes unreasonable requirements can be appealed. However, if an off-licence has benches outside encouraging people to congregate and engage in conduct that would be detrimental, it could be required through a CPN to remove the benches. That would be a perfectly reasonable request.

Except for the seven examples that I owe my noble friend Lord Greaves, I hope that I have given noble Lords the answers to their questions—but I appear not to have done so.

EU: Eurojust (EUC Report)

Debate between Lord Rosser and Baroness Hamwee

Monday 4th November 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, my point is a general one. I apologise to your Lordships if it is trite—it probably is—but to me it is blindingly obvious that you cannot play the ball if you have taken your bat home. Every noble Lord will have had experiences of negotiation in some context, if only the domestic, and we know that if you choose to walk away you have to pick your moment. You have to be clear what the deal breaker is and know what your own compromise would be. However, until then you have to remain part of the story, not least because you risk losing respect if you are not prepared to get stuck in and stay stuck in to the project. You certainly risk losing influence. My noble friend’s phrase that you are “looked on as petulant” was absolutely spot on. You risk not being regarded as a serious player if and when negotiations resume. Indeed, you risk being thought of as having disqualified yourself from further negotiations in a serious way if you have distanced yourself.

[Lord Rosser (Lab)]

My Lords, I thank my noble friend Lady Corston for her introduction to the report from her committee and for the clarity of the committee’s case made in its report for the recommendation that the UK opt in to the negotiations on the proposed Eurojust regulation.

As has already been said, the European Union Agency for Criminal Justice Co-operation—Eurojust—was established just over 10 years ago. Provisions in the 2009 Lisbon treaty agreed by the member states included provisions that required the EU’s institutions to pass legislation in the form of regulations to determine Eurojust’s structure, operation, field of action and tasks. The proposed Eurojust regulation seeks to fulfil the member states’ aims.

Eurojust is involved in major crimes such as drug trafficking, human trafficking, terrorism and financial crimes, which cross borders and require co-operation between different jurisdictions if they are to be successfully investigated and prosecuted. Since 2003 there have been just under 1,500 requests from EU member states for co-operation with Britain through Eurojust. The objective of Eurojust is to support member states in conducting investigations, and we are very supportive of the value of the work that it undertakes.

As has already been said, the proposed Eurojust regulation will apply to the United Kingdom only if the Government indicate a decision to opt in by 21 November. The Government’s position in the House of Commons when it was debated there, I think last week, was that we should not opt in to the new Eurojust proposals at the outset of negotiations but should conduct a thorough review of the final agreed text to inform active consideration of opting in to the Eurojust regulation post-adoption, in consultation with Parliament. If the Government decide to opt in to the negotiation of the proposed Eurojust regulation, which seeks to replace two existing Council decisions, the legislation currently governing Eurojust will no longer fall within the scope of the Government’s 2014 opt-out decision, under which the Government are seeking to rejoin the current Eurojust arrangements as part of their 2014 opt-out decision.

In the House of Commons debate last week, the Minister referred to government concerns about the proposed connections between Eurojust and the proposed and strongly opposed European Public Prosecutor’s Office. The Minister also expressed government concern about the proposed new Eurojust regulation creating mandatory powers for national members. These powers, said the Minister, would allow a requirement for coercive measures at a national level with the ability to insist that national authorities take investigative measures in some circumstances, which could cut across the division of responsibilities and separation of powers between police and prosecutors in England, Wales and Northern Ireland, and the sole ultimate responsibility of the Lord Advocate in Scotland for determining investigative action in Scotland.

Unusually for this Government in regard to a European Union agency, they publicly rather value Eurojust. Their stance indicates they would prefer to stay in rather than find themselves outside because they do not like the look of the new regulation once it has been adopted following the deliberations of all those member states participating in the negotiations. In this regard it would at least clarify the Government’s position if the Minister could indicate whether, if the European Public Prosecutor’s Office proposal does not proceed, and with it the references to the link up with Eurojust, the Government will still not opt in to the proposed Eurojust regulation unless other significant changes are made to the proposed regulation. In other words, is it the connection with the EPPO proposal that is the showstopper for the Government or are there other aspects of the proposed Eurojust regulation that the Government also regard as a showstopper as far as opting in to the regulation is concerned?

The Government should be able to answer that question in general terms since they are not disclosing their negotiating position on what significant changes would be required as, under their stance in the House of Commons, they do not intend to opt in to negotiations anyway on the proposed Eurojust regulation. What the question does—if the Minister will give a straight answer—is indicate whether the Government’s relative enthusiasm for Eurojust is greater than their dislike of the proposed new regulation as it stands minus any interweave between Eurojust and the EPPO, or whether the Government’s dislike of the proposed new Eurojust regulations minus the interaction with the European Public Prosecutor’s Office is still such that if there is no significant change in the regulation in line with their position, they are prepared to accept no longer being a full participating member of Eurojust.

The view of your Lordships’ European Union Committee is that were it not for the provisions governing Eurojust’s interaction with the EPPO, the argument in favour of the UK opting into the negotiations would be clear and the committee would have no hesitation in recommending that the UK opt in. The committee’s view is that the Government’s key issues with the text could be dealt with during the proposal’s negotiation, but they recognise that the Eurojust proposal has not been brought forward in a vacuum but is closely associated with the Government’s policy towards the EPPO proposal. However, as has already been said, there will be changes in relation to the EPPO proposals since those proposals have been given what I think is known as a yellow card as a result of decisions by a not inconsiderable number of member states’ national Parliaments, which means that the Commission is now required to review its position.

The European Union Committee considers that the non-participation in the EPPO by other member states in addition to the UK, will inevitably mean that the contentious aspects of the proposal dealing with the reform of Eurojust will be subject to negotiations in the Council, and that the United Kingdom ought not to miss out on such negotiations. The committee takes the view that if the UK Government decide not to opt in to this regulation they will not be at the table for the important discussions addressing the position of those states wishing to co-operate within Eurojust but who choose not to participate in the EPPO. The committee says that it could not advocate such a course of action.

Referring to the Government’s position that they value the work of Eurojust, the committee says that it cannot foresee a situation whereby in practical terms the UK would be allowed to remain a full participating member of Eurojust operating under defunct or superseded legislation that they have decided to opt back in to, while the other participating member states co-operate under the new proposal once it is agreed. The European Union Committee has therefore recommended that the UK opt in to the negotiations on the proposed Eurojust regulations. Its report points out that the Director of Public Prosecutions said that the UK’s involvement in Eurojust provides many benefits and in his view represents good value for money, and that the Lord Advocate said that he would be concerned if the UK left Eurojust.

In his letter to the chairman of the European Union Committee, the Minister in the other place said that the Government would take an active part in the negotiations to protect the national interest, and also on the EPPO. The Government, he said, would also continue to challenge the Commission’s evidence base and justification for bringing forward the Eurojust proposals at this time. In addition, the Minister said that the Government would oppose any changes that would reduce the influence of member state representatives over the functioning of Eurojust, and seek confirmation that the opinions of Eurojust acting as a college are non-binding on member states.

Crime and Courts Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Monday 25th March 2013 Lords Chamber

[Baroness Hamwee]

My Lords, I would be surprised if some Members of your Lordships’ House were satisfied with a report as infrequently as annually. The questions, rightly, will come quite often to my noble friend, as they have done over the years. I know that this is something that he holds close to his heart, as does Helen Grant. I note that the document published on Friday—which I, too, thought was shorter than expected—is headed Strategic Objectives for Female Offenders and does not purport to be a complete strategy.

