Immigration Bill (Fourteenth sitting)
Robert Buckland Excerpts(9 years, 2 months ago)
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The Solicitor General (Robert Buckland)
On a point of order, Mr Owen. This morning I assured the hon. Member for South Shields that a letter would be written. It has indeed now been sent to you and Mr Bone. I hope that that will answer some of the queries that she raised in debate some sittings ago.
Keir Starmer
I am grateful to the Minister for those assurances. I wonder aloud how long that immunity provision, however long-standing it is, can survive. The idea that people are immune from criminal law in that way is hard to reconcile with later legislation, but that is a much bigger argument than the one we are having now. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 109, in schedule 8, page 114, line 17, leave out “detain” and insert “retain”.
This amendment and amendments 110 and 112 are minor drafting changes for consistency with language used elsewhere in the Schedule and have no substantive effect.
Amendment 110, in schedule 8, page 118, line 40, leave out “detain” and insert “retain”.
See the explanatory statement for amendment 109.
Amendment 111, in schedule 8, page 122, line 6, leave out “(in England and Wales or elsewhere)” and insert “in the United Kingdom”.
This amendment is a minor drafting change for consistency with the language used in the equivalent provisions for England, Wales and Scotland.
Amendment 112, in schedule 8, page 123, line 17, leave out “detain” and insert “retain”.—(James Brokenshire.)
See the explanatory statement for amendment 109.
Schedule 8, as amended, agreed to.
Clause 37 ordered to stand part of the Bill.
Clause 38
English language requirements for public sector workers
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clauses 38 to 45 deal with the question of English language requirements for public sector workers.
I will deal with the subsections of clause 38 in turn. Subsection (1) sets out the requirement for public authorities to ensure that each of their workers in customer-facing roles speak fluent English. I know you will have an interest in this, Mr Owen: clause 43 provides specifically that where there are statutory duties in Wales, the requirement includes fluency in English and in the language of heaven. All members of the public who access public services need to be able to understand the information provided and be confident that their needs are thoroughly understood. Ensuring that that is the case will not only create better and more efficient services for taxpayers but will contribute to meeting our manifesto commitments to promote British values, in a positive and appropriate way.
Subsection (2) will require all public authorities to have regard to a code of practice when deciding how to comply with the duty set out in subsection (1). Of course, public authorities will have an opportunity to help shape that code of practice by responding to the open consultation that has been live since 13 October and will run until early December. Copies of the consultation documents have been placed in the Library of the House.
Subsections (3) and (4) will require each public authority to operate a complaints procedure. Citizens must, of course, be able to report their experience of a customer-facing worker not speaking fluent English. Public bodies must consider and respond to those complaints.
Subsections (5), (6) and (7) explain that a worker in the scope of the duty will be someone working under a contract of employment or of apprenticeship with a public authority, as a contractor to do work personally for a public authority, as an agency worker or as a police officer, civil servant or member of the armed forces. Speaking with members of the public must be a “regular and intrinsic part” of their role.
Keir Starmer
There is some concern that such a clause could operate in a discriminatory manner, with complaints and assumptions being made about what is fluent English and who is able to speak fluent English. Will the Solicitor General give an assurance that effective measures will be put in the code or elsewhere to ensure that any potential discriminatory effects and consequences are mitigated or eliminated?
The Solicitor General
I can give the hon. and learned Gentleman several assurances. First, in assessing the potential discriminatory impact of the clause, the consultation process is an important part of allowing Government to understand precisely what the pressures might be. I also assure him that the standards of fluency will be assessed by the employer. The draft code of practice already contains welcome indicative standards for what various qualifications mean in terms of English fluency. Therefore, within the interview and selection process, there will be systems in place that can be deployed to deflect some of the more specious complaints that might be made. There will be an objective standard rather than a somewhat fluid situation, which I am sure he agrees would be wholly unsatisfactory.
I was going to deal with the basic definition of fluency that will underpin the code of practice. Subsection (8) explains that for the purposes of the Bill,
“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.”
Therefore, it follows that employers will have to satisfy themselves of that criterion among the others that they might deploy in seeking persons to fill vacancies for customer-facing jobs. Subsection (9) clarifies that the requirement to speak fluent English applies to existing workers and new members of staff. Finally, subsection (10) provides that the clause does not apply to those who work for public authorities where work is carried out mainly or wholly outside the United Kingdom.
The code of practice will be an important part of fulfilling our commitment, and it will assist public authorities to comply with every aspect of the new duty. I commend the clause to the Committee.
Anne McLaughlin (Glasgow North East) (SNP)
Part 7 of the Bill, which comprises clauses 38 to 45, is completely unnecessary and unworkable. It will have negative consequences, whether intended or not; I have some difficulty coming to a conclusion on that one. Perhaps when the Minister speaks later, it will be easier for me to do so. It goes against the wider measures advocated by the Government in the Bill. I will argue those points in turn, but I hope that the Committee will allow common sense to prevail and scrap this part of the Bill.
It is clear that the clauses are unnecessary from the overwhelming lack of evidence from the Government or anyone else that legislation is required. Page 25 of the explanatory notes state that clause 38 is being introduced in order
“to improve the quality of service provided by public authorities, such as the NHS and the police”.
The question is surely why those professionals have not demanded such legislation themselves. I note the submission from the British Medical Association stating that doctors must already pass the international English language testing system to a level set by the General Medical Council or provide evidence to the equivalent. If the Committee does not agree to scrap part 7 of the Bill, will the Minister provide assurances that it will not result in duplication?
The fact is that part 7 in its entirety is merely a duplication of what any employer asks of an applicant: do they have the skills for the role? I challenge any Member here to tell me whether they know of any firefighters turning up to save our lives who have to bring an interpreter with them, or whether any of them have visited a GP and had to explain their symptoms in mime because the GP does not speak English. It simply does not happen. Many of my constituents have terrible problems with the Department for Work and Pensions. I was of the view that that was due in the main to unfair policies, but I had not considered that it is perhaps because the Government employ people who do not speak the language of this country. I have never heard of that, and have never experienced it.
That point is made eloquently by the Royal College of Nursing, which argues against duplicating and undermining the standards being developed by the Nursing and Midwifery Council. That is what it is: an undermining of professional bodies. The fact remains that it is professionals, not Ministers, who have a sophisticated understanding of the level of English required for professional roles. The RCN states:
“We question whether it would be appropriate for ministers to set out standards rather than professional regulators, such as the NMC, as is currently the case.”
Far be it from me to argue for lighter-touch regulation to a Tory Government, but the professionals themselves are safeguarding public services, so it is difficult to envisage a Minister, of whatever party, devising a more sophisticated practice-led assessment of language skills than the professional bodies representing the public sector. The Government are fond of saying that they are fixing the roof while the sun is shining, but here they are putting a leaky tin roof in place of one that functions. Like much of the Bill, regardless of our respective opinions on the rights and wrongs, these provisions simply do not make sense.
Anne McLaughlin
Thank you, Mr Owen. Discrimination has increased following the trial of the right-to-rent provisions, which has led to people being judged not to look or sound British and to their having increased difficulty finding accommodation. The exact same prejudice will now face those working in the public sector, with people who sound as if they are not from Britain at risk of spurious complaints and victimisation.
Our public sector workers are doing increasingly difficult work, thanks to the Government’s cuts agenda. They are often working with fewer resources and taking on more responsibilities. It does not take a genius to see that this will be stressful for the worker and for those using the service, nor does it take a particularly high IQ to imagine that a disgruntled and stressed-out member of the public may take out their frustration with their situation on a member of staff. If that person is obviously an immigrant, there is a risk that complaints will be brought against them on the grounds of language ability—a complaint that would then have to be investigated. All that does is waste time and money, and increase the stress levels of everyone involved.
I have seen it myself. I have been in a GP surgery where I heard people muttering about the African receptionist—“Could they not get somebody who can speak English?”—when she was speaking perfectly good English, since it was her first language, as it is for many people coming to this country. All that was different about her was the colour of her skin and her accent. Now those racist mutterings can be turned into formal complaints—[Interruption.] Yes, they can. The Government are legitimising that racism instead of tackling it head on. If I am wrong about the intentions, will the Minister tell us if and how he will assess the implementation of this part of the Bill? If he does not intend this part of the Bill to have such consequences, and if he does in fact care but does not believe that my fears are founded, will he at least consider the possibility that I might be right, assess this at a later stage and be willing to review it if necessary?
Part 7 makes it much more difficult for genuine migrants to integrate. It places a ludicrous burden on public agencies at a time when the Government are asking them to tighten their belts. It punishes those who have come here legally and are trying to get on and contribute to this society. Part 7 legitimises the rantings of racists, who will say, “Well, there is obviously a problem or the Government wouldn’t have to have a law to stop it.” In fact, it goes against much of what people believe the Tory party stands for—not me, incidentally, but some people. Part 7 certainly goes against the principles of the Scottish National party, and I urge all Members to reject clauses 38 to 45.
The Solicitor General
I would like to say that this debate has created more light than heat, but I am afraid that I cannot do so. With the greatest of respect to the hon. Lady, people such as the receptionist she mentioned will be protected by these provisions, safe in the knowledge that they have fulfilled the criteria set out in the code of practice. They have nothing to fear from people who, through racism or prejudice, may wish to make specious claims. I wholly reject her prospectus.
Anne McLaughlin
If the Minister is saying that that receptionist will be protected against spurious complaints, does he mean that nobody is allowed to make a spurious complaint? If so, will it be decided that a complaint is spurious before the receptionist is informed? The stress levels suffered by someone who has had an unlawful complaint made against them are just as bad as they would be if the complaint were founded.
The Solicitor General
I am sorry, but the hon. Lady acknowledged that several parts of the public sector have basic proficiency requirements in place. I am afraid that all of us in a public sector role, including everyone in this building and elsewhere, will be the subject of complaints from time to time. Some of those complaints might be wholly justified; others will not be justified. I do not accept for one minute that these provisions will increase the culture of fear that she has colourfully, but wholly erroneously, painted. She is right to say that some parts of the public sector have minimum standards of English for their staff. The provision underpins and widens that duty so that the rest of the public sector is brought into line with those who are leading the way and being proactive.
Anne McLaughlin
I thank the Minister for giving way—I appreciate it. Which parts of the public sector employ people who do not speak English in a public-facing role? I have listed all the possibilities, but I have never experienced it, and I have seen no evidence that anyone here has experienced it.
The Solicitor General
I am grateful to the hon. Lady for sharing her anecdotal experiences, but the Home Office has done pre-consultation modelling, based on the proportion of over-16s in employment in the public administration, education and healthcare sectors according to 2011 census data—those are important, objective, statutory data obtained from the British population. According to that modelling, about 3.6 million employees are within the scope of the proposed duty and about 1.5 million employees in Great Britain, excluding Northern Ireland, are subject to English language standards, so an extra 2.1 million employees will be newly affected by the duty. We anticipate that between a low of 8,500 workers and a high of 25,000 workers may not have the required standards of English fluency. There is objective evidence upon which we can base this policy.
The policy is not designed suddenly to change the game or somehow create a wholly new structure that will alter the balance and change societal attitudes towards people who have a heavy accent. I include myself in that—I know the hon. Lady is as proud of her accent as I am proud of mine. We are seeking to standardise and enhance the position of people who have come to this country to work and who might have a different ethnicity or background. They will be employed under the same objective criteria that will be applied to everybody else in the public sector.
The Solicitor General
I will give way in a moment, but first I want to read a highlighted extract from the draft code of practice consultation relating to complaints. I hope that it will help the hon. Lady. Paragraph 4.5 says:
“Public authorities are not obliged by this Code of Practice to respond to complaints that are vexatious, oppressive, threatening or abusive. These should be given their usual dictionary meaning and could be defined as those complaints that are without foundation and/or which are intended to result in harsh or wrongful treatment of the person referred to in the complaint. In these types of circumstances a complaint should not be allowed to continue.”
I commend that paragraph to the House.
Keir Starmer
In so far as the measures extend the existing duties on public authorities to consider the requirement in the first place, they do not go much further than the existing position, but I think that the hon. Lady is pointing at the complaints procedure, which the Minister just touched on. Will he assure the Committee that the only complaints that the provision is intended to open up are complaints against the public authority for failing to carry out its duties, and not complaints made about an individual? That would give a considerable degree of assurance that there is no intention for the measures to allow anyone to say, “I am complaining about X,” when what they are really complaining about is public authority Y, which has not done its job properly. There is a big difference in terms of how the complaints procedure would then be used.