Perhaps I may ask my noble friend one question which follows on from what the noble Baroness has just said. It concerns the effect on children of their mother’s imprisonment. I suppose that this is a plea to include that in the strategy. The developing knowledge about the effect on children of separation from their mothers is something that we should take very seriously, and no doubt we will be considering it in the Children and Families Bill. I hope that my noble friend can reassure the House that the whole-system approach which is referred to in the strategic objectives is a whole system that will extend in all the ways we know it should, and not just to the narrow punitive and personal rehabilitative aspects that we have mostly been talking about this evening.

[Lord Rosser]

My Lords, the Commons amendment seeks to strike out Part 7 of Schedule 15 to the Bill, which provided much-needed statutory provision for women offenders. Part 7 was successfully introduced into the Bill at Third Reading in this House but was subsequently struck out in Committee in the House of Commons without further debate.

The Government have just published their promised Strategic Objectives for Female Offenders setting out their priorities, and they have also announced the setting up of a new advisory board for female offenders chaired by a Home Office Minister which is intended to support the Minister,

“in providing strong leadership on delivery of our strategic priorities”.

However, these developments do not remove the need for statutory measures to ensure that the distinct needs of women in the justice system are prioritised and met. I understand that there have been 10 previous reports across the UK on the matter of women in the justice system, but none, it seems, has been implemented in full. In the light of the publication of their strategy but in the absence of any statutory backing, how will the Government ensure that all contracting areas in the new environment make provision that is appropriate to the particular needs of women, and how will the Government ensure that progress is sustained and built upon?

It is not clear why the Government do not want to take this legislative opportunity to deal more effectively with women who offend. To begin with, funding is not ring-fenced for service provision delivered by women’s centres or women’s services, and a number of them fear significant funding cuts or even closure. The inclusion in the National Offender Management Service’s Commissioning Intentions for 2013-14 of an intention that provision should take into account the “specific needs” of women offenders falls far short of any statutory guarantee of women-specific provision. There is evidence in recent research published by the Equality and Human Rights Commission that commissioning procedures and outcomes have already had a negative impact on the funding of women-only services, including services for women offenders and those at risk of offending. In the Strategic Objectives for Female Offenders the Government recognise that the,

“relatively small number of female offenders presents particular challenges”.

Unless there is statutory underpinning for women’s community provision, there is a risk that this will result in inadequate provision.

Provision for women offenders in the community is probably best described as patchy and its future uncertain. Unless and until the courts are confident that effective community penalties are available in their area then vulnerable women will continue to be sent to custody to serve short sentences for non-violent crimes. I know the figures are well known, but over half the women in prison report having experienced domestic violence and one in three has been sexually abused. Most women serve very short sentences, with 58% sentenced to custody for six months or less; and 81% of women entering custody under sentence had committed a non-violent offence compared with 71% of men. Women also account, as the noble Baroness, Lady Howe, has said, for 31% of all incidents of self-harm, despite representing just 5% of the total prison population.

The recent joint inspection report on the use of alternatives to custody for women offenders found a lack of women-specific provision for both unpaid work and offending behaviour programmes and noted that,

“women-only groups, where run, were often successful”.

It found that,

“women’s community centres could play an important role in securing a woman’s engagement in work to address her offending and promote compliance with her order or licence”.

At the moment, it looks as though government funding for the national network of women’s centres will be substantially reduced and that, for some, it may run out very soon. The future of the centres under payment- by-results commissioning is uncertain. Placing community provision for female offenders on a statutory footing will at least help to protect the vital role played by women’s centres and other local services in the effective delivery of community provision for women.

If the Government are not prepared to legislate now on this issue, do they have plans to do so at some stage in the future? It is not proposed changes in the provision of probation services or a changed landscape that is preventing the Government making statutory provision. That, frankly, is a red herring: a Government wanting to legislate would not be deterred by that issue. If the Government have no intention at all to legislate, then at least will a Statement be made each year to Parliament, as the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, asked, on the progress being made towards improved provision for female offenders? That, surely, is the least the Minister can offer when he stands up to give his response.

Crime and Courts Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Tuesday 27th November 2012 Lords Chamber

[Lord Rosser]

My Lords, this amendment would require pre-appointment scrutiny of the director-general by the appropriate parliamentary Select Committee, presumably the Home Affairs Committee.

As we understand it, the Government consider pre-appointment hearings to be best practice for major public appointments. The coalition agreement contains a specific commitment to,

“strengthen the powers of Select Committees to scrutinise major public appointments”,

as part of improving government transparency. Yet the Government have not considered this approach relevant for the office of director-general of the National Crime Agency, a role that is to be much more powerful than the chief executive of the Serious Organised Crime Agency, with the NCA’s increased responsibilities and the absence of any governance structure, as we have just debated.

In Committee, the Government said:

“We accept that there is a place for departmental Select Committees to undertake pre-appointment hearings for certain key public appointments but we do not believe that this is one of them”.—[Official Report, 18/6/12; col. 1597.]

The Government argued that pre-appointment scrutiny by the relevant Select Committee was not justified because the Home Secretary was accountable for public protection and the progress made by the National Crime Agency. Yet the occupant of the post of director-general of the NCA will have considerable powers and, in effect, will be the head of the one national crime-fighting agency in the country dealing with serious, high-profile and organised crimes. In addition, the Government are also considering giving the NCA and its director-general responsibilities for counter- terrorism. The occupant of the post of director-general will also have the power to direct chief officers of other police forces throughout England and Wales to carry out specific tasks.

Under Schedule 1, a person need not be an NCA officer before appointment as the director-general. The only requirement is that a,

“person may not be appointed as Director General unless the Secretary of State is satisfied that the person … is capable of effectively exercising operational powers and … is a suitable person to exercise operational powers”.

That is a somewhat subjective judgment, with nothing specific about proven skills or experience. The reputation and credibility of the NCA is going to be determined to a significant degree by the effectiveness and ability of the director-general, who will have responsibilities directly affecting the safety and security of the people of this country and will have operational independence but without the support or protection of a board, unlike the Serious Organised Crime Agency, between the director-general and the Secretary of State to help to ensure that that is the case.

This post is a new one with responsibility for potentially very sensitive issues, including what could be sensitive issues with political implications. The occupant will need to be strong enough to ensure that operational independence from government is a reality and to withstand any pressures to have too cosy a relationship with his or her political masters. To leave the matter solely in the hands of the Secretary of State without any other parliamentary approval being required would not seem the appropriate step in relation to this post, bearing in mind the nature and responsibilities of it. This must surely be one position for which there is a strong case for pre-appointment scrutiny by the relevant parliamentary Select Committee. I beg to move.

[Baroness Hamwee]

My Lords, I have a difficulty with this amendment because it seems to seek not pre-appointment scrutiny, as the noble Lord has described it, but appointment veto. Pre-appointment scrutiny, questioning a proposed candidate but then leaving it to the appointer to take the final decision in the light of that scrutiny is something which, as the House will know, I have advocated in other contexts. For very senior and important positions I think that that is very desirable. However, I do not go so far as wanting to see Select Committees approving appointments such as this. Although the noble Lord’s speech was very persuasive, what he is seeking the House to agree to is something even more than he was arguing for.

[Lord Taylor of Holbeach]

My Lords, I agree with my noble friend that this amendment seeks to make the appointment of the director-general of the NCA subject to the approval of the Home Affairs Select Committee. This is a step up from the amendment tabled by noble Lords in Committee, which provided only for consultation with that committee.

As my noble friend Lord Henley outlined during the Committee stage, the Home Secretary is ultimately accountable for public protection. She will account to Parliament for the progress made by the National Crime Agency. It is right, therefore, that she is responsible for appointing the director-general. Of course, there is a place for departmental Select Committees to approve certain key public appointments, but we do not believe that this is one of them.

In the Government’s June 2012 response to the House of Commons Liaison Committee’s report on public appointments, we indicated that,

“there are some posts where it is appropriate for Parliament to exercise a formal control over appointments”.