The Solicitor General
I can confirm that paragraph 4.1 of the draft code says:
“This section of the Code is about the procedure a public authority should take should there be a complaint regarding a breach of the fluency duty.”
That means a complaint against the public authority for having breached that duty. There are no sanctions in part 7 that could be applied directly to staff. As I said, it is a duty for the public authority.
Keir Starmer
This is an important point. Can the Minister write to us on that specific issue? It also arises from clause 41(2)(c), according to my reading; I think that he would provide assurance if he wrote to the Committee—to me and other hon. Members—to say that that is the intention of the complaints procedure. One can see the scope otherwise for concern about complaints.
The Solicitor General
I understand entirely, and I am happy to do so. I assure the hon. and learned Gentleman and any Committee members concerned about consequences for staff that dismissal would be a matter extremely far down the line in these procedures. We are talking about improving systems. That does not entail an ad hominem attack on individuals; it is about the public authority and any perceived failure on its part.
Keir Starmer
I am grateful for the assurance about frivolous and other vexatious complaints. I know from having 9,000 staff of my own that what causes great anxiety is the fact that a complaint has been made to the individual, even if some weeks or months down the line it might be ruled out. If a number of complaints are made about a particular member of staff, that will increase anxiety hugely. The greater the clarity that the Minister can give here, the better. For a member of staff, simply knowing that a complaint might be knocked out in three months does not affect the anxiety that they feel when doing in their job.
The Solicitor General
I take point made by the hon. and learned Gentleman, and that made by the hon. Member for Glasgow North East. I will write to the Committee, as I have indicated.
On the question of bureaucracy, the measures take a minimalist approach. The code of practice will guide public authorities to align their actions regarding the new duty with existing practice. We expect a minimal expansion to existing procedures to suffice. Our open consultation will allow any concerns about bureaucracy to be raised and taken into account.
Anne McLaughlin
Does that mean that the British Medical Association, for instance, will be allowed to make its own assessment?
The Solicitor General
The hon. Lady has mentioned a body that operates its own minimum standards. I envisage that where organisations are already doing that work, it will be a fairly easy task for them to satisfy a code of practice, but again, I would be interested to hear what they have to say as part of the consultation. I am sure that the intention is for dovetailing in any expansion of the duty, so that we standardise it across the whole public sector, thanking those particular outliers for being proactive in the area.
Keir Starmer
Again, this is by way of seeking assurance. This discussion is in the context of an Immigration Bill, but the measures will cover all individuals. Can the Minister give an assurance that careful consideration will be given to how the measures apply to individuals with any kind of learning or speech difficulty, regardless of background, ethnicity and so on? There is the potential for impact on people who fall into those categories. I know that that is not the intention, but we would gratefully receive a high level of assurance.
The Solicitor General
I am happy to give that. From my own understanding and experience of such issues, I am extremely keen to ensure that people who are fluent but who might, due to disability, express themselves slightly differently, are not discriminated against in any way.
On the question of setting a single standard, again, to enlarge the point that I was making, because the public sector has such a broad range of customer-facing roles, whether they be heart surgeons or parking enforcement officers, different particular standards will be appropriate. Therefore, the code will guide public authorities to set a standard that is proportionate to the nature of the spoken interaction that is an integral part of each role. To reinforce the point that I just made to the hon. and learned Gentleman about discrimination, public authorities, like all employers, are prohibited from discriminating against members of staff and job applicants by the terms of the Equality Act 2010, under which disability is a protected characteristic. Of course that will be relevant to individuals with a speech impediment.
Anne McLaughlin
I appreciate the Minister letting me butt in so often. He has said that there is a public duty under equalities legislation not to discriminate against a potential employee, but discrimination happens and we know that it happens. It is far harder for someone to find a job if they are black; basically, it is much more difficult. The Committee has heard most of my fears, but my fear on this is that is that, just as landlords feel that they will discriminate whether they really want to or not, these measures will make employers more fearful of employing somebody who might get complaints against them because of language—not because they cannot speak the language fluently, but because they sound and look different. It will make it even harder for people to find employment. All the equalities legislation in the world is only useful if people know how to use it and have the resources to use it.
The Solicitor General
I hear the hon. Lady, but I must remind her that we are talking about public authorities, which have had to, quite rightly, adapt their practices to take into account legislation such as the Equality Act 2010, which consolidated and enhanced a number of other statutes passed over a generation or more, which in turn dealt with racism, disability discrimination and so on. They were Acts of Parliament passed by all parties in this House. I would be as distressed as she if a public authority misused in any way what I would submit are the benign duties in the clause to reverse the progress that we have made. It is not about whether somebody looks or sounds different; it is about basic standards of proficiency and fluency that will improve public services.
Keir Starmer
I apologise for adding to the shopping list of assurances, but it is done, I hope, in the right spirit and with concern that is shared across the House. This problem might have been addressed, but there must be some public authorities that use sign language for some of those deemed to be customers or service users. Those fluent in sign language may not in fact be able to speak fluent English. Perhaps there is an obvious answer to this—if there is, I apologise—but the words “speaks fluent English” in clause 38(8) cause me some concern. There may be an easy reassurance. If there is, I will be assured.
The Solicitor General
I am grateful to the hon. and learned Gentleman for raising an issue in which I take a personal interest—the use of British sign language and other means for deaf people to participate in all aspects of our mainstream life. To parenthesise for a moment, I am sure that he would be interested in the work that I am doing to explore why deaf people cannot serve on juries, for example. It seems to me wholly ridiculous, but that is the position at the moment. Perhaps we can talk about that offline.
A British sign language interpreter is of course arguably a reasonable adjustment that is provided under an employer’s duty towards staff with a disability under the Equality Act 2010. That would be part and parcel of a person’s work; so to use it as a basis for suggesting lack of fluency would be wholly wrong and self-defeating. It is important to remember that people with disabilities, with reasonable adjustments, increasingly form part of the mainstream workforce. The provision is not designed to cut across that.
I think we all benefit from the fact that people with different ethnic origins work in our public services. Whatever they sound like and wherever they are from we welcome them all; but it is important—and they would agree—that we make sure there is a basic standard, to ensure that all sections of society have the fullest confidence in our public services. The measure goes a long way to protect our public servants.
Paul Blomfield (Sheffield Central) (Lab)
I concur with the point that the Solicitor General makes, but I did not necessarily recognise the figures he gave earlier as a description of the problem. They were census data, which did not necessarily relate to the issue. However, let us assume that there is a problem. Is the Minister not concerned that what he wants to do will be undermined by the cuts of the order of 30% in the adult skills budget since 2010, which have had a direct impact on the courses in English for speakers of other languages that give people precisely the skills he is looking for? In the spirit of his proposals will he make representations to his colleagues in the Department for Business, Innovation and Skills to increase that budget?
The Solicitor General
At this stage what I will say is that those points need to be fed into the consultation, so that in the code of practice we get objective standards for fluency absolutely right. I note from the code of practice that there is a helpful table in the draft suggesting the stages of proficiency that can be equated with various qualifications, such as GCSEs, GCE A-levels or NQFs.
The hon. Gentleman makes an interesting point, which I would argue needs further discussion. I hope that if, when the code of practice is finalised, the issue he raises is causing problems, that will be reflected in a system that, while still objective, will include an understanding that fluency can sometimes be measured in a non-academic way, which would therefore need to be built into any assessment such as a written test or other proficiency test conducted by the employer or prospective employer when interviewing candidates for a job. That could be an objective standard.
Anne McLaughlin
Is not that the same as allowing the employers to follow their current recruitment processes and make the judgment themselves? If things are going to be that vague, why do not we just continue to allow employers to make the assessment themselves?
The Solicitor General
What we are doing is making sure that the practice spreads. Indeed, some employers do it already; but we think that the duty would spread it throughout the public service. The hon. Lady may well be right; normal assessment processes may be perfectly sufficient. Examples might be a spoken interview or the choice to require an applicant to answer a detailed interview question in English or Welsh, or to possess a relevant qualification, or pass a specifically tailored competency test. It is not a matter of heavy prescription.
The Opposition cannot have it both ways. On one level, they are telling us that they are concerned that the proposals will be too bureaucratic, and on another, when I suggest that this is in fact, more flexible, they ask what the point is. There is a point: it is all about spreading best practice through all levels of public service.
The Solicitor General
The clause sets out which public authorities must ensure that each of their workers in customer-facing roles speak fluent English or, in Wales, fluent English or Welsh. Hon. Members will understand that it is important to define the scope of the duty as broadly as possible so that we make sure that all members of the public receive advice, help and support in fluent English or Welsh, regardless of the nature of the public service.
Subsection (1) defines public authorities as any organisation that carries out functions of a public nature. Subsection (2) clarifies that that does not include other bodies that carry out functions on behalf of a public authority. For example, it excludes a private company that appears to the customer to be part of the local council’s services even though the service is actually provided by an independent organisation through a contract with the local authority. Subsections (3) and (4) clarify that this duty will apply in Scotland only if a public authority exercises functions which relate to a reserved matter.
Subsection (5) limits the scope of the bodies included in this duty very slightly to exclude the security services, the Secret Intelligence Service and the Government Communications Headquarters. Subsection (6) provides that a relevant Minister may add, modify or remove the name of a body in relation to this list. The term “a relevant Minister” is defined in clause 44 to include either the Secretary of State or the Chancellor of the Duchy of Lancaster. The regulation-making power to amend the list of public authorities must be done in accordance with the provisions that relate to regulations in clause 53.
That brings me to Government amendments 37 to 39. These technical amendments ensure that clause 53 applies to regulations made by either the Secretary of State or the Chancellor of the Duchy of Lancaster under part 7.
Question put and agreed to.
Clause 39 accordingly ordered to stand part of the Bill.
Clause 40
Power to expand meaning of person working for public authority
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clause 40 provides a power to make regulations to expand the meaning of a person in respect of whom this duty applies. Should the relevant Minister—the Minister of the Cabinet Office or the Chancellor of the Duchy of Lancaster—choose to make such regulations, the duty would apply to customer-facing staff of contractors and subcontractors delivering a public service through an arrangement with a public authority. To comply with the statutory duty in clause 38, public authorities need to have regard to the code of practice to ensure that the customer-facing staff of these organisations, as well as their own directly engaged staff, meet the language standard.
Public authorities need to make sure, first, that the standard of fluency applied is proportionate to the nature of each customer-facing role; and secondly that their complaints process allows citizens to report their experience of a customer-facing worker employed by such organisations who is not speaking fluent English. Hon. Members will be aware from our previous debate about the consultation that is now live that respondents are asked explicitly for their views on the impact of expanding the scope of the duty to the staff of private and third-sector suppliers. We will publish those views as part of the Government response to the consultation. However, any expansion of this duty to apply to the staff of private and third-sector providers of services will involve separate consultation before any regulations are made.
Question put and agreed to.
Clause 40 accordingly ordered to stand part of the Bill.
Clauses 41 and 42 ordered to stand part of the Bill.
Clause 43
Application of Part to Wales
Anne McLaughlin
I beg to move amendment 246, in clause 43, page 39, line 23, at end insert—
‘(4) This Part does not apply to Scotland.”
I have set out why I do not want this measure to be part of United Kingdom legislation, so this is really just to make the argument that if the rest of the United Kingdom does, indeed, want it—I have set out the different experiences of Members in the different countries—then it should not stand in Scotland.
The Solicitor General
I gently remind the hon. Lady that the title of clause 43 is “Application of Part to Wales”. I see the point she is making, so I do not want to make too lawyerly a point, but the provision relates to Wales rather than Scotland.
The purpose of the hon. Lady’s amendment is to exclude Scotland from the whole of part 7. Subsections (3) and (4) of clause 39—the governing clause of this part of the Bill—provide that the requirement for customer-facing public sector workers to speak fluent English applies in Scotland only to the extent that a public authority exercises functions related to a reserved matter.
Hon. Members may not be aware of a letter sent on 3 November from the Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights in the Scottish Government, Mr Alex Neil, to my right hon. Friend the Minister for the Cabinet Office and Paymaster General. In that letter, Mr Neil acknowledges that this part of the Bill will only apply to reserved matters, and we agree that any further extension into devolved matters would require a legislative consent motion.
I am grateful to Mr Neil and his team for the work that has been done with members of the British Government and the discussions with Scottish Government officials that have resulted in this proposal. I am also grateful to him for instructing his officials to ensure that the Cabinet Office received every support in understanding the landscape of the reserve public sector in Scotland. Such lines of contact have been established, and indeed the consultation continues. For all those reasons, I very much hope that the hon. Member for Glasgow North East will withdraw the amendment.