However, the response went on to say:

“This is exceptional and where the remit is associated with the functions of Parliament”.

That is not the case with this appointment, as it was not the case with the appointment of the director-general of the Serious Organised Crime Agency. The Home Affairs Select Committee will, of course, have a role in scrutinising the work of the National Crime Agency, in the same way as it has scrutinised the work of SOCA, and I believe it is in this capacity that it can best contribute. Indeed, Keith Bristow gave evidence to the committee as recently as 16 October, and I expect that he will be frequently before that committee to be challenged on how the NCA is performing.

The Government do not agree to Select Committees having an effective veto on a wider range of appointments and for that reason I ask the noble Lord to withdraw his amendment.

--- Later in debate ---

[Baroness Hamwee]

Clause 4, which has the heading “Operations”, tells us that the director-general must have regard to strategic priorities, the annual plan and the framework document—all matters to which your Lordships have referred—and that before the beginning of each financial year the director-general must issue an annual plan setting out how he intends the functions to be exercised during the year. The importance of clarity about strategic priorities and other matters has been raised very clearly at every stage of the Bill by all sides, including by Ministers. The annual plan—a prospective document, if I can put it in that way—will tell us what is planned for the following financial year.

My amendment—it is a small amendment, following a matter which I raised at the previous stage—is intended to ask the Minister to give the House an assurance about how strategic priorities which have changed during the year will be taken into account. The amendment simply proposes that if the Secretary of State determines any variation in the strategic priorities, she will lay a report before Parliament setting out the variation. I beg to move.

[Lord Rosser]

My Lords, we have two amendments in this group. They would remove the requirement for the director-general to seek the consent of the Secretary of State and others to the annual plan, as currently provided for in the Bill. Instead, the requirement would be on the director-general to consult so far as concerns the Secretary of State and others. Although we obviously agree that the Secretary of State should retain ultimate strategic oversight of the National Crime Agency and determine the strategic priorities, it is vital to preserve the National Crime Agency’s operational independence from the Government. We understood that that is the Government’s intention, too.

Yet while the director-general is to set the annual plan for the operation of the National Crime Agency’s functions in pursuit of the laid-down strategic priorities, he or she will still be obliged to seek the consent of the Home Secretary before publication of this operational document. Such consent is not currently required, for example, by the Serious Organised Crime Agency. The director-general will be under a statutory obligation to ensure that the annual plan meets the strategic priorities determined by the Secretary of State. Bearing that in mind, why is it necessary for the director-general also to have the consent of the Home Secretary for what is surely an operational document?

That leaves the way open for interference by a Secretary of State in operational matters if their consent has to be obtained before publication of that annual plan, which sets out how the director-general intends to deliver the laid-down strategic priorities. I am speaking to my amendments on the basis of those points. I hope that the Minister will be able to address the specific points that I have made and explain why it is felt necessary that the Secretary of State should have to consent to the annual plan rather than be consulted on it by the director-general.

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[Baroness Hamwee]

My Lords, when one hears the Lord Chairman remind the House of the point of pre-emption, one feels one should start the speech with, “I wish”.

This group of amendments deals with payments between the NCA and police forces in the event of tasking, and Amendment 28 is about how the payment is determined. Paragraph 29(1) provides that if the parties cannot agree on the amount to be paid then it is a matter for the Secretary of State to determine. I had a similar amendment at the last stage, and the noble Earl, responding for the Government, explained that determination was not on a case-by-case basis but referred to overall principle. I still have some difficulty in reading the paragraph that way, because it refers to the “amount”. If it referred to the absence of agreement as to the formula or the calculation, I would understand it.

The outline of the framework document deals with the question of tasking. The basis for the determination should be in the framework document. That is what my amendment would provide. Fees and charges are mentioned, but those seem to be a different issue. At the moment, and of course continuing, we will have a position where there is mutual aid between police forces. As I understand it, payment for mutual aid is a matter that is in the public domain—I believe that ACPO deals with it. There should be a similar approach, and the schedule should not allow for case-by-case determination, even if that is not what is envisaged, because as it is drafted it would be allowed for. I beg to move.

[Lord Rosser]

My Lords, we have two amendments in this group, and I suspect that the purpose of our amendments is not dissimilar to the intention behind the amendment moved by the noble Baroness, Lady Hamwee.

The Bill appears to provide for the Secretary of State to act as final arbiter over disputes arising between, for example, the National Crime Agency and police forces over compensation for resources provided under voluntary or directed assistance. It is not appropriate for the Secretary of State to have such a role, because it could introduce a potential conflict of interest. The Secretary of State is responsible for the National Crime Agency budget, but police force budgets will be under the control of the police and crime commissioner, so one could argue that the Secretary of State has an interest in the outcome of a decision over who should be paying what in any compensation that is required.

Our amendments provide for an independent advisory panel, rather than the Secretary of State, to arbitrate payments, which is not going down quite the same road as the amendment that has been moved by the noble Baroness, Lady Hamwee. Certainly, the objective behind our amendment—perhaps the Minister will have an alternative solution—is to say that the Secretary of State, having responsibility for the National Crime Agency budget, could be deemed to be an interested party. Therefore, the Secretary of State should not act as final arbiter over disputes, but some other means should be used to make that decision. Some other body, organisation, procedure or process should be used to resolve disputes that arise, rather than it being in the hands of the Secretary of State, for the reasons that I have mentioned.

Crime and Courts Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Tuesday 13th November 2012 Lords Chamber

[Lord Rosser]

My Lords, the purpose of the amendment is to enable the Government to say rather more about their intentions for the future of the probation service, given that an effective and properly resourced probation service will be crucial to delivering the Government’s intentions on community sentencing, which we are discussing, and the decisions of the courts. The Minister also referred to the probation service in our debate on community sentencing on 30 October. The amendment states that any plans to reorganise the probation service must be instituted by regulations, and that those regulations shall be subject to the affirmative resolution procedure of both Houses.

We know that the Minister is a great admirer of the probation service. He told us on 30 October that:

“I am a lifelong admirer of the probation service and am in awe of the responsibilities that our probation officers take on. I cannot imagine that any future structure would not draw on the experience and ethos that makes it such an excellent service”.—[Official Report, 30/10/12; col. 549.]

On the face of it, that could be taken to mean that the probation service as we know it today has a long-term future, particularly if it is the Government’s intention to raise the profile, importance and extent of rehabilitation as the means of reducing reoffending. On the other hand, the noble Lord’s words could mean very little.

He said that he could not imagine that any future structure would not draw on the experience and ethos that make it such an excellent service. What exactly did the Minister mean when he said that? One interpretation could be that the Government are nevertheless still looking to hand over to outside contractors large parts of the work currently undertaken by the probation service, and that the experience and ethos to which the Minister referred would be drawn upon because he would expect significant numbers of existing probation staff to be transferred over to those contractors. Is that an interpretation of the Minister’s comments that he would either accept as accurate or not be prepared to exclude?

He said that he was,

“in awe of the responsibilities that our probation officers take on”.

Yet, as I understand it, the Government have indicated that 60% of probation work will be put out to competitive tender. What then were the responsibilities that the Minister had in mind when he said that, and how many of those responsibilities is it the Government’s intention that the probation service should continue to undertake? Is it all of them, as presumably it should be, bearing in mind that the noble Lord is “in awe” and regards the probation service as an excellent service, and that its work will continue to be undertaken by probation officers in the years ahead?

Are the Government looking to reorganise the probation service and, if so, with what objective in mind, and in what way? If the probation service is already excellent, as the Minister told us last month, what improvements in the service do the Government believe can be achieved without potentially putting at risk the quality of the excellent service currently being provided?

We definitely do not want to see any attempt to reduce significantly or change the role of the probation service without Parliament being fully aware of what is going on, without the opportunity for a full debate—with Ministers having to justify their proposals to Parliament—and without Parliament having to agree to those changes. The new Secretary of State seems to believe implicitly in the private sector’s ability to do just about everything better than the public sector, and he is likely to try and outsource as much as he can work that is currently undertaken by the probation service. If that is not the case, the Minister has only to stand up and give a cast-iron guarantee that the probation service will continue to undertake its current activities within the public sector.

The Minister could also say how many staff are in the probation service at the present time and how many the Government envisage there will be in the future, taking account of their proposals in the Bill on community sentencing and their declared intentions on restorative justice and on the role of rehabilitation in reducing reoffending. We will listen to the Minister’s response and the words that he chooses to use—and the ones that he chooses not to use—with interest. I hope that his response will be consistent with the effusive words he used about the probation service in his response to our debate on 30 October. I beg to move.

[Baroness Hamwee]

My Lords, my noble friend Lady Linklater has already put on record today, for the umpteenth time in this Chamber, our admiration for the work done by the probation service. I hope that is a fair summary. I will not take up the Committee’s time by repeating that or picking up the points of acclamation made by the noble Lord. I simply want to ask him a question. His amendment would insert a provision for the affirmative resolution procedure in the 2007 Act. The significance of the date of that will not be lost on the Committee. In other words, that legislation existed before the last general election. I was hoping to understand, from his introduction of this amendment, why, as that legislation allowed for plans to reorganise the probation service—I understand that must be so from his own amendment—there was no provision included at the time for the affirmative resolution procedure. I make it clear that my question is for the noble Lord, Lord Rosser.

--- Later in debate ---

[Lord McNally]

For the record, we are considering how to give effect to those parts of the Offender Management Act 2007 that open up provision of the probation service to a wider range of providers. In doing that, we will, of course, take a sensible and measured approach to any proposals introducing competition for offender management. Protection of the public will continue to be our top priority as we design our reforms.

[Baroness Hamwee]

My Lords, I would not say that the noble Lord was interrupted but an explanation has been given by the Minister. I did not expect the Minister to answer my question because it was not a question for him. It was a question about why the previous Government provided for the sort of reorganisation to which the noble Lord, Lord Rosser, referred, but did not provide for the affirmative resolution procedure. I am sure he would have said, as I have, that one needs to ensure that all legislation is proof against succeeding and different governments. The noble Lord was not part of it so perhaps I am teasing him unnecessarily.

[Lord Rosser]

It was not our intention to do to the probation service what one suspects that this Government are contemplating doing to the probation service. Certainly, nothing that the Minister has just said will have allayed any fears or concerns about the Government’s future intentions for the probation service. We tabled an amendment to ensure that the matter is fully discussed and debated in both Houses and to point out that it requires an affirmative resolution procedure.

I am not surprised that the Minister has declined to answer any of the points that I have put forward in asking him about the Government’s intentions. He has effectively remained silent, which must add considerably to the worries and suspicion about what is intended, particularly since the consultation ended a while ago. However, I realise that I cannot force the Minister to say anything in response to questions that I ask. Therefore, I have no alternative but to beg leave to withdraw the amendment.

Justice and Security Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Monday 9th July 2012 Lords Chamber

[Baroness Hamwee]

My Lords, the Minister should not blame the post; it came to me by e-mail this morning. The post may follow in about three days. I want to put on the record what the note told me and other noble Lords who have seen it about the memorandum of understanding. It states:

“The MoU needs to be agreed between the ISC and the Prime Minister”.

We know that. It continues:

“We are starting this process of drafting and agreeing this document, and will do so in parallel”—

I stress those words—

“with the Bill’s passage ... Once we have an agreed draft … it is our intention that it is published, to help inform debate”.

The thrust of my amendment is that it should be subject to debate. The Ministers who sent the letter then told us:

“The matters covered … may include … The factors to be taken into account in deciding whether a particular operational matter which the ISC might wish to consider is ongoing and/or of significant national interest … A description of the arrangements by which the ISC will request, be provided with and hold information, including the circumstances in which the ISC will be able to access primary source materials … A description of the role of investigative staff in the ISC’s work; and … A description of the process for producing an ISC report”.

As the noble Lord said, the memorandum of understanding will be a public document, so it cannot be so sensitive that that is a reason for it not to be debated. I say to the Committee that today’s debates have shown how much Parliament—and this House in particular—has to contribute to consideration of the criteria that will be applied. We are told in Clause 2(4)(a) that the memorandum of understanding,

“may include other provision … which is not of the kind envisaged in subsection (2) or (3)”.

That is very wide. I realise that “envisaged” is another term that I have not come across in legislation before. I do not know whether it means more than “not within”, “not as described” or “not subject to” subsections (2) and (3). I am beginning to feel like an awful old fogey in raising these points but legislation should be completely clear. I believe that the criteria should be matters for debate and not simply for the draft, although we look forward to it as it will inform debate. Reading this note, it seems to me that the approach is more top-down than I should like to have seen.

[Lord Rosser]

My Lords, perhaps I may make one brief comment. I have already expressed our views about the memorandum of understanding and I think that in return I was told by the noble Lord, Lord King of Bridgwater, that I was being savage.

I just wish to pursue the point that the noble Baroness, Lady Hamwee, made about other references in Clause 2 to the kind of content that will be included in the memorandum of understanding, which we will not get an opportunity to debate and which does not have to be approved by Parliament. Clause 2(3) says:

“The ISC may, by virtue of subsection (1) or (2), consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest, and … the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.

One has to bear in mind that this is not a document that we will be able to debate and discuss and it will not need to be approved by Parliament unless the Minister is going to move on this amendment. What are these principles that will be set out in the memorandum of understanding which we are not going to be told about when discussing the Bill and which we are not going to be allowed to discuss?

Crime and Courts Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Monday 25th June 2012 Lords Chamber

[Lord Rosser]

My Lords, the amendment would ensure that persons representing the views of police and crime commissioners are included in the definition of “strategic partners” set out in Part 1. The definition refers to,

“such persons as appear to the Secretary of State to represent the views of local policing bodies”.

Earlier in Part 1, a “policing body” is defined as including within its scope a police and crime commissioner. Perhaps the Minister will tell us whether the reference to “local policing bodies” in the definition of “strategic partners” also means local police and crime commissioners, or whether it means something different from the earlier definition of “policing body”—and if so, why.

It is important that police and crime commissioners are included as strategic partners. Under Clause 3, the Secretary of State is required in determining strategic priorities for the National Crime Agency to consult strategic partners. Bearing in mind that a police and crime commissioner will be responsible for issuing a police and crime plan and in so doing will have to have regard to the strategic policing requirement issued by the Secretary of State, it would seem odd if the Secretary of State were not required when determining his or her strategic priorities for the National Crime Agency to consult with persons representing the views of police and crime commissioners. Likewise, in preparing his or her annual plan, the director-general of the National Crime Agency must, under Clause 4 in Part 1, consult with the strategic partners. It would seem inappropriate if these partners did not include police and crime commissioners, bearing in mind that the annual plan sets out how the director-general intends that the National Crime Agency functions should be exercised. This could well have an impact on the functioning of local police forces, including whether that force is efficient and effective, which it is a statutory responsibility of a police and crime commissioner to secure.

We also learnt from the Minister last week in Committee that the unelected director-general of the National Crime Agency could direct a chief officer of an England and Wales police force to perform a task of unlimited magnitude, impact and scope specified in such a direction without having to obtain the consent of the Secretary of State or even having to consult the elected police and crime commissioner responsible for the force whose chief officer the director-general is ordering to take that particular course of action. That might be, for example, as the Minister told us,

“to take the lead to disrupt a human-trafficking gang that is predominantly based in that force area”.—[Official Report, 20/6/12; col. 1800.]