Anne McLaughlin
On a point of clarification, Mr Owen. Being a new MP and a new member of the Committee, I am a bit confused by the gentle reminder that the Minister gave me. Amendment 246 says:
“This Part does not apply to Scotland.”
I am not entirely sure what the Minister was referring to when he mentioned Wales—I am just looking for a bit of guidance on that. Do we have different pieces of paper?
The Solicitor General
As alluded to in the previous debate, clause 43 sets out how part 7 will apply to public authorities exercising functions of a public nature in Wales. I am grateful to the Clerk to the Committee for confirming my understanding that the clause title is not an amendable part of the Bill but an indicative description of the clause.
James Brokenshire
Let us look at the provisions. Paragraph 12 of the new schedule amends the Local Government (Miscellaneous Provisions) Act 1976 as follows:
“In section 62(1) (suspension and revocation of operators’ licences) before the “or”…insert…“…that the operator has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty”.
The point is that that will be a matter of established fact. The terms are further defined in proposed new section 79B of the 1976 Act, which is inserted by the new schedule, and defines immigration offences and immigration penalties. The measures will be embedded within the overall framework of the licensing arrangements. If the relevant local authority were, for example, to seek to revoke or suspend a licence, a legal process would no doubt be followed. The point is that it would be made clear whether an operator had been subject to these specific measures, because of the nature of the definitions.
The fit and proper person test is built in. It takes place when someone is applying for a licence. Immigration offences are a clear factor that will have to be weighed in any determination of whether someone is a fit and proper person. If someone does not have the right to be here, the new provisions make it clear that they should not be considered a fit and proper person. That is how we are embedding the measures within the existing process. We believe their operation can be effected smoothly. We will issue guidance, as I have already indicated, to assist local authorities in the implementation of the provisions.
This is a question of raising standards, to ensure that abuse does not take place within the sector. These are positive and important new provisions, which will see immigration enforcement agencies working with local authorities—something that, as I have indicated during our discussions, I strongly support. If we can get our activities embedded well, in places where immigration enforcement officers may come across intelligence and information, we can work smartly with other agencies such as local authorities to raise standards more broadly and root out abuse and rogue operators. The measures are important and distinct, and will, we hope, not only deal with immigration offending and people who are in the country unlawfully and engaging in employment or contracts for services, but raise standards in the sector more generally.
Question put and agreed to.
New clause 14 accordingly read a Second time, and added to the Bill.
New Clause 15
Supply of information to Secretary of State
‘(1) Section 20 of the Immigration and Asylum Act 1999 (supply of information to Secretary of State) is amended in accordance with subsections (2) to (10).
(2) For the heading substitute “Power to supply information etc to Secretary of State”.
(3) In subsection (1) for paragraphs (a) to (f) substitute—
“(a) a public authority, or
(b) any specified person, for purposes specified in relation to that person.”
(4) In subsection (1A) in each of paragraphs (a) and (b) for “a person listed in subsection (1) or someone acting on his behalf” substitute “a public authority or someone acting on behalf of a public authority”.
(5) After subsection (1A) insert—
“(1B) This section does not apply to—
(a) information which is held by the Crown Prosecution Service, or
(b) a document or article which comes into the possession of, or is discovered by, the Crown Prosecution Service, or someone acting on behalf of the Crown Prosecution Service,
if section 40 of the UK Borders Act 2007 applies to the information, document or article.”
(6) After subsection (2A) insert—
“(2B) Subsection (2A)(a) does not affect any other power of the Secretary of State to retain a document or article.”
(7) In subsection (3) after paragraph (d) insert—
“(da) anything else that is done in connection with the exercise of a function under any of the Immigration Acts;”.
(8) After subsection (3) insert—
“(3A) “Public authority” means a person with functions of a public nature but does not include—
(a) Her Majesty’s Revenue and Customs,
(b) either House of Parliament or a person exercising functions in connection with proceedings in Parliament,
(c) the Scottish Parliament or a person exercising functions in connection with proceedings in the Scottish Parliament,
(d) the National Assembly for Wales or a person exercising functions in connection with proceedings in that Assembly, or
(e) the Northern Ireland Assembly or a person exercising functions in connection with proceedings in that Assembly.”
(9) Omit subsection (4).
(10) After subsection (6) insert—
“(7) Nothing in this section authorises information, a document or an article to be supplied if to do so would contravene a restriction on the disclosure of information (however imposed).”
(11) After section 20 of the Immigration and Asylum Act 1999 insert—
“20A Duty to supply nationality documents to Secretary of State
(1) This section applies to a nationality document which the Secretary of State has reasonable grounds for believing is lawfully in the possession of a person listed in Schedule A1.
(2) The Secretary of State may direct the person to supply the document to the Secretary of State if the Secretary of State suspects that—
(a) a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and
(b) the document may facilitate the removal.
(3) A person to whom a direction is given must, as soon as is practicable, supply the document to the Secretary of State.
(4) If the document was originally created in hard copy form and the person possesses the original document, it must be supplied to the Secretary of State unless it is required by the person for the performance of any of the person’s functions.
(5) If the original document is required by the person for the performance of any of the person’s functions—
(a) the person must, as soon as is practicable, supply a copy of the document to the Secretary of State, and
(b) if subsequently the person no longer requires the original document, the person must supply it to the Secretary of State as soon as is practicable after it is no longer required.
(6) Subsection (5)(b) does not apply if the Secretary of State notifies the person that the original document is no longer required.
(7) If subsection (5) applies the person may make a copy of the original document before supplying it to the Secretary of State.
(8) The Secretary of State may retain a nationality document supplied under this section while the Secretary of State suspects that—
(a) a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and
(b) retention of the document may facilitate the removal.
(9) Subsection (8) does not affect any other power of the Secretary of State to retain a document.
(10) The Secretary of State may dispose of a nationality document supplied under this section in such manner as the Secretary of State thinks appropriate.
(11) Nothing in this section authorises or requires a document to be supplied if to do so would contravene a restriction on the disclosure of information (however imposed).
(12) The Secretary of State may by regulations amend Schedule A1 so as to add, modify or remove a reference to a person or description of person.
(13) Regulations under subsection (12) may not amend Schedule A1 so as to apply this section to—
(a) either House of Parliament or a person exercising functions in connection with proceedings in Parliament,
(b) the Scottish Parliament or a person exercising functions in connection with proceedings in the Scottish Parliament,
(c) the National Assembly for Wales or a person exercising functions in connection with proceedings in that Assembly, or
(d) the Northern Ireland Assembly or a person exercising functions in connection with proceedings in that Assembly.
(14) In this section “nationality document” means a document which might—
(a) establish a person’s identity, nationality or citizenship, or
(b) indicate the place from which a person has travelled to the United Kingdom or to which a person is proposing to go.”
(12) In section 166 of the Immigration and Asylum Act 1999 (regulations and orders)—
(a) after subsection (5) insert—
“(5A) No regulations under section 20A(12) which amend Schedule A1 so as to—
(a) add a reference to a person or description of person, or
(b) modify a reference to a person or description of person otherwise than in consequence of a change of name or transfer of functions,
are to be made unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.”, and
(b) in subsection (6), before the “or” at the end of paragraph (a) insert—
“(ab) under section 20A(12) and which falls within subsection (5A),”.’
(13) Before Schedule 1 to the Immigration and Asylum Act 1999 insert the Schedule A1 set out in Schedule (Duty to supply nationality documents to Secretary of State: persons to whom duty applies).”—(The Solicitor General.)
This amendment expands the information gateway in section 20 of the Immigration and Asylum Act 1999 for the voluntary supply of information to the Secretary of State for immigration purposes. It also places a duty on authorities listed in new Schedule A1 to that Act (see NS2) to supply nationality documents to the Secretary of State where directed to do so.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss Government new schedule 2—Duty to supply nationality documents to Secretary of State: persons to whom duty applies.
The Solicitor General
The new clause expands the existing information gateway in section 20 of the Immigration and Asylum Act 1999 for the voluntary supply of information to the Secretary of State for immigration purposes. It also places a duty on the authorities listed in new schedule 2 to supply nationality documents to the Secretary of State where directed to do so.
At the moment, in addition to common-law data-sharing powers, section 20 of the 1999 Act allows for information and articles from specified public authorities, such as the police and the National Crime Agency, to be supplied to the Secretary of State for immigration purposes. We would like to ensure that other public authorities that may find themselves in possession of information or documents that may be used for immigration purposes have clear statutory authority to pass those to the Home Office. The new clause will ensure that any public authority, other than those expressly excluded, may provide information and documents to the Secretary of State for immigration purposes, should it wish to do so.
We also want the Secretary of State to be able to require the provision of nationality documents that are lawfully in the possession of specified public authorities. That power would be exercisable where the Secretary of State suspects that a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts and that the document may facilitate the removal.
I want to make it abundantly clear that the new clause does not require the listed bodies to collect data or information on behalf of the Secretary of State or to seize documents from people, as it applies only where the Secretary of State has reasonable grounds for believing that a document is already lawfully in a body’s possession—that is to say, that it holds the document for the purposes of its functions.
To give an example, a person may be arrested for overstaying his visa in the UK. Immigration officers search his home for a passport or other documentation that will help with obtaining an emergency travel document from his embassy. They do not find it, but they do discover a letter to him from his local council. An immigration officer can then contact the council and ask whether it has taken a copy of that person’s passport or ID card, or a record of the number. Under the new powers, if the council has such a document, the immigration officer may direct that it is sent to the relevant immigration team. If the council confirms that it does not have such a document, there is no further action for it to take.
In a nutshell, we believe that it is important that the public sector works together to achieve effective immigration control. For those reasons, I ask that new clause 15 and new schedule 2 stand part of the Bill.
Question put and agreed to.
New clause 15 accordingly read a Second time, and added to the Bill.
New Clause 16
Detention etc. by immigration officers in Scotland
‘(1) Section 26B(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (interpretation of Part 3) is amended as follows.
(2) In the definition of “immigration offence”—
(a) after “means” insert “— (a)”, and
(b) at the end of paragraph (a) insert “, or
(b) (insofar as it is not an offence within paragraph (a)) an offence under the Immigration Acts or in relation to which a power of arrest is conferred on an immigration officer by the Immigration Acts;”.
(3) In the definition of “immigration enforcement offence”, omit paragraph (a).’—(The Solicitor General.)
This amendment ensures that the Scottish powers of detention prior to arrest and of arrest without warrant apply to all immigration offences contained in, or for which an immigration officer has a power of arrest under, the Immigration Acts. It ensures consistency in the immigration-related criminal investigation powers of immigration officers across the United Kingdom.
Brought up, and read the First time.
The Solicitor General
I beg to move, That the clause be read a Second time.
The aim of new clause 16 is to ensure that there is consistency in the immigration-related criminal investigation powers of immigration officers across the United Kingdom. As I have mentioned in this Committee, we have been involved in a dialogue with the Scottish Government to ensure that this clause, as with others in the Bill, will enable immigration officers to work effectively within the Scottish criminal justice system.
In England, Wales and Northern Ireland, a person may be arrested and interviewed in accordance with the Police and Criminal Evidence Act 1984 or the Police and Criminal Evidence (Northern Ireland) Order 1989 until a decision is made on whether they should be charged with the offence. In Scotland, that differs to the extent that in most circumstances, a suspect can currently only be questioned if they are detained but not yet arrested. Once the suspect is arrested, the general rule is that they cannot be questioned. That means that immigration officers in Scotland cannot properly investigate immigration-related offences for which they have a power of arrest under the Immigration Acts, but do not have the power to detain pending arrest.
Immigration Bill (Eleventh sitting)
Robert Buckland Excerpts(9 years, 2 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Solicitor General (Robert Buckland)
Clause 31 deals with the important issue of rights of appeal relating to persons who claim to have a right to remain in the United Kingdom on asylum or human rights grounds, but whose claim has been refused. It has long been established that, in some cases, a person can be removed and deported before an appeal is brought or heard. Indeed, the previous Labour Government introduced powers in 2002 to certify claims that were defined as “clearly unfounded” such that persons bringing unfounded claims could be removed before bringing their appeal. That was extended to deportation in 2007. Then, in 2014, it was extended further so that arguable claims from foreign national offenders could also be certified when deportation pending appeal would not be in breach of that person’s rights under the European convention on human rights or the rights of any other person affected by the decision.
The context is important in this debate, because the proposed change builds on the success of previous alterations, which have represented an incremental approach. The 2014 framework was recently confirmed in the Court of Appeal—we will no doubt explore some of the issues relating to that judgment in due course. The changes have had a positive operational impact, with the accelerated deportation of hundreds of foreign criminals, which is why one of this Government’s manifesto commitments was to remove the limitation that the power can be used only for those subject to deportation—mainly criminals—so that all individuals who have sought but been refused a right to remain in the UK on human rights grounds can be removed more swiftly. Clause 31 delivers on that commitment. It is our policy to ensure more effective removals and to prevent people whose applications have been refused from remaining in the UK and potentially accruing article 8 rights after it has been decided that they have no right to be here.
The power to certify that an appeal must be brought from overseas when that would not breach human rights was introduced in the Immigration Act 2014 for persons liable to deportation—largely foreign national offenders, as I suggested a moment ago. Subsections (2), (3) and (6) of clause 31 extend the scope of the existing power to all human rights claims. Importantly, the power will not apply to asylum claims, meaning that all asylum appeals, except those that are clearly unfounded, will continue to be heard in the UK. The certification power cannot be used in cases when removal pending appeal would create a real risk of serious, irreversible harm or other breach of human rights, such as when there is a claim under article 2, the right to life, or article 3, freedom from torture and inhuman or degrading treatment. We are largely dealing here with cases that relate to article 8 and to a person’s family or private life. I emphasise that each case will of course be assessed on an individual basis, taking into account the impact of certification on family members, including children.
The power will not normally apply to unaccompanied children. Many unaccompanied children make asylum claims anyway, so this power is irrelevant to them. When an asylum claim is refused, a child will be granted leave until they are 18 years of age, unless adequate reception arrangements are in place for their return to their home country. When a child has been in the UK for seven or more years, they can be granted leave to remain on the basis of their private life rights when it would not be reasonable to expect them to leave the UK.
Paul Blomfield (Sheffield Central) (Lab)
The Solicitor General is at pains to point out that the power would not normally be used on children, so I guess that he has taken account of the evidence that we received from the Children’s Society and others expressing such concerns. Why have the power at all if it is not intended to be used?
The Solicitor General
It is envisaged that the power could be used on certain occasions in the case of a much older child or young person. Particular circumstances could allow, on a case-by-case basis, a particular resolution, but it is envisaged that in the vast majority of cases that would not apply and it would be exceptional if it did.
Paul Blomfield
Will the Solicitor General clarify that point? We are straying into the territory of our previous debate, on how to define age. He said “much older”. What does he consider to be much older? Where does that threshold kick in?
The Solicitor General
We are talking about the 18-month period between 16 and a half to 18 years of age. That is the period we are dealing with. I have already made the point about age in previous debates, but I will develop the point I was making just now. For example, if a 17-year-old who lives in the UK with members of their wider family has made a human rights claim to stay that has then been refused, and if they have parents or family in another country to whom they can return and successfully establish their life there, these provisions might apply. To develop the general point about the interests of children, the welfare of children will continue to be a primary consideration in decisions by virtue of statute under section 55 of the Borders, Citizenship and Immigration Act 2009, so each case will be assessed depending on individual circumstances.
Keir Starmer (Holborn and St Pancras) (Lab)
The Solicitor General is dealing with a very important point and reassuring us that an assessment will be made, particularly when it involves children, but how precise will that assessment exercise be? How will the detailed circumstances be ascertained and what is the remedy if it is thought that a wrongful decision has been made?
The Solicitor General
The hon. and learned Gentleman has hit upon the more general point about successful appeals. It is wrong to assume that the reason for the number of successful challenges to Home Office decisions lies fairly and squarely at the door of the Home Office and any failures that it might exercise in using its discretion. We have due process, and he will of course be aware that when an applicant makes an application, they should do everything they can to provide the fullest evidence and information about their situation at the earliest opportunity. I would think that evidence about the welfare needs of children would be at the forefront of any applicant’s mind, or the minds of those who are instructed to represent them. It is therefore vital—this is a good opportunity for me to put this on the record—that everybody involved in such proceedings understands that early reliance on comprehensive evidence is essential if we are to avoid the issues that the hon. and learned Gentleman rightly raises.
On the handling of children’s cases, revised guidance has now been published following the recent Court of Appeal judgment, which we are well aware of, and is now available on the gov.uk website.
Keir Starmer
It may be my fault for not expressing myself clearly enough, but in relation to the assessment of the impact on a child who is required to appeal from abroad—which is a different assessment from the ordinary assessment of an impact on a child—how is that to be conducted? What is the guidance? For example, does the guidance say more than six months for a child under 10? Is separation from a parent acceptable or unacceptable? What is the guidance for the decision maker if they are presented with two children under 10 and a possible separation of six to 12 months? Are they told that that is okay or not okay?
The Solicitor General
The hon. and learned Gentleman has asked a specific question about the wording of the guidance. I am at a slight disadvantage because I do not have it to hand. It might be that I can get a response to him about that. However, guidance that goes into huge prescriptive detail on time limits or time indications is not really guidance. Guidance must give decision makers discretion and allow them to look individually on a case-by-case basis.
The Solicitor General
I will finish this point, then the hon. and learned Gentleman can by all means intervene again.
I want to give the Committee an example about individual circumstances. An example of where the welfare of a child might make a case unsuitable for certification by the Secretary of State is if the individual whose article 8 claim has been refused is acting as the primary carer for a child, even temporarily—for example, if the child’s parents had separated and the parent who is normally the primary carer is unavailable to take care of the child temporarily and the other parent is caring for the child while their appeal is being determined. In that example, welfare issues clearly come into play.
In each case, individuals will be asked to provide any reasons why the power should not be applied in their circumstances, which will be fully considered. Of course, they will be able to challenge the decision to certify; we must not overlook that important point. The decision to certify is an administrative decision that can be challenged by judicial review.
Keir Starmer
I want to probe the question of guidance. The Solicitor General’s example is of a primary carer. Unsurprisingly, it is not thought a good idea to certify in those circumstances—that case makes itself. The Children’s Commissioner published a report about a month ago about the impact of different rules, including the rules about the income requirement that must be met before a spouse can join a family, which focused on the impact on the child of not having access to one parent for months, and sometimes years. Has the Solicitor General or the Department taken those findings into account? They seem to be pertinent here, given the impact on a child of not having contact with one parent for a prolonged period.
The Solicitor General
The hon. and learned Gentleman makes a powerful point, but those sorts of considerations can be taken into account by the decision maker.
I now have to hand the guidance on the Nationality, Immigration and Asylum Act 2002 issued by the Home Office. The latest version is dated 30 October, so it is fresh off the printing press. The section 55 duty is described in paragraphs 3.6 to 3.8 inclusive, which I will read for the record:
“When considering whether to certify a human rights claim pursuant to section 94B, the best interests of any child under the age of 18 whom the available information suggests may be affected by the deportation decision must be a primary consideration.”
That is a very helpful start.
“Case owners must carefully consider all available information and evidence to determine whether or not it is in the child’s best interests for the person liable to deportation to be able to appeal from the UK. This is particularly relevant in considering whether deportation pending appeal would cause serious irreversible harm to the child. The case owner must also consider whether those interests are outweighed by the reasons in favour of certification in the individual case, including the public interest in effecting deportation quickly and efficiently.”
That is the balancing exercise in a nutshell.
Paragraph 3.7 might help the hon. and learned Gentleman:
“Case owners must carefully assess the quality of any evidence provided in relation to a child’s best interests. Original, documentary evidence from official or independent sources will be given more weight in the decision-making process than unsubstantiated assertions about a child’s best interests or copies of documents.”
Paragraph 3.8 states:
“For further guidance in relation to the section 55 duty, see…Section 55”.
It also contains links to an introduction to children and family cases and to criminality guidance for article 8 ECHR cases. I think that is a helpful encapsulation of the balancing exercise that decision makers have to carry out.
Keir Starmer
I want to explore that guidance. For clarity, if the assessment states that there will be serious harm to the child, but it would not be irreversible, that suggests that the decision maker would go ahead with the decision and certify. Is it right that the harm has to be serious and irreversible?
The Solicitor General
The hon. and learned Gentleman is right to read the words in that way. We do not have the words “and” or “or”—we are back to “and” or “or”. He and I like these arguments because they are important; we do not indulge in them for the sake of semantics. However, what I am referring to is guidance, so it takes a different form from primary legislation or secondary legislation. It allows decision makers to get clear in their minds what the balance should be. There is a public interest in swift and efficient deportation. The party that the hon. and learned Gentleman represents had no issue with the principle when it introduced this power or when it was extended in the 2014 Act, so that principle is something on which he and I can agree.
Keir Starmer
I am grateful to the Solicitor General for setting out the provisions of clause 31 in detail. The clause is a wide extension of the powers that I accept already exist in relation to a limited class of individuals and will now cover very many people who are appealing their cases. I urge the Government to consider the impact, particularly on children, of separation in these and similar circumstances.
I have already mentioned the report by the Children’s Commissioner. I appreciate that the context is slightly different in that usually in those cases the spouse is already abroad, but the report gives powerful testimony about the impact on children of being unable to have any meaningful contact with one of their parents for a prolonged period. I do not think that has been assessed and taken into account in the guidance that has just been mentioned, because the timing probably would not have allowed that, but such separation should be considered and taken into account, and there should be a proper impact assessment of the existing remove first, appeal afterwards provisions.
We can dance around article 8, and we can argue as lawyers about whether or not that article has been breached, but among the most powerful points in the Children’s Commissioner’s report of a month ago were the human stories of the impact of suddenly depriving a child of one of their parents for a prolonged period. The report contained stories of children who were highly distressed because their father or mother was no longer available to them for contact for a prolonged period. Some of those families came to the launch and gave their evidence.
Sometimes we need to step out of these Committees and step out of our lawyerly, political selves. I am the father of a four-year-old and a seven-year-old. I heard those families describing what it was like trying to get their children to bed—the crying and distress during month after month of separation. In some cases it may well be that article 8 is breached and in some it may not be, but that is highly distressing for the children, and as a father I found it highly distressing to hear their testimony. I thought about what I would feel if I were separated from my children, whom happily I see nearly every day, for just a week or two. We should not lose sight of the idea of being separated for six months or a year because it does not tick the box of crossing a threshold into article 8, or any other legal provision. This measure will have a profound impact on human lives, and we need to approach this debate with that in mind.
The Solicitor General kindly gave us the statistic of a 42% success rate for appeals, which he puts forward as evidence that there is no obvious detriment in appeal after removal, but let us start by focusing on that figure: 42% of those removed won their appeal. So 42% of the families—if a family is involved—who suffered the human distress that I have described, whether or not there was a breach of the law, succeeded on appeal. That is an alarmingly high success rate in those circumstances.
The Solicitor General
The hon. and learned Gentleman is making a proper point about that, but we must be careful not to fall into the trap of assuming that that success rate is always due to failure by the Home Office. It is not. Very often it is due to the applicant’s failure to provide evidence that clearly would have helped in a timely way. It is not fair to keep beating the Home Office over the head for the failures of others.
Keir Starmer
I recognise some of what the hon. Gentleman has said. As he indicated, where that is a problem, it is for the professional bodies to regulate better or follow up in individual cases, and nothing that I say should stand in the way of that, but I do not want to step outside the human aspect. Ultimately, in cases where that is an issue, it is the individual who is removed who suffers as a result; if children are involved, it is the children who suffer. If an appeal is successful because bad advice was given months or years earlier and something relevant was not put before the decision maker or court, but it has come to light and been put before an appeal court, the impact on the individual who is not at fault should not be lost.
That is one difficulty with the proposed scheme for removing individuals. However, I recognise some of the picture that the hon. Gentleman has painted, and I agree that where professional follow-up can take place, it should as it would help in such cases. It is, however, also a fact that many appeals take a long time. If decision making were of a higher quality and decisions were quicker, a lot of the concern would evaporate, and we would not be debating the need for deport first, appeal later provisions.
I come to the practicability of appealing from abroad. We are familiar with the notion of a hearing in this jurisdiction. In some ways, a hearing is not dissimilar to the exchanges we have across this Committee Room, where physical human beings make submissions and listen to what is said against those submissions. Here, we have you, Mr Owen; in court, we would have a judge. That judge listens to the exchanges, takes into account the evidence and comes to a decision. Anybody who has ever been in any court of any form will know that many cases are determined through those exchanges, with the decision maker making their mind up as the process unfolds. Attention can be drawn to a particular piece of evidence, a point can be rebutted and additional evidence can swiftly be put before the court or the tribunal, if it is necessary to do so. If a judge has questions, they can be dealt with there and then by the parties.