Potentially, that is hardly a minor task in terms of either time or resources.

On top of that, we were also told by the Minister that the unelected director-general of the National Crime Agency could direct a chief officer of an England and Wales police force to provide unlimited specified assistance to the National Crime Agency, also without having even to consult the elected police and crime commissioner responsible for that force—even though, as the Minister said, providing assistance involved transferring resources from the command of one force to another force or organisation.

To many people, that will seem an odd state of affairs, designed to marginalise the elected police and crime commissioner. If elected police and crime commissioners, now that we are going to have them, are not even one of the strategic partners to be consulted by the Secretary of State when determining strategic priorities for the National Crime Agency, or by the agency’s director-general when preparing the annual plan, then it would be further confirmation that police and crime commissioners are intended, in many ways, to be little more than figureheads—a situation and role that any self-respecting elected police and crime commissioner will, I am sure, be unwilling to accept. I move this amendment and await the Minister’s response.

[Baroness Hamwee]

My Lords, I have Amendment 68 in this group, and it is another amendment to the definition of “strategic partners”. The relevance of strategic partners is their role as consultees of the Secretary of State when she determines the strategic priorities for the NCA. We are all familiar with the scope and importance of the NCA’s functions. My amendment would add to the list of strategic partners the Security Service, the Secret Intelligence Service and GCHQ. There was a time when a fiction was maintained about the existence or otherwise of at least one of these organisations but I think that we have moved beyond that. It seems to me unthinkable that the Secretary of State, given the subject matter of consultation on strategic priorities, would not consult those agencies.

Last week, on Second Reading of the Justice and Security Bill, I commented on how the priorities and concerns of the Office for Security and Counter-Terrorism, which is embedded in the Home Office, seem to have affected—I am not making a judgment on this—all the Home Office’s thinking. As I say, I simply cannot believe that these services and agencies would be omitted in such a consultation. If it is not the case, then why not say so? If it is, then why is it?

Crime and Courts Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Monday 18th June 2012 Lords Chamber

[Baroness Hamwee]

I wish to speak also to Amendment 3. These are both probing amendments.

Amendment 2 seeks to remove Clause 1(10) from the Bill. That subsection excludes prosecution from the NCA’s crime reduction function. Is the point simply what the NCA itself can do? If so, why cannot it prosecute on its own behalf? The crime reduction function is defined and includes activities to combat crime listed in Clause 1(11), which refers to prosecution. If the NCA cannot itself prosecute, how is it anticipated that the process will work? Common sense tells me how it will work but I would like to hear that from the Minister. Why cannot the NCA have the option of prosecuting instead of commissioning prosecution, as it were?

Amendment 3 seeks to understand what is intended by the activity of mitigating the consequences of crime. Of course, that is not something to which I am in any way opposed, but can the Minister expand on that? Is it expected that the NCA will work in partnership with the many organisations which deal with mitigating the consequences of crime such as the Restorative Justice Council and Victim Support? I was pleased but a little surprised to see that referred to and would be glad to have some flesh put on those bones. I beg to move.

[Lord Rosser]

My Lords, as the noble Baroness, Lady Hamwee, has explained, she is, as I understand it, seeking an explanation of why the National Crime Agency is precluded from pursuing its own cases. Presumably, the National Crime Agency would pursue only more serious and organised offences although there is provision in the Bill for NCA officers to become involved in dealing with any crime, so perhaps that is not necessarily the case. Subject to the Minister putting me right, I assume the Government consider that the Crown Prosecution Service would become involved in pursuing most cases. If I am right in thinking that, one advantage is that the Crown Prosecution Service is able to take an independent look at the evidence available to support a charge, and make a decision on whether there is sufficient evidence to put before a jury with a reasonable prospect of success, whether it is in the public interest to proceed and whether the charges being brought are the appropriate ones in the light of the evidence.

One can argue that where an agency or body which is the one that has investigated the case and produced and collated the evidence is also the one that makes the decision on whether the evidence is sufficiently strong to make the charge stand up, there is a possibility that that agency or body may be too close to the case and too involved to make the necessary judgments in an entirely objective manner. We will listen to the Minister’s response to the amendment moved by the noble Baroness, Lady Hamwee, and to the explanations that she is seeking. My only further comment is that independent agencies do not always seem to have a high reputation when it comes to pursuing cases successfully. Some might raise the Serious Fraud Office in that context.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I can be extremely brief on this. Paragraph 13 of Schedule 1 provides for secondment to the NCA. My amendment would allow for secondments both ways. I felt that it was an issue worth raising because I think that secondment can often be extremely helpful to both organisations involved. It may be that the Minister will tell me that it is not necessary to provide for NCA officers to be seconded to a UK police force because that would be covered by some other existing police legislation. If it is covered, that is well and good; if it is not, why not? I beg to move.

[Lord Rosser]

My Lords, as the noble Baroness, Lady Hamwee, said, this amendment makes provision for National Crime Agency officers to be seconded to a UK police force, as well as for persons to be seconded to serve as National Crime Agency officers. I would like to raise two points on this paragraph in Schedule 1. It refers to “persons” being seconded to the National Crime Agency to serve as National Crime Agency officers. There is no qualification before the word “persons”. Could it literally be anybody and still be within the terms of the statutory provisions of the Bill? I ask that because paragraph 7(2) of Schedule 1 says:

“A person may not be appointed as Director General unless the Secretary of State is satisfied that the person—

(a) is capable of effectively exercising operational powers; and

(b) is a suitable person to exercise operational powers”.

In other words, if the Secretary of State makes an appointment that stretches credibility, and the Secretary of State could have satisfied himself or herself on the points referred to, presumably the appointment could be challenged under the provisions of the Bill. There is, however, no apparent requirement on the part of the director-general to satisfy himself or herself on any point in relation to “persons” seconded under the Bill as it stands, or indeed to National Crime Agency officers seconded under the terms of the amendment, although one could take the view that if they were existing National Crime Agency officers there ought not to be a problem.

Can the Minister say why there is no requirement in the sub-paragraph that we are discussing for the director-general to have to satisfy himself or herself that any person seconded to the National Crime Agency has to be, for example, appropriately qualified, bearing in mind that the Bill lays down requirements on the Secretary of State over the appointment of the director-general?

Finally, can the Minister say what the definition is of a National Crime Agency officer? Is it anyone employed by or working for the National Crime Agency, or does it refer only to certain kinds of posts or activities being undertaken within the National Crime Agency?

Crime and Courts Bill [HL]

Debate between Lord Rosser and Baroness Hamwee

Monday 18th June 2012 Lords Chamber

[Baroness Hamwee]

I wonder whether we have fallen into the trap of seeing this matter through the lens of parliamentary procedures. However, there is another way of looking at it—namely, looking at how the NCA actually operates. If we are undertaking legislation setting up a new agency, which is not designed from the start to deal with counterterrorism—we must assume that that is the case, and I do not expect the Minister to respond to this as I am putting it rather rhetorically—should we not let it be formed, see how it operates and consider the addition of a very serious function when we know something more about how it is functioning? As I say, we are inevitably looking at this in terms of the way we operate, but we have left out that rather serious consideration.

[Lord Rosser]

My Lords, I thank all noble Lords who have taken part in this debate and thank the Minister for his response. It is clear that the Government are seriously thinking about making this change although I accept that the Minister has said that no final decision has been made. However, it is clear that the Government are seriously contemplating this change; otherwise, they would not have included this clause in the Bill. If the Government have reached the stage of seriously contemplating the change, although I accept that no final decision has been made, as I said, the odds are probably on the Government making that change; otherwise, they would not have gone so far as to put this clause in the Bill.

However, as I said, this is not just about adding to functions, which is how the Delegated Powers and Regulatory Reform Committee looked at this matter; it is also about taking those functions away from a body that has had them for some time and has expertise in that field. The Government may be able to make out a strong case for doing so, and I would not want my comments to be taken as meaning that I have decided that they cannot make out a strong case for making the change. Perhaps they can; we will have to wait and see. However, the issue concerns what is the appropriate way in which the matter should be dealt with. Should it be dealt with on the basis of a super-affirmative order, which restricts the amount of debate and discussion which takes place, or should it be dealt with on the basis of primary legislation? If no final decision has been made—and I accept what the Minister says—then clearly this matter could be left and be dealt with in further primary legislation once a decision is made to change the present arrangements.

The Minister addressed that point in part. I may have written down incorrectly what he said and, if I have, I apologise. I wrote that he said that primary legislation is a lengthy process and quite difficult. However, in a parliamentary democracy that does not seem to be a very good argument for not making a change of this magnitude through primary legislation. Saying that primary legislation is a lengthy process and quite difficult sounds like a plea that all Governments of whatever colour have probably made over the years. However, as I said, that is not an argument for dealing in this way with an issue of this magnitude and importance.

The Minister referred to Clause 2(4), which states:

“An order under this section may amend or otherwise modify this Act or any other enactment”.

I had not assumed that it extended beyond counterterrorism but, even though it relates purely to counterterrorism, the fact that:

“An order under this section may amend or otherwise modify this Act or any other enactment”,

is still a fairly extensive power.

I sincerely hope that the Government, through the Minister, will rethink this issue, although at the moment the Government clearly take the view that the super-affirmative procedure is appropriate. At this stage, I conclude my comments by again referring to the Constitution Committee, which said:

“The fact remains that the ordinary legislative processes of amendment and debate, and with it much of the substance of the role of the House of Lords as a revising chamber, would be circumvented. Clause 2 raises the fundamental constitutional issue of the proper relationship between parliamentary and executive lawmaking”.

I hope that the Minister and the Government will reflect on that. In the mean time, I do not intend to pursue my opposition to Clause 2 standing part of the Bill.

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[Baroness Hamwee]

I have also tabled Amendment 65 in this group, which is essentially consequential on Amendment 26. Amendment 26 would make the NCA subject to the Freedom of Information Act. I know that this is a matter that Ministers have considered very carefully, and they have taken the view that so much information would be exempt under the Act that it is more straightforward not to bring the NCA within the scope of the Act.

I do not intend to say a great deal at this stage, because it is really for the Minister to justify the exclusion of the NCA rather than for me to justify its inclusion. I appreciate that there are important provisions in the Bill requiring the director-general to publish information and material, including the annual report and the Secretary of State’s laying of the annual report before Parliament, but we will not know what the director-general and the Secretary of State have chosen to omit. If one makes a freedom of information request, the very fact of the recipient relying on an exemption sometimes gives some sort of clue, and the override regime provides for the application for a decision by the Information Commissioner and an appeal to the tribunal.

However many reports the director-general and the Secretary of State are required to publish, the public can only react to them. They cannot ask questions. Members of Parliament can ask questions and instigate debate, but in some cases that may be unnecessarily cumbersome and a bit less incisive. The freedom of information regime gives a proactive tool to the citizen. I remain to be convinced—I look forward to being convinced—that it is appropriate that that tool should not be available to the citizen in the case of the National Crime Agency. I beg to move.

[Lord Rosser]

Our Amendment 66 qualifies the National Crime Agency exemption to cover only those functions subject to exemption prior to 1 April 2012, which I believe was the date on which the NPIA functions were transferred to SOCA. Schedule 8 provides that the NCA will be exempt from freedom of information legislation. However, the functions of the NPIA and the UK Border Agency, which the Bill proposes to be covered by the NCA, were not previously exempt from the Freedom of Information Act. As yet, we have had no real explanation or justification for that exemption, especially as an extensive exemption regime already exists under the Freedom of Information Act.

SOCA, of course, is exempt from the operation of the Freedom of Information Act, but, as I said, as the National Crime Agency’s functions extend beyond those undertaken by SOCA, so the extended exemption provided for in the Bill is significant and needs justification. Police, immigration services and customs are not exempt and the National Crime Agency will effectively be covering the work of these agencies, so there must be an argument for not exempting from the operation of the Freedom of Information Act additional functions taken on by the NCA from the NPIA and the UKBA that were not previously exempt from the Act.

Protection of Freedoms Bill

Debate between Lord Rosser and Baroness Hamwee

Thursday 12th January 2012 Grand Committee

[Baroness Hamwee]

My Lords, I support the thrust of the two amendments, or either of them. As the noble Lord, Lord Wills, has said, it is important to give the official who is tasked with applying the legislation the tools to do the job properly. After all, he and his office are in the best position to analyse where the obstacles are. This is a clear problem and he has been clear about the need for a solution. I hope we use this opportunity—I do not like the jargon—to add to the toolbox.

[Lord Rosser]

I support the amendments. I certainly do not intend to explain the purpose of them because my noble friend has already done that. The key point is that it is the view of the Information Commissioner, based on his or her experience, that there should be the opportunity, if necessary, to have cases heard at the Crown Court. Obviously, this relates to the severity of the fine that can be imposed because there is a restriction if a case is dealt with in the magistrates’ court. The issue of the timescale within which proceedings have to be initiated has also been raised.

I hope the Government will be able to give a sympathetic response, not least because the amendments are based on views that were expressed, I think in evidence to the Justice Select Committee on 13 September last year, by the Information Commissioner and the changes that that individual felt were necessary in the light of experience.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Rosser and Baroness Hamwee

Tuesday 15th November 2011 Lords Chamber

[Baroness Hamwee]

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, expressed a certain weariness when he spoke on this issue in Committee. I do not think that he used the words “ritualistic” or “formulaic” but that may have been what he had in mind when he referred to the way some of the control order debates seemed to be going. I share that concern, but it leads me to say that we should make sure that renewal of this provision is not ritualistic or formulaic. We should take care to avoid that. However, it is not an argument for saying that we should not undertake that renewal.

We will, I am sure, be told by the Minister that we can debate the issue at any time that any of us succeeds in putting down a debate, and that the Government could repeal TPIMs at any time. Neither of those claims is an answer to the points that have been made. I urge the Government, if they lose the Division that is about to come, to turn it into a virtue and explain annually why it is that any renewal is required. The term “trust” was used quite a lot at an earlier stage in this Bill. Trust does need to be renewed, as well as everything else, to take both your Lordships’ and the country with them. The Government should regard this as an opportunity, not something that should be pictured in any way as a defeat.

[Lord Rosser]

My Lords, I will be brief. Our own Joint Committee on Human Rights said that the TPIMs remain,

“an extraordinary departure from ordinary principles of criminal due process”.

It went on to recommend that the Bill should also,

“require annual renewal, and so ensure there is an annual opportunity for Parliament to scrutinise and debate the continued necessity for such exceptional measures and the way in which they are working in practice”.

Your Lordships’ Constitution Committee, as the noble Lord, Lord Pannick, said, also questioned whether it was constitutionally appropriate for the extraordinary executive powers involved in TPIMs to remain in being for a lengthy period of time. Whatever one’s views on the need for TPIMs, these are considerable and exceptional measures, and it is surely right and appropriate that Parliament should—as happens currently with control orders—continue to have the opportunity and the duty to decide each year whether the situation remains such that the measures in this Bill and the associated powers should continue in being or instead be allowed to expire.