That is how we have been doing things for 200 years —certainly in the criminal context—and it is a highly effective way of resolving differences between the parties. It is a very different experience if someone is appealing from abroad. In the first place, their submissions will probably be made in electronic or hard, written form way before the hearing. There is no prospect of the sorts of exchanges that get to the truth or resolve the critical issues between the parties. Until recently, it has been possible for some individuals to have representation in the proceedings, notwithstanding the fact that they are abroad. I have a question for the Solicitor General: if the proposed residence test for legal aid comes into force, will that effectively mean that, for this large, extended category of individuals, the prospect of any representation is gone once they are removed, unless they have private money? That is a serious consideration. That proposal would fundamentally change how the scheme operates, when taken with the proposed change before us.
The Solicitor General
I can assist the hon. and learned Gentleman there. The position on legal aid is not altered by an individual having to appeal from overseas. Legal aid is not available for article 8 appeals before the tribunal, regardless of whether the appeal is lodged from overseas or within the UK. I hear the point he makes, but the issue he raises is immaterial to the question of legal aid. He also asked about residence, and I will see whether I can get a specific response on that.
Keir Starmer
I am grateful. I realise that may not be easy, so if the Solicitor General writes to me or the Committee, I will be grateful. The question was: what impact, if any, will the proposed resident test for legal aid have on those exercising their right to appeal from abroad? I would be happy to receive the answer by way of a letter.
There is, however, a more fundamental point here. There is a very real difference between a hearing at which the individuals are present and able to deliberate and to make submissions in the way I indicated, and one where the individuals are abroad. So my next question is: what practical steps will be taken to ensure that the procedure is as effective as it can be? To break that down: what steps are being taken to ensure that evidence can be made available by way of video, using the technologies available? As I understand it—the Solicitor General will correct me if I am wrong—an individual’s ability to use technical means to appear virtually, as it were, in the courtroom depends on the courtroom being set up to receive such evidence, and not many are. It is for the individual to finance that from wherever they have been removed to and I do not think that the procedural rules for such proceedings have been amended sufficiently to allow that to happen with any great ease or regularity.
Accepting those very real differences between a live appeal and an appeal from abroad, what steps are being taken to ensure the best possible access and ability to participate by those who have been removed? That would include steps to ensure that there is an exchange of submissions, rather than just a set of submissions that are put in in the first place. In other words, how does the appellant abroad deal with the points that the tribunal wants to make as the tribunal begins to make up its mind?
Paul Blomfield
My hon. Friend makes an important point. We are talking about young people who have been through, in many cases, deeply disturbing experiences, and it is not surprising that they might not know their age. They have come from countries such as Sudan, which was one of the countries mentioned in the Home Office statistics that I referred to a moment ago. The Children’s Society states that the provisions in the Bill
“would mean that more children and young people would not be able to appeal their claim in the UK”.
It makes the point:
“Without a multi-agency best interests determination process currently in place to assess the full impact on welfare, children could be returned to countries and circumstances where they may be at risk of serious harm including sexual abuse, neglect, homelessness, violence, forced marriage”
or
“forced recruitment as child soldiers”.
We are talking about very serious circumstances, and I urge the Government to give those points the attention that they deserve.
The Solicitor General
I am extremely grateful to all hon. Members for having made the debate a considered and wide-ranging one, which is what the topic deserves. First, I say to all hon. Members who—I make no criticism—pray in aid the human element that of course they are right. We all stand here as human beings and some of us, including me, as parents. It would take a heart of stone not to recognise that, in the myriad different cases, we are dealing with people and their lives.
That is why the role of decision makers, and the discretion that they have, is so important in assessing the evidence and coming to a reasonable conclusion. We call that due process. It is something that we treasure as part of our rule of law, and it is something of which we are rightly proud. I do not believe that our proposal does anything to undermine those important principles, and I will explain why. I will not repeat everything that has been said, but I will encapsulate it in the following way. The Court of Appeal has looked at the concept of out-of-country appeals and reminded us of our duties under the European convention, and I am satisfied that the procedures that will be used will guarantee the basic and fundamental rights of fairness and due process that we are so proud of.
The hon. Member for Rotherham said that she was not a lawyer. I think we are all lawyers in this place. This is the High Court of Parliament, and we are the law makers, so she is a lawyer and I am glad to welcome her into the fold. As somebody with whom I have worked well in the past on other Bills, I know that she comes to this with an entirely appropriate frame of mind and a genuine passion for doing the right thing not only by her constituents, but by people who are either affected directly by the legislation or part of our wider community, who want to see our enforcement system working well. There is a huge public interest, which we must not forget when we deal with these matters.
Mrs Emma Lewell-Buck (South Shields) (Lab)
Sorry for backtracking, but I am a little confused by the Minister’s reference to judicial review. Many families will not have the money to pay for such reviews, so who would fund them?
The Solicitor General
I am grateful to the hon. Lady. I will get full clarification about the funding of applications in a moment and will come back to her.
If I may develop my point about the quality of decision making, several improvements have been made since 2010 in order to simplify policy and guidance. The introduction of a number of quality audit processes allows for the ongoing refinement of operating processes, which strengthens and enhances decision-making quality. The accumulation of those measures means that we now have tools and processes that help caseworkers to make more efficient, effective and fairer decisions in line with the relevant immigration rules and Home Office policy and guidance. I accept that there is still a way to go, but progress is being made.
Since 2010, UK Visas and Immigration has put in place measures to ensure the continuous review of its operations, so that proper feedback mechanisms can further improve quality and we ensure we make the right decision first time as often as possible. For example, UKVI has placed a focus on decision quality at the centre of caseworking objectives, introducing a quality objective in all caseworker objectives within performance appraisals. When it comes to ranking performance, the marking of quality assessment is an essential part of that process. Such measures are being put front and centre, which helps to answer the genuine queries and concerns of constituents, including mine.
The hon. Member for Paisley and Renfrewshire North alluded to that. I am grateful to him for asking a number of parliamentary questions—in recent hours—about statistics that he regards as important indicators of the success or otherwise of measures that have been introduced in recent years. I note that some of the questions refer both to the power relating to EEA nationals and to section 94B. I am not making a criticism, but he asks a comprehensive range of questions, and we are today purely dealing with section 94B and not EEA nationals. Replies will be provided as soon as possible, but we must take care in reading across data from foreign national offender cases to all human rights cases. I think he would accept that. The case law clearly states that public interest is stronger when it comes to criminal cases, although there is of course a clear and strong public interest in the removal of any individual who has no right to be in the UK. I promise him that he will get answers to his questions.
The hon. Gentleman made the point about the best interests of children, which he wants in the Bill. May I give him some comfort? We already have primary legislation—section 55 of the Borders, Citizenship and Immigration Act 2009—that puts children’s best interests into print and are the guiding principles for decision makers when it comes to cases involving children. That is a sufficient safeguard, together with the guidance that we have debated and discussed, which will address the legitimate issues that he raises.
The hon. Gentleman asked about the difficulty of appealing from abroad. I accept, as did the Court of Appeal, that an out-of-country appeal will be, in many cases, less advantageous to an appellant than an in-country appeal. As I have said before, article 8 does not require the appellant to have access to the best possible appellate procedure or even to the most advantageous one. It requires access to a procedure that meets the essential requirements of effectiveness and fairness. I pray in aid the statistics that the Court used and that I mentioned this morning to give Members reassurance that we are in a situation in which there is not an obvious and clear detriment to appellants, bearing in mind the entry clearance statistics, which always involve out-of-UK appeals.
Paul Blomfield
I want to seek to confirm what seemed to be an extraordinary acknowledgment from the Solicitor General that out-of-country appeals would be prejudicial to the opportunity for an appellant to make as good a case as if it were in this country. That is a fairly significant step to take, as we said in relation to people who are likely in the long term to be successful, who have committed no crime and have proper rights. So is he acknowledging that this is prejudicial to their interests?
The Solicitor General
The words I used are the words of the Court of Appeal—not as advantageous—but that does not mean prejudicial. The points that the hon. Gentleman raises are a summary of the points raised by the hon. and learned Member for Holborn and St Pancras about the process itself, which I will try to help with in due course, but there is a difference. If the Court had come to the conclusion that there was a clear gap—an injustice gap—for individuals, I am sure the decision of the Court of Appeal would not have supported the submissions made by Lord Keen, the Advocate General.
On the point raised by the hon. Member for South Shields, I will write to her and set out the position in full. The point made by the hon. Member for Paisley and Renfrewshire North about going further and using the statute to exclude children from the scope of the power is, with respect, an unnecessary step to take for the reasons that I hope I have clearly outlined about the necessary protection that children enjoy under section 55 and the guidance. I do not think that going a stage further would serve any particular purpose, however well intentioned.
The hon. and learned Member for Holborn and St Pancras raised important points. I want to try to do justice to them in turn. First, I will deal with the issue he raised about the important report by the Children’s Commissioner. I remind the Committee that the power does not represent a blanket approach. It allows caseworkers to individually consider the impact on individual children—that human element that he prayed in aid so powerfully—and the range of possible effects that a decision to certify might have.
Keir Starmer
I wonder whether that is right. As I understand it, decision makers take into account whether there is serious and irreversible harm, not the distress and anxiety that I was talking about. The Children’s Commissioner’s report gives examples of children wetting the bed, being highly distressed for weeks on end, and so on, which may not reach the test of serious and irreversible harm—I do not know. People will argue differently about that, but it is highly distressing, and it is highly distressing to hear about it. Distress will probably be taken into account, but it certainly will not enable the decision makers lawfully to determine against certification.
The Solicitor General
I caution the hon. and learned Gentleman against using the term “test” about serious, irreversible harm. We must not forget that the overall test is the article 8 test. We are talking about the guidance. Of course, there will be input from the family, and there might be input from the school and social workers. Those people are best placed to provide evidence about what the impact will be.
It is a reality in our society that many parents and children have to live separately temporarily. Many parents work away—many in this room are in that position—and many are on active service and have to spend long periods of six months or more away from their children. I do not minimise—I really do not, from my own experience—how that affects the family dynamic and the effect that that has on children, but we have to be careful not to single out that category of individuals and say their experiences are sui generis, unique or wholly different from those of other families in those circumstances.
Family separation is sometimes in the best interests of the children. I can think of examples—although not involving examinations, because they take place when children are older—involving children who need a stable term in school, perhaps because they have particular special needs. We should be proud that our country leads the world in special needs provision. I can think of examples involving children who can be supported more effectively in special needs education in the UK. I hope that gives at least some insight into the Government’s thinking on the nuances that will appear in the cases.
The hon. and learned Gentleman made a point about the process itself. He said he is concerned about the fact that the process and procedure of out-of-country appeals are different from that of the hearings that he and I are familiar with. Technology is increasingly used in our courtrooms and, as he knows, the use of virtual technology is often in the best interests of children and vulnerable witnesses, in particular. We are exhorted, and indeed mandated, through statute and practice direction to use such mechanisms increasingly to move away from the effects that what I would call traditional court proceedings can have on individuals. His point is important, but I want to put it in context.
Keir Starmer
I do not want to be misunderstood. I championed the use of digital working in our courts. There was a very good pilot in a Birmingham court for criminal cases. However, it took a lot of resource and very good modern technology to make virtual hearings as close as humanly possible to actual hearings. Is the Solicitor General able to say whether steps will be taken for similar arrangements in these cases?
The Solicitor General
I am able to give the hon. and learned Gentleman this assurance. If a person appealing from overseas submits that oral evidence is needed, an application can be made to the tribunal for evidence to be given via video link, Skype or telephone. Of course, we have specialist immigration judges who are best placed to make an informed decision about whether the quality of the evidence will be enhanced if it is given in that way. That is similar to the tests that are applied up and down the country every day, increasingly as a matter of course, when it comes to the use of TV links, for example.
Immigration Bill (Tenth sitting)
Robert Buckland Excerpts(9 years, 2 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Keir Starmer
I had the opportunity when we were discussing clause 18, which inevitably included a discussion of schedule 3, to speak to the amendments. I hope the Minister heard my concerns. I do not think I will make them any stronger by repeating them.
The Solicitor General (Robert Buckland)
I am grateful to the hon. and learned Gentleman for his observations. We believe amendments 93 and 94 are unnecessary and would create a disproportionately expensive bureaucracy around the provisions. The Home Office will only share the details of migrants who are liable for removal or deportation from the UK, such as those who have exhausted all appeal rights. Those will include people who have been served with a deportation order or enforcement papers or who have absconded from immigration control. They will be fully aware of the reasons why they are considered to be disqualified people. Those who are refused permission to stay will be warned in the Home Office decision letter of the practical consequences, including for their continued ability to operate a bank account in the UK. To require the Home Office separately to actively provide them with such information in every case where their data are shared would cause delay and waste resources. Details of the individuals are already shared with the anti-fraud organisation CIFAS for the purpose of enabling banks to comply with the Immigration Act 2014 and also to assist in the prevention of fraud. The accuracy of the data is subject to rigorous checks by the Home Office before it is shared. This is reflected in the fact that the Home Office receives very few complaints or inquiries from banks or individuals regarding the current sharing of data arrangements under section 40 of the 2014 Act. Only three official complaints have been received since the Home Office started to share data with CIFAS in 2011.
Under the new provisions, the Home Office will be notified by banks when they believe that an account holder is a disqualified person. It will then carry out a further thorough check before the bank will be required to take any action to close an account. The bank will be notified if circumstances have changed and the person is no longer disqualified. This double check will act as a further safeguard to make sure that the bank acts on the most up-to-date information. Individuals whose accounts are subject to closure will be told by the bank of the reason why, provided that it is lawful to do so. If, despite all the checks, a person still considers they are lawfully present and that incorrect information has been provided, they will then be given the information they need to swiftly contact the Home Office so that any error can be rectified.
As is currently the case with data provided to CIFAS, the Home Office will be able to correct any mistake in real time so that the person’s details will immediately be removed from the data that are shared with the banks. That will be a far swifter and more effective means of correcting any error than in the process proposed in the amendment. If an account is closed, any credit balance will not be withheld from the individual, but returned to them by the bank in the normal way. In the unlikely event that an account is closed by mistake, the situation can be swiftly rectified in the way I have described without the serious consequences for the individual that have understandably been envisaged by the hon. and learned Gentleman. We believe the proposed compensation would therefore be disproportionate in the circumstances, and I invite him to withdraw the amendment.
Keir Starmer
I am grateful to the Solicitor General for his explanation and reassurance as to how it is intended the scheme will work. Would he be good enough to write to me or to the Committee, setting that out, since it is not in the Bill?
The Solicitor General
I am happy to write to the hon. and learned Gentleman. That is now on the record.
The Solicitor General
I am grateful to all the hon. Members who took part in this useful debate, which has helped to tease out some of the important issues that underline the extension of powers in this part of the Bill. I am sure that will be a common theme in our debates on subsequent amendments.
I will make it clear at the outset that while it is interesting to hear analogies between the new power and stop-and-search, this is not a stop-and-search power; it is a different type of power. It is important to draw that distinction, because while it is important to talk about tensions in communities and to understand the reality of the circumstances in which immigration officials operate, it would be wrong to hurtle helter-skelter down that route without analysing precisely what we are talking about.
We are talking about a power to ask questions of an individual that has to be based on a reasonable suspicion. It is therefore not a speculative fishing exercise and it should never be based on the random prejudice of what someone looks like. Immigration officers must comply with their duties under the Equality Act 2010. Stopping and examining individuals by means of racial profiling is not in accordance with their public sector equality duty pursuant to section 149 of the Act. They are bound, like any other public body, to stay within the law.
Paul Blomfield
As I say, we are both concerned that we get this right. Are we not playing with semantics when we say that this is not stop-and-search? We could call it stop and check, but does it not have all the characteristics of stop-and-search? Is the Solicitor General satisfied with the definition of “reasonable suspicion” in chapter 31 of the enforcement instructions and guidance, which I cited? Does it not give enormous latitude?
The Solicitor General
Importantly, we have to remember that we are dealing with powers that relate to a potential civil consequence as opposed to a criminal one. Therefore, it is important to draw a distinction between the stop-and-search powers and this particular competence. There will be joint crime reduction operations—commonly known as CROPs, another unfortunate acronym, for which I apologise—where, for example, somebody is stopped on the underground for fare evasion and is then referred to immigration officers. That is intelligence-led enforcement. It is not about the sort of random checks that the hon. Member for Sheffield Central illustrated very eloquently and with proper concern—a concern that I share. I do not want that sort of culture to be spread through the use of these powers. As a result of duties under the Equality Act and due to of the importance of community impact assessments made before operations, which have to be signed off by a senior official in the rank of assistant director, some of the practical safeguards are in place to deal with the sort of mischief and problems that he and other hon. Members have identified.
I am grateful to the hon. Member for Paisley and Renfrewshire North for raising the Singh v. Hammond case. It is important to note that that judgment of 1987—it is now nearly 30 years old—says:
“An examination…can properly be conducted by an immigration officer away from the place of entry and on a later date after the person has already entered…if the immigration officer has some information in his possession which causes him to enquire whether the person being examined is a British citizen and, if not…whether he should be given leave and on what conditions.”
There we have it—the basis of action.
Paul Blomfield
I anticipated that the Solicitor General might cite that case, which is the basis for the extension of powers. In reaching a view on that, the Court of Appeal said that
“the case does turn very much on its own facts”.
That case involved an immigration amnesty and an immigration officer’s specific and defined suspicion of identity deception. It was very narrowly drawn by the Court of Appeal and does not give a legitimate basis for the much wider use subsequently.
The Solicitor General
The hon. Gentleman’s interpretation is interesting. I am sure it would be an attractive submission to make were the issue to be revisited, particularly in litigation. It is nearly 30 years since that case. Since then, the Home Office has relied on it. There has been no attempt by a Government of any colour to redefine things and go back to what he would describe as the original 1971 position. There must be a very good public policy reason for that; that reason is simply that it is entirely reasonable to allow the immigration authorities to have a little more time and space, based upon a reasonable suspicion, in which they can question a person who they reasonably suspect might be an illegal immigrant. The published guidance reflects the Singh v. Hammond judgment. It makes it clear that before any inquiry begins, there has to be reasonable suspicion.
My concern is that if the power of examination is limited only to the point of entry, we could have—perversely—an increase in people being arrested, because the power to ask questions is, as I said, not a power of arrest, but a different type of power. It allows people to give a reasonable explanation before we get to the stage of any apprehension or arrest, which I think is a good thing. I would not want to see a perverse situation where, in effect, the immigration authorities are shooting first and asking questions afterwards. I am sure that the hon. Gentleman would agree that that sort of approach would definitely inflame the situation and lead to the perverse consequences that we all worry about.
Keir Starmer
I have listened very carefully to the Minister’s explanation and justification. It must follow that operations at tube stations or other places against a number of individuals, based perhaps on what they look like, would be outwith the guidance and outwith the Minister’s explanation and role.
The Solicitor General
I entirely agree. If their operations relate to other intelligence—for example, on organised fare dodging or some sort of illegal activity on the tube that was either antisocial or worse—then clearly, that joint working would be very important and would reflect the best intelligence-led operations. We are all keen to eliminate a random use of these powers that would be arbitrary and would not, in my judgment—and I am sure, in any reasonable person’s judgment—reflect the criteria set out in the Singh case and reflected in guidance ever since.
Sarah Champion
Opposition Members have real concerns about community cohesion and racial profiling, and it sounds as if the Minister too is concerned that the powers should not be used inappropriately. I appreciate what he said in relation to my hon. and learned Friend and the guidance notes. Would the Minister therefore commit to conducting a review to make sure that these powers are not overused, and that our concerns are just concerns and not reality?
The Solicitor General
I fully expect that any revised guidance notes published to reflect any changes passed in this Act will be a faithful reflection of the case law as we have outlined it today. I am absolutely sure that my colleagues in the Home Office will keep these matters under continuous review. If, indeed, a body of evidence emerges that challenges the position I have outlined today, I am sure that colleagues would look at that. It would perhaps be wrong of me to commit to anything specific today, but the hon. Lady has placed her concerns on the record for all to hear, and I am sure that the observations that we have made in this debate will be heard in another place and at other stages before the Bill, as we hope, eventually becomes law.
The final point I want to make is that I do not think that anybody wants to see the lawful and proportionate operations of our immigration authorities severely hampered. My genuine fear is that however well intentioned this amendment might be, it would lead to a hampering of those operations. Therefore, for those reasons, I urge Opposition Members to withdraw the amendment.
Keir Starmer
I am grateful to hon. Members for setting the context within which the powers that now exist operate and to the Solicitor General for his explanation. I accept that technically, in a number of legal respects, there is a difference between stop-and-check and stop-and-search, but I am not convinced that the impact on community relations follows from what are legal distinctions. In other words, I am not sure that the public out there quite accept and understand the nuances that we in this Committee might understand as the differences between the two, and there are real concerns about the way in which the existing power is being exercised. In the end, this comes back to the words that the Solicitor General used, which I jotted down. He said that it makes sense to have a little more time and space, and that that would avoid action possibly being taken on arrival that need not be taken. That is true in the sense that this is supposed to be a power that is excisable on arrival, but it very quickly moves from a little more space to a generalised power that has been exercised in the way that has been described. On that basis, I do not withdraw this amendment.
The Solicitor General
We have already dealt with some of the important provisions of clause 19, so I will try to be as brief as I can. In essence, clause 19 will amend schedule 2 to the Immigration Act 1971 to provide clear powers for immigration officers—when, for example, they are examining a person to see whether their leave should be curtailed—to search premises for evidence of such purposes. It would also update existing powers to seize documents to include those held in electronic form. As we know, immigration officers may examine a person to establish whether they require leave to be here in the UK and, where leave is required, whether they already have leave or if it should be given, including the period and conditions of leave. However, the current provisions are not explicit about establishing whether any existing leave should be cut short. Situations are encountered by immigration officers where it may be appropriate to curtail the migrant’s leave because that person was found to be working or claiming benefits illegally or, sadly, had obtained leave by deception. As a consequence, where leave is ended with immediate effect, that person becomes liable to removal.
If the House consents, we will add a power for immigration officers, where they are already lawfully on premises, to search for and seize documents which may support a decision to curtail leave. This does not include documents which are subject to a legal professional privilege. Immigration officers already have powers to search for evidence of the offences of breaching conditions of leave or obtaining leave by deception, but this of course is only for evidence that would support a criminal prosecution. However, in the vast majority of cases where migrants fail to comply with immigration law or do not depart voluntarily, our strategy is to remove them from the United Kingdom rather than pursue costly prosecution and possible imprisonment for minor immigration offences. We believe that to be a proportionate approach which is in the public interest.
We therefore believe that it is more appropriate for immigration officers to have specific administrative search powers where they are exercising administrative rather than criminal powers, and we already have the framework in schedule 2 of the Immigration Act 1971. I have already mentioned the importance of updating powers so that legislation moves with the times, which is why we now include documents that might be stored on electronic media or devices.
Sarah Champion
I am sorry to labour this point. I hear what the Minister is saying, and I do not disagree with the argument that he is making. However, does the Minister really think that the Home Affairs team, the immigration team, have the resources to go in and do this work? In my constituency, when we have people who are waiting to be deported, there simply are not the officers who can go in and carry out the work. Surely the Minister should be looking at that.
The Solicitor General
I do not want to criticise the hon. Lady for repeating an important point but, as I have already said to her, it is vital to remember that these powers are going to be exercised in a proportionate way, based on genuine intelligence. They are not going to be exercised in a scattergun way that would demand a significant increase in resources. We are confident that the proposals and powers we propose to introduce will make it easier for immigration officers to take that action and remove some of the understandable practical obstacles that exist with administrative procedures such as this, which then end up with a civil consequence as opposed to a criminal consequence. In short, at the moment it is easier for immigration officers investigating a criminal offence to search and seize than it is when it comes to the more practical measure of enforcing the civil consequences of decisions made after due process. This is a harmonisation of powers, if you like—let us remind ourselves that this is not a new power of entry. It relates to a time when immigration officers are already lawfully on the premises. It is a reasonable and proportionate measure. I think that the concerns that the hon. Lady raises are therefore met by the increased flexibility that the authorities are now going to enjoy.
Keir Starmer
As I think the Minister accepts, powers of search and seizure in connection with the imposition of civil penalties are rare in our law. There are other examples, but they are rare. The usual circumstances are for search and seizure powers to be in connection with the imposition of criminal penalties. The question I want to put to the Minister is, what is the principle? I do not think that anybody would argue that it is sensible to move to a situation where all civil penalties give rise to a power of search and seizure and therefore there is a sub-class that may have these powers connected to it. What is the principle behind this clause and that sub-group of civil penalties that attracts the search and seizure powers?