The fact that debates on the Bill are taking place now does not affect the necessity and appropriateness of proper consideration each year by Parliament of whether the circumstances remain such that these powers, and the way in which they are used and operated, are still needed for a further period of time. It remains to be seen whether the Minister’s position has changed on this issue, but if the noble Lord, Lord Pannick, decides in the light of the Minister’s reply to test the opinion of the House, we should support his amendment.

Police Reform and Social Responsibility Bill

Debate between Lord Rosser and Baroness Hamwee

Thursday 14th July 2011 Lords Chamber

[Baroness Hamwee]

My Lords, I have Amendment 306ZZA in this group. On the issue of the division of the levy between the police and the local authority, at the previous stage I attempted to reverse the proportions, as provided by the Bill. This time I am suggesting a 50-50 split. I am sure that my noble friend will understand how completely reasonable that must be.

At that stage, my noble friend told me as reassurance that the levy had,

“been designed to raise money for the police, who bear the brunt of late night enforcement costs”.—[Official Report, 16/6/11; col. 943.]

I do not doubt the costs borne by the police, but to some extent they are already taken into account in the way that their funding operates. I am concerned that the costs to local authorities, particularly as regards environmental health and some of the organisation involved in dealing with late-night activity, are not acknowledged.

I have brought this back not only to change the proportion but because of a thought that occurred to me after the previous stage. If an authority is to receive little financial benefit from the levy, it may take a decision not to impose it at all. I wonder whether the Government have considered that risk, if I may put it that way.

[Lord Rosser]

I will be brief. The noble Lord, Lord Clement-Jones, referred to what my noble friend Lord Stevenson of Balmacara said in Committee in respect of the amendments that the noble Lord has moved, in particular the support that we on these Benches gave for a more targeted application of the late-night levy. That continues to be our position.

Police Reform and Social Responsibility Bill

Debate between Lord Rosser and Baroness Hamwee

Thursday 14th July 2011 Lords Chamber

[Lord Rosser]

The Bill represents a major change for policing in England and Wales. Concerns have been expressed about the lack of effective checks and balances on commissioners and their unchallenged powers. Concerns have been expressed about the impact of the strategic policing requirements and the proposed national crime agency on the new arrangements. Concerns have been expressed about the impact of the relationship between the PCCs and chief constables on the latter’s operational responsibility. Concerns have been expressed about the impact of the new policing structure on relationships and working arrangements with other bodies, including local authorities. Concerns have also been expressed about the impact of the proposed new arrangements on levels of crime and the impact of the politicisation of the police, which, frankly, this Bill introduces.

The Government agree that their proposals represent a major change. Amendment 311 calls for an independent review of the policing governance arrangements and for a report to be prepared, laid before Parliament and approved by Parliament. The report must set out the objectives intended to be achieved by the new policing governance arrangements, the extent to which those objectives have been achieved, and whether they remain.

It does not seem unreasonable to call in the amendment for an assessment to be made of the impact of the new governance arrangements, what their objectives are and whether they are being achieved within the period of four years provided for in it if the provisions of the Bill are to remain in force. I hope that the Government will agree to the amendment and its provisions for an independent review of what they themselves accept is a major change for policing in England and Wales.

[Baroness Hamwee]

My Lords, I do not agree with the amendment, for the following reasons. Noble Lords will be well aware of my concerns about the Bill, so I say this with a certain force. This legislation seems no different from other legislation that is contentious. It will be on the statute book in some form or other and able to be reviewed, renewed or repealed by a later Government—indeed, by the same Government, who may have second thoughts about it. I hope that it will be reviewed, but as part of a programme of post-legislative scrutiny, which it is high time Parliament had in place. Even without that post-legislative scrutiny, we have from time to time been reminded by the Leader of the House that there is an arrangement—it seems to me to be fairly loose, but I am assured that it exists—for substantial new legislation to be reviewed by government, which I do not think is the same as Parliament, after it has been in force for three years. Of course, if we had more time, I might tease the noble Lord about why he feels that it is necessary to provide for someone else to do something in four years.

[Baroness Browning]

My Lords, Amendment 311 would mean that the police and crime commissioner provisions of the Bill cease to have effect after four years unless, following an independent review and report, the House approves an order by the Secretary of State for the arrangements to continue.

Many noble Lords have spoken in the course of these debates of the risk of disruption to the police service, and I have set out as we have gone along how that will be minimised. However, it would be extremely disruptive to the police service if, a few months before the second set of elections, the elected PCC is removed and the unelected police authority is re-established.

I hear what my noble friend Lady Hamwee says about review. I fully support the principle that legislation is reviewed. I say this having served in another place for nearly 20 years. We get very excited about legislation when we are legislating and after a year or two we forget about it. Then things transpire and we think that perhaps we should have looked at it. As a principle that is a very good thing. However, I am unable to accept Amendment 311 as it would be extremely disruptive. I ask the noble Lord to consider withdrawing it.

[Lord Rosser]

My Lords, the key phrase in the contribution of the noble Baroness, Lady Hamwee—I think I have written it down correctly—was: “I hope that it will be reviewed … as part of post-legislative scrutiny”.

[Baroness Hamwee]

I said:

“as part of a programme of post-legislative scrutiny”.

[Lord Rosser]

I think the noble Baroness is being somewhat optimistic if she believes that is necessarily going to happen.

The amendment provides for an affirmative decision by Parliament on the report that would be produced. The Minister said that it would be extremely disruptive for the police. Of course, it would also be extremely disruptive for the biggest system change in policing for years to continue if did not work or operate properly as Parliament intended. If it is working properly, no doubt the report would be received and the affirmative resolutions would be carried. If it is not working, surely it is only appropriate that it should be challenged and processes put in place to try to put it right.

However, I do not intend to pursue this matter to a vote. I have expressed my views on the response that I have received from the noble Baroness and the reason why I think the amendment is justified. I beg leave to withdraw the amendment.

Police Reform and Social Responsibility Bill

Debate between Lord Rosser and Baroness Hamwee

Monday 4th July 2011 Lords Chamber

[Baroness Hamwee]

My Lords, I take this opportunity to put on record my thanks to the Bill team. I raised a number of questions on this group and am very happy to have had their answers. I feel no need to raise the points in debate. I am extremely grateful.

[Lord Rosser]

As the Minister has indicated, these are relatively minor and technical amendments that correct some drafting errors. As she said, they also reflect the recommendations of the Delegated Powers and Regulatory Reform Committee that any regulations dealing with mandatory collaboration or the consequences of a failure by local authorities to participate in the formation of police and crime panels should be made by affirmative rather than negative resolution. We support the change to these regulations being by affirmative rather than negative resolution, thus requiring the specific approval of your Lordships' House.

Police Reform and Social Responsibility Bill

Debate between Lord Rosser and Baroness Hamwee

Tuesday 24th May 2011 Lords Chamber

[Baroness Hamwee]

My Lords, it is a late hour, but that is not anyone’s doing, and I am sure that the noble Lord, Lord Harris, has sustained greater insults than that in his career.

I am not sure, either, what Amendment 155 is doing in this group. It was in another group. I observed that it should be in a group on London and this is where it ended up. It is one of a number of amendments that say that the London Assembly should be able to decide its own procedures and how it works as a policing and crime panel. However, we will debate that point in another group.

I have considerable sympathy with these amendments on the City of London. I am asking myself why there is a separate force and why the issue has not been brought within what seems entirely the right vehicle for addressing the matter. I can only assume that it is in the filing tray that has “too hard” written on it and that the Government are unwilling to take on the City. But it is an important issue. If we are being asked, as we are, to look at inserting democracy into the governance of our policing arrangements, the City should not be exempt from that. They have a lot of experience of elections in the City—there is no problem in carrying that out.