The Solicitor General
Putting it as simply as I can, the principle is that we want to ensure that, rather than having to resort to the use of criminal sanction—which, although it might mark the commission of offences and impose a punishment and penalty on individuals, could properly be seen as a disproportionate use of state power—we can resort to what, as I have said, is perhaps a lesser used path but one that is still within what the hon. and learned Gentleman and I would regard the bounds of compatibility with the European convention on human rights and our existing law. It is a proportionate use of powers. I remind the Committee that this is not a power of entry. Immigration officers have to be lawfully on the premises before these powers can be used—and, of course, there have to be reasonable grounds to suspect that the person with regard to whom the powers are being used may be liable to be detained and removed from the United Kingdom. There is a caveat, too: the search should only be to the extent reasonably required to find the documents, so a complete top to tail, fingertip search of the house, which would be wholly disproportionate, would not be within the particular use of this power.
I will give another example. There is concern about seizure of mobile telephones. Yes, there is a power to seize, but any such device on which electronic documents are stored will be seized only if it is not possible for the owner otherwise to produce the document in a visible and legible form. Again, that is an example of the proportionality and the safeguards that exist in this particular instance. I hope that on the grounds of principle and particular efficacy I have outlined what I regard as a middle way, which these provisions represent.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Search of premises in connection with imposition of civil penalty
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clause 20 provides a power for immigration officers to search premises for documents that might help in determining whether a civil penalty should be imposed on an employer or landlord. This power may only be exercised where immigration officers are already lawfully on the premises. Immigration officers already have powers to search for evidence of the offence of employing illegal workers and will have them for the new offence of leasing premises to a disqualified person. However, it is often more appropriate, as with my previous remarks on clause 19, to impose a civil penalty rather than pursue a prosecution. Therefore, we believe it is fitting for immigration officers to have specific administrative search powers when they are exercising powers for a non-criminal purpose. For that reason I beg to move that clause 20 stand part of the Bill.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Clause 21
Seizure and retention in relation to offences
Question proposed, That the clause stand part of the Bill
The Solicitor General
Clause 21 provides a power for immigration officers to seize anything they may find in the course of exercising a function under the Immigration Acts while lawfully on the premises where they believe that it has been obtained in the consequence of committing a crime, or where it is evidence of an offence. They may do so only in order to prevent the item being concealed, lost, altered or destroyed and may retain it unless a photograph or copy is sufficient. Again, this is similar to the example of the mobile telephone seizure that I gave in the debate on clause 19.
Immigration officers sometimes encounter evidence of other crimes when they are searching premises using immigration powers. In such circumstances they will contact the police and, if necessary, wait for police to come in order to secure the evidence. In the meantime, the problem is that immigration officers have no specific powers to prevent other persons on the premises removing, altering or destroying the evidence before the police arrive. It makes sense that immigration officers who are trained in securing evidence should be able to seize it to ensure that this mischief does not happen.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Clause 22
Duty to pass on items seized under section 21
The Solicitor General
I beg to move amendment 95, in clause 22, page 27, line 36, after “If” insert “the immigration officer has reasonable grounds for believing that”
This amendment clarifies that where an immigration officer is not absolutely certain that an item which has been seized under clause 21 is also evidence of an immigration offence, the immigration officer still has discretion to retain it rather than being under a duty to pass it to another investigating authority.
Amendment 95 is a minor and technical amendment that clarifies that where an immigration officer is not absolutely certain that an item that he or she has seized under the power in clause 21 is also evidence of an immigration offence, they still retain a discretion to hold or retain it, rather than being under a duty to pass it to another investigating authority. This addresses the very fine line between some offences, where it may not be clear at the outset whether they are immigration offences or not. For example, immigration officers investigating facilitation of an illegal entry in breach of immigration law may encounter forged, counterfeit or improperly obtained passports but may not necessarily know without further investigation whether they are being used by the facilitator or are unconnected with this offence.
Sarah Champion
On a point of clarification, how long can an item be held? For example, if a student has their laptop taken, that will have a direct impact on them. Is there any form of compensation or support around that?
The Solicitor General
I am grateful to the hon. Lady. I am checking the subsection, but I do not think there is a specific timeframe. I will come back to her, if I may, once I have outlined the position regarding clause 22.
Amendment 95 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
The Solicitor General
The clause provides a duty for immigration officers to notify the relevant investigating authorities, normally the police or National Crime Agency, where they have seized anything under clause 21.
It also applies where immigration officers, working in criminal investigation teams, have seized anything using their powers in relation to specified crimes that are commonly encountered in the course of exercising a function under the Immigration Acts, such as bigamy, forgery and human trafficking.
It sets out the arrangements for: notifying the relevant authority of the items seized; whether or not the authority will accept the items; handing them over; or returning them if, for example, the relevant authority does not believe them to be evidence of an offence.
In response to the concerns of the hon. Member for Rotherham about length, as I thought, there is no specific timeframe. However, there is an expectation that the immigration authorities will act reasonably. There are obviously practical concerns about retention of items such as laptops by the authorities. I am sure that they would view it as being in their very strong interest either to return the item, if it discloses the commission of no offence, or to pass it on to the relevant authority, if it were connected with the commission of a criminal offence. Therefore, there is a strong utility argument that would prompt the immigration authorities to act more promptly rather than hold on to items in the way that she fears.
Sarah Champion
I should be grateful if the Solicitor General would issue a statement on that in the guidance notes. I know from the experience of my constituents who have had mobile phones taken that they just seem to disappear, and that seems almost as a punishment or intimidation rather than for a productive reason.
The Solicitor General
I am happy to reassure the hon. Lady in this way. The arrangements in clause 21 mirror the Police and Criminal Evidence Act 1984 arrangements, and that should reassure her at the very least that there is a framework. I accept that within that there will be occasions when individuals do end up waiting an inordinate time for items.
Of course, there are powers in relation to a criminal investigation under the Police (Property) Act 1897. Although I cannot give an undertaking, the points that the hon. Lady has put on the record are noted but I am satisfied that we have a framework mirroring PACE that acts as an exhortation to the authorities to act in a reasonable and prompt way. I am grateful to her for raising that point.
Question put and agreed to.
Clause 22, as amended, accordingly ordered to stand part of the Bill.
Clause 23
Retention of things seized under Part 3 of the Immigration Act 1971
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clause 23 inserts a new section 28ZI into the Immigration Act 1971 that provides for the retention of material seized by immigration officers for the purposes of a criminal investigation. This simply aligns the framework for the retention of anything seized by an immigration officer for a criminal purpose with that applying to police in England and Wales under the Police and Criminal Evidence Act 1984. That should be a welcome insertion that all Members will feel comfortable with, knowing that there is a harmonisation of the powers.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24
Search for nationality documents by detainee custody officers etc.
Keir Starmer
I beg to move amendment 197, in clause 24, page 30, leave out lines 13 to 16
To remove the power to conduct a strip search from detainee custody officers.
We now move to an area of considerable concern. The amendment would remove the power to conduct a strip search from detainee custody officers. The context in which the amendment is put forward is one of considerable concern for some time about the exercise of powers over those in immigration detention—a concern that I believe is shared across the House.
Clause 24 (1) provides:
“The Secretary of State may direct a detainee custody officer, prison officer or prisoner custody officer to exercise any of the powers in subsection (6) in relation to—
(a) a detained person who is detained in a removal centre, prison or young offender institution, or
(b) a person who is detained in a short-term holding facility.”
Subsection (5) provides that the relevant officer must then comply with the direction, with subsection (4) providing that the Secretary of State must have reasonable grounds to believe that,
“a relevant nationality document will be found if a power in subsection (6) is exercised in relation to the person.”
If we press on through the clause, we find a point that ties in with amendment 198—that the definition of nationality document is very wide. Under subsection (15) “nationality document” means,
“a document which might—
(a) establish a person’s identity, nationality or citizenship”.
A document that might establish a person’s identify is a very wide class of documents for all of us. Many documents might establish or help to establish our identity. This gives the Secretary of State a wide power to make a direction in relation to a wide class of documents where the relevant officer must then comply, and the power to include strip search in an environment and a context where there has already been heightened concern about the exercise of powers within immigration detention.
Those are the reasons why these amendments will be pursued. They are pursued with real concern about how the powers will be exercised, based on many points that have already been raised and the reports that have been written about this area.
The Chair
Before calling the Minister, I remind the Committee that we are considering amendment 197. We will consider amendment 198 separately.
The Solicitor General
I am grateful for that exhortation, Mr Owen. I will therefore resist eliding the two issues and specifically address amendment 197, which has prompted an extremely useful debate on strip searches. I am grateful to the hon. Members for Rotherham and for Glasgow North East for speaking clearly and making the right points about the need for the highest possible standards when using such a draconian power.
First, I offer reassurance to the hon. Member for Rotherham, who asked about the meaning of the guidance that a strip search may not be carried out in the presence of a person of the opposite sex. That includes the person conducting the search. That is absolutely essential, because any other scenario would be wholly wrong and insensitive.
Sarah Champion
It is incredibly reassuring to hear that, but will the Solicitor General put it in the Bill?
The Solicitor General
My understanding of what I prefer to call “full searches”—full non-intimate searches is probably the correct term—is that they are never done to a male by a female or to a female by a male. That has been the case for a considerable period, and probably ever since PACE. I might be wrong, but that is certainly my understanding from years of using the code of practice in my work as a criminal practitioner, prior to my entry into the House.
I want to deal with the question of what precisely we mean here. My hon. Friend the Member for North Dorset adumbrated the point that this is not about an intimate search. This is not a search of body orifices—for example, the mouth. It is what we would describe as a non-intimate search. More importantly, it is not the rather horrific image that might be created in our minds of someone completely unclothed being searched. That is not what happens. The individual must not at any stage be completely naked, so searches have to, in effect, take place with regard to each item of clothing in turn. Of course, that involves looking between the clothing and the skin, because experience sadly teaches us that important documents can often be concealed there, but at no time is the individual humiliated to the extent that they are left without any clothes on at all.
Paul Blomfield
I do not question for one moment the Government’s intention or the guidance, but does the Solicitor General accept that the context makes a big difference? For example, at Yarl’s Wood, which I know the Government have concerns about and are reviewing, allegations were made as recently as January this year by the charity, Women For Refugee Women, about the treatment of women. Until issues with practice on the ground in detention centres are adequately resolved, the best intentions in the world are at risk, are they not?
The Solicitor General
This is one of the most important functions that we as a Committee can perform: not having artificial debates but putting on the record the concerns, using the evidence we have as Members of Parliament or, indeed, from our observation of important events at places such as Yarl’s Wood, then seeking clarification from Ministers. I hope that my colleague the Minister for Immigration feels exactly the same way I do—that this is an opportunity for the Government to put on the line what we expect the standards to be when it comes to non-intimate full searches.
Keir Starmer
I am grateful for the Solicitor General’s explanation, and I understand exactly the case he puts for the power, but there is sometimes, as he will understand, a gap between the words that go into Hansard as a result of this exchange and what happens on the ground. That is the real cause for concern, particularly in the light of the Yarl’s Wood example. What practical steps can be taken to turn the assurances the Solicitor General is rightly giving into reality on the ground?
The Solicitor General
We are going to provide additional guidance on the power to search under clause 24. That is for those who are directing the search on behalf of the Secretary of State and those who are conducting the search. Detainee custody officers, prison officers and prisoner custody officers are trained in the use of search powers, which includes strip searches. Detention services order 9/2012 provides instructions to detainee custody officers, and prison service instructions 67/2011 and 16/2014 provide instructions for searching persons in prisons and young offenders institutions respectively. We will build on those and ensure that the new provisions contain clear guidance.
The hon. Member for Rotherham made a point about the wording, “in the presence of”. We would say that the words are clear: it obviously means the person conducting the search as well. I hope that the explanation that I give as the Minister presenting the clause will be sufficient clarification to allay her fears on that point.
Sarah Champion
I thank the Minister for that clarification, and now that he has specifically put that on record, I am comfortable with that. I know that the Minister is always honourable in his intentions. Could I ask him to answer my point about youth offenders? At what age does he think it acceptable for young people and children to go through this search?
The Solicitor General
I was coming on to that very point. The power to search children in this way will only be used in exceptional circumstances. Let me explain the background. The Government’s policy is not to detain children in immigration and removal centres, so as part of the family removal process where children are held in a short-term holding facility a few days prior to removal, we believe that this search power will not be necessary because we will have the travel documents in place already.
Regarding young offender institutions, children under the age of 18 are exempt from the automatic deportation provisions for foreign national criminals, so one ground is already removed. Let me give me an example of exceptional circumstances. A 17-year-old male might be held in a young offender institution following a conviction of rape. He is facing deportation on conducive grounds because of this sentence and gang affiliations. If the Secretary of State has reasonable grounds to believe that he may have nationality documents in his possession, then it may be necessary for officers to conduct a full search in the way that we have described. I hope that gives the hon. Lady reassurance that we really are talking about exceptional circumstances, such as an older male who has perhaps been convicted of a very serious offence, where there is a clear public interest in making sure that all reasonable steps are taken before removal from the UK.
Keir Starmer
The example that the Solicitor General gives is a 17-year-old male. What does he see as the limits on children under the age of 17? At what age does it become inappropriate to ever exercise this power? I know that is a difficult question in general but this is a sensitive area. A 17-year-old male is one thing—he has given a good example, but there are clearly other examples of concern. What are the limits as the age goes down?
The Solicitor General
The only answer I can give is that it will depend on a thorough case-by-case analysis. For example, it might be somebody younger who is a persistent offender who has committed a very serious offence. It would be wrong to say that there would be a hard and fast threshold, other than one that would be based on a genuine case-by-case analysis. Many people in this room have had experience of the youth offending system. I think that with training and guidance, we can get this right and make sure that the power is not used in a disproportionate way that reasonable people would regard as an infringement and an inappropriate use of the power with regard to young people. [Interruption.] There is Ministry of Justice guidance which says that searches of males in young offender institutions must be risk based or following intelligence on a case-by-case basis. That is the guidance that will be followed. There will be a read-over and therefore the fear of randomness and of arbitrary judgment is removed by the use of that guidance and careful case-by-case analysis.
Keir Starmer
I appreciate that to some extent we are exploring the limits of this as we go along and I am grateful for the way that the Minister is dealing with that. It may be a simple question of reassurance but are there any circumstances where under this provision, a child under the age of 10 would be subject to a search? I do not think that would be available under any other provision in criminal law because they would be under the age of criminal responsibility. This is a genuine concern. I am not asking for an instant answer if it is impossible. It may be something that is better done in writing. I think for all criminal law provisions, 10 would be the lower trigger for obvious reasons.
The Solicitor General
I think, in asking the question, the hon. and learned Gentleman is almost answering the point. In that case, a child under 10 would not have been convicted of any criminal offence. That is an important start. I am happy to give the assurance that the measure would not apply to a child under 10.
Keir Starmer
Of course, the question answers itself regarding young offender institutions. I was not exploring that aspect but I am grateful for the Solicitor General’s assistance. My concern relates to those and any other centres. It is an exploring question, rather than one that may be capable of being answered straight off the cuff.
The Solicitor General
I am happy to give a direct answer. In any circumstance, this will not apply to children under 10.
Keir Starmer
I have said all that I need to say on amendment 197. I wish to press the amendment to a vote.
Question put, That the amendment be made.
The Solicitor General
The definition given in clause 24 is frequently used elsewhere in immigration legislation where immigration and police officers have various powers to search for, seize and retain documents that will facilitate a person’s removal from the UK. When it is not possible to obtain passports and identification cards, other documents that contain information such as date of birth, place of birth or right of residence can indeed assist foreign Governments to identify their nationals and provide travel documents for them. Those could include: birth, marriage or civil partnership certificates; divorce documents; adoption papers; maritime or military discharge certificates; tickets for travel in and out of the UK; stubs of boarding passes; resident status documents; and visas and vignettes.
The effect of the amendment would be to hinder the efforts of the Home Office to secure emergency travel documents and to remove people with no leave to enter or remain in the UK. We therefore fear that, despite the understandable intentions of the hon. and learned Gentleman, it does not reflect the reality of what we are trying to achieve, which is to help foreign Governments to facilitate the return of foreign nationals who, after having exhausted due process, are no longer entitled to be here.
Keir Starmer
I appreciate that the definition has been used elsewhere. It is the combination of that definition with the strip search that is of such great concern, although in the circumstances, and given the assurances on strip searches, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 ordered to stand part of the Bill.
Clause 25
Seizure of nationality documents by detainee custody officers etc
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clause 25, like clause 24, deals with a gap in the powers of officers charged with the care and security of immigration detainees and foreign national prisoners who are liable to deportation to obtain nationality documents to help the Home Office remove these people from the United Kingdom. As noted on a number of occasions, the ability to remove foreign nationals who have no right to remain here is often delayed by the need to obtain a passport or other travel document. We need to take all necessary steps to obtain those documents that will facilitate removal. This clause allows relevant officers to seize nationality documents that are found in the course of a routine search conducted using their existing powers and to seek the Secretary of State’s consent to retain that document and to pass it on to the Home Office where the Secretary of State has reasonable grounds to believe the document will help with the person’s removal from the UK.
Question put and agreed to.
Clause 25 accordingly ordered to stand part of the Bill.
Clause 26
Amendments relating to sections 24 and 25
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clause 26 amends schedule 11 of the Immigration and Asylum Act 1999, as a consequence of clause 24, by expanding the offences of assaulting or obstructing a detainee custody officer to include where an officer is performing functions under clause 24 to search for nationality documents. It ensures that a reference to a detainee custody officer in this context also includes a reference to a prison officer or a prisoner custody officer. It is only right, in extending the functions of those officers, that they are covered by existing offences of assault and obstruction. They deserve a degree of protection by criminal law if they are assaulted in the course of their duties.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clause 27 ordered to stand part of the Bill.
Schedule 4
Amendments to search warrant provisions
The Solicitor General
I beg to move amendment 24, in schedule 4, page 73, line 17, leave out from “application” to “, or” in line 19.
This amendment and amendments 25 and 28 to 30 are to clarify that the definition of “specific premises warrant” in section 28K(13A) of the Immigration Act 1971 inserted by paragraph 5(8) of Schedule 4 to the Bill applies to any warrant under that Act which is not an all premises warrant.
The Chair
With this it will be convenient to discuss Government amendments 25, 49, 50, 51, 26 to 28, 52, 53, 29 and 30.
The Solicitor General
These amendments to schedule 4 amend the provisions for immigration warrants. I am happy to say that they have been tabled as a result of lengthy dialogue with the Scottish Government—I know that will please and satisfy hon. Members, including the hon. Member for Glasgow North East. Amendments 26 and 27 remove the requirement for immigration search warrants obtained in Scotland to be returned after they have been executed. At the moment, under section 28K of the 1971 Act, warrants must be returned if issued by a justice of the peace in Scotland to the clerk of the district court for the commission area for which the justice of the peace was appointed or, if issued by the sheriff, to the sheriff clerk. These amendments will make it easier for the warrants to be available to the procurator fiscal as productions in criminal proceedings in Scotland, making the process a better way of working with our friends in the Scottish criminal justice system.
Amendments 24, 25, 28, 29 and 30 are technical amendments that clarify the definition of what is known as a specific premises warrant, which allows officers to enter only the address named on the warrant. Schedule 4 to the Bill introduces all-premises warrants, which allow officers to enter more than one set of premises occupied or controlled by a person who has to be specified in the warrant application, even if only one address is actually specified on the warrant. These amendments would make it clear that any warrant that is not defined as an all-premises warrant is therefore a specific premises warrant.
Amendments 49 to 53 are minor and technical amendments that ensure that the provisions regarding warrants in sections 28J and 28K of the 1971 Act, as amended by schedule 4, also apply to a warrant obtained for entering premises to detain a vehicle.
Amendment 24 agreed to.
Amendments made: 25, in schedule 4, page 74, line 14, leave out from “application” to “, or” in line 16.
See the explanatory statement for amendment 24.
Amendment 49, schedule 4, page 75, line 40, after “section” insert “24DA(6)(b),”.
This amendment and amendments 50 to 53 ensure that the provisions regarding warrants in sections 28J and 28K of the Immigration Act 1971 as amended by Schedule 4 also apply to a warrant obtained for entering premises to detain a vehicle.
Amendment 50, in schedule 4, page 75, line 43, after “section” insert “24DA(8),”.
See the explanatory statement for amendment 49.
Amendment 51, in schedule 4, page 76, line 5, after “seizure” insert “or detention”.
See the explanatory statement for amendment 49.
Amendment 26, in schedule 4, page 76, line 23, after “(8B)” insert “Subject to subsection (8C),”.
This amendment and amendment 27 reflect Scottish criminal law by removing the requirement for immigration search warrants obtained in Scotland to be returned to the clerk of the district court or the sheriff clerk after they have been executed, allowing for them to be retained for use by the Procurator Fiscal in court.
Amendment 27, in schedule 4, page 76, line 28, at end insert—
‘(8C) Subsection (8B) does not apply to a warrant issued by a justice of the peace in Scotland or by the sheriff if the warrant has been executed.””.
See the explanatory statement for amendment 26.
Amendment 28, in schedule 4, page 76, line 33, leave out from “warrant” to end of line 35 and insert “which is not an all premises warrant;”.
See the explanatory statement for amendment 24.
Amendment 52, in schedule 4, page 76, line 37, after “section” insert “24DA(6)(b),”.
See the explanatory statement for amendment 49.
Amendment 53, in schedule 4, page 76, line 40, after “section” insert “24DA(8),”.
See the explanatory statement for amendment 49.
Amendment 29, in schedule 4, page 77, line 8, leave out from “application” to “, or” in line 10.—(The Solicitor General.)
See the explanatory statement for amendment 24.
Keir Starmer
Let me start by setting out the purpose of these two amendments. Amendment 220 is intended to make mandatory the issuing of the code of practice that immigration officers must follow. Amendment 221 would delay the entrance into force of the provisions of part 3—which concerns enforcement, under the sub-heading “Powers of immigration officers etc”—until such time as the Secretary of State has made a direction under section 145 of the Immigration and Asylum Act 1999, and has laid the code specified in that direction before both Houses of Parliament. The context here is an agreement across the House that there has to be care, professionalism, necessity and proportionality in the exercise of all the powers that we have been discussing this afternoon.
The amendments are prompted by the current mismatch between Home Office guidance and the successive reports of the chief inspector of borders and immigration. To elaborate on that, the Home Office guidance by and large suggests that enforcement raids on premises and businesses are directed on the basis of specific intelligence about an individual who does not have leave to be in the UK. However, successive reports by the chief inspector of borders and immigration paint a different picture. In the inspection that the chief inspector conducted from October to November 2013, he reported that 59% of the cases he examined lacked the required justification for the use of the power and that in a further 12% there was insufficient information for him to form an opinion. Taken together, that 71% is a very high percentage of cases that the inspector is reporting. There is a mismatch between the guidance being issued and what is happening on the ground.
In the same report that related to October and November 2013, the chief inspector reported high varying use of the power across the country. In south London it was used in two-thirds of illegal working operations, and in east London it was used in 3% of cases. Therefore, the purpose of the amendments is to bolster the provisions for a code, to make the code mandatory and to delay the provisions until the code is laid before the Houses of Parliament.
The Solicitor General
In essence, our objections to these amendments are, with respect, that they have no substantial effect, given that it is already the case that immigration officers’ coercive powers are subject to the Immigration (PACE Codes of Practice) Direction 2013 and that the specified codes themselves—that is, the PACE codes of practice—have been laid before both Houses of Parliament.
Section 145 of the Immigration and Asylum Act 1999 makes it mandatory that immigration officers should have regard to such provisions as the PACE codes of practice as may be specified. “Specified” means in a direction given by the Secretary of State. It is already the case that the 2013 direction applies the relevant parts of the PACE codes of practice to the powers exercised by immigration officers. This direction is available in the Libraries of both Houses and is also published on the gov.uk website. Hon. Members will be well aware that any changes to the PACE codes of practice are laid before Parliament. We will of course update the immigration direction to reflect the new immigration powers in part 3 of the Bill and will ensure that is done in time for the commencement of these enforcement powers.
The hon. and learned Gentleman raised some points about a criticism about the use of enforcement powers, for which I am grateful to him. I think it was Liberty that referenced some statistics from the independent chief inspector of borders and immigration’s report on the use of the power to enter business premises without a search warrant—that was published in March of last year. An internal review had already highlighted that as an area for improvement, and the inspector’s report noted the following:
“During the course of our inspection, the Home Office moved quickly to address the issues that we identified. This was positive and demonstrated that the Home Office was, for the first time, starting to exert a much stronger grip on how the power was used by its staff.”
I hope that that is encouraging information for all Members present.
Where immigration