There are so many anomalies, with the separate precepting arrangements and what has always seemed to me unnecessary bureaucracy and complication because of the division. The noble Lord, Lord Brooke, referred to expertise, and I accept that there is enormous expertise, but it is transferable and needs to be so, because whether or not the City likes it London’s financial centre is not only where it used to be. It has moved eastwards, and the expertise in fraud and other matters specific to business are no longer, in the 21st century, relevant only to the Square Mile.

This Bill is the right context for this debate. There is a considerable distinction between this issue and that of teachers’ salaries in 1944, and I am sorry that the Government have not felt able to extend the new governance arrangements to the whole of England.

[Lord Rosser]

My Lords, this is clearly a perfectly legitimate amendment and this is clearly the time when the issues that this amendment raises ought to be discussed. They ought to be discussed as part of this Bill. Having listened to the complaint that this is not a matter that should be discussed late in the evening, I am not sure whether that means—if the Minister is not going to accept the amendment—that if it appeared at Report stage at five o’clock in the afternoon it would be universally welcomed and supported. I was not quite clear on the significance of the comment about the time of day.

Clearly, the purpose of the amendment is to bring the arrangements for the City of London in line with the proposals for the rest of England and Wales—and one looks forward to the explanation that we will receive from the Minister as to why, one assumes, the Government are not entirely enthusiastic about going down this road. The noble Baroness, Lady Hamwee, made the interesting and relevant point that, if the argument is that you need a separate police force for the City of London because it is a financial centre, it should be taken into account that we now have around Canary Wharf another financial centre. Presumably, it is under the Metropolitan Police, unless I am to be told otherwise. If the Metropolitan Police is considered to have the expertise to handle the issues that might arise there, why is it not considered that it could encompass, by taking over or by merger, the City of London Police as well? The Metropolitan Police force has considerable expertise which is recognised internationally and which is used on a national basis in England and Wales, not simply confined to its area. Yet the inference through having a separate force for the City of London is that somehow the Metropolitan Police, despite the expertise that it has, would just not be able to cope.

Identity Documents Bill

Debate between Lord Rosser and Baroness Hamwee

Wednesday 17th November 2010 Lords Chamber

[Lord Rosser]

We are not actually on Amendment 4. I have been speaking to Amendment 5.

[Baroness Hamwee]

My Lords, perhaps the Minister could confirm that he would be happier—I am not quite sure that I took this from his speech—for such lessons as there may be from a relatively short and limited experience to be included in the wider work that the Government are doing. Of course, one would not disagree that any available lessons should be learnt; but I doubt whether that work is as useful to Parliament if it is provided separately and discreetly from other work being done on cyber crime and related areas. It is an enormously important area and Parliament will look forward to debating it further. I am not convinced that this is precisely the way to go.

Immigration (Biometric Registration) (Amendment) Regulations 2010

Debate between Lord Rosser and Baroness Hamwee

Monday 8th November 2010 Grand Committee

[Lord Rosser]

My Lords, I thank the Minister for his explanation of these regulations which, as I understand it, continue the incremental rollout of biometric immigration documents to include groups of foreign nationals who are subject to immigration control and who have limited leave to stay in the United Kingdom. I understand that the biometric immigration document issued under the regulations is a card with a chip containing biometric data; namely, fingerprints and a digital facial image.

As the Minister said, these are the fifth set of regulations to be made under the biometric registration provisions of the 2007 Act and are intended to enable us to move closer towards complying with the EU requirement for member states to confirm leave to stay through the issue of a residence permit in the form of a card from May 2011, and with a biometric card from May 2012. Do these regulations mean that the UK will have fully complied with its legal obligations under the EU legislation by May 2012, or am I to infer from a comment the Minister made towards the end of his speech that still further measures need to be taken to enable us to fully comply?

The Minister said that under these regulations individuals applying for further leave to stay in the UK for more than six months under the immigration rules in tiers 1 and 5 of the points-based system for migration will now have to apply for a biometric immigration document, as will the dependants of such applicants. The changes apply only to foreign nationals subject to immigration control. Already covered by the scheme are those in tier 2 of the points-based system—who, as I understand it, include intra-company transfers—and tier 4, which covers students. Paragraph 7.4 of the Explanatory Memorandum states:

“Employers are also becoming increasingly familiar with the biometric immigration document as the numbers in circulation have increased following previous roll outs”.

I think the Minister said—I may well have misunderstood him—that there were 3,500 such documents now in circulation. Can he clarify whether that is the case? If it is not, what is the figure, and by how many will the number increase as a result of the order coming into force? In the light of the statement in the impact assessment that tiers 1 and 5 constitute approximately 16 per cent of the total projected numbers of biometric resident permit applicants, will the 3,500 be increased by roughly one-sixth?

To what extent are the numbers of people extending their stay in the United Kingdom under the terms of these regulations affected by the proposed cap on the numbers coming to this country each year? Will the provisions of these regulations or the earlier regulations covering tier 2—which I thought covered intra-company transfers, among other things—made under the biometric registration provisions of the 2007 Act apply to those coming to this country under intra-company moves, who, it appears, may now not come within the constraints of any intended cap on numbers coming to Great Britain.

Paragraph 8.1 of the Explanatory Memorandum states that there has been no formal consultation, but that the rollout strategy and policy have been discussed with internal and external stakeholders. Can the Minister indicate exactly who were the external stakeholders with whom discussions have taken place, if there were any in addition to those referred to in paragraph 9.1 of the Explanatory Memorandum? It may be that paragraph 9.1 covers all external stakeholders.

The impact assessment refers also to the social costs of £8.1 million which relate to the costs of travelling to enrol biometrics. Can the Minister say how the figure is calculated and broken down, at least in general terms? Likewise, the impact assessment refers to a reduction in benefits fraud and states that this could total £0.4 million over 10 years. Once again in general terms, how is that figure calculated? How does one come to the conclusion that that would be the figure after 10 years?

The Immigration Law Practitioners’ Association expressed concerns that processing times will increase when the volume of applications increase because applicants from tiers 1 and 5 will also need to enrol biometrics. The Explanatory Memorandum appears to reject these concerns. On what basis, and against what criteria, have the Government come to the conclusion that they have increased the capacity of enrolment facilities and options sufficiently, as is inferred on page 21 out of 56 of the Explanatory Memorandum documents?

Likewise, the ILPA expressed a view that the requirement for a biometric residence permit will adversely affect frequent business travellers because it adds an extra stage to the application process. The response was that, as part of the review of the front-office biometric enrolment service, the Government will be looking to further improve the service offered to applicants, including increasing the availability of enrolment offices and faster processing times. Since, as I understand it, the policy is to be implemented next month, what specific further improvements do the Government intend to make to address this point made by the immigration law practitioner service, and its further point that the range of locations at which biometric data can be enrolled, to which the Minister referred in his speech, is limited?

I appreciate that there are a number of questions there. I do not know the extent to which the Minister can respond today, but I would be grateful if he could write to me on those questions that he is unable to respond to.

[Baroness Hamwee]

I, too, am grateful for the explanation. I have given the Minister notice of some questions which, in fact, cover very much the same ground as those asked by the noble Lord, Lord Rosser.

On the question of compliance with EU requirements; to put it another way round—what more is outstanding on that score for the UK fully to comply? My other questions are practical in regard to enrolment and access by employers to the information. I am unclear how biometric information, as distinct from simply the production of the card, makes it easier for employers to check eligibility to work in the UK—something which the impact assessment tells us will be the case. Can employers check the position without having access to a reader? The Minister mentioned a telephone verification service. I do not know whether I am confusing the different bits of the mechanics of this, but I am unclear what that service will provide.

The Minister also talked about 11 centres for enrolment, plus 17 Crown post offices. This seems to have been an issue in the consultation. What further rollout will there be and what geographical coverage has already been obtained by the centres that are in place? They seem to be quite small in number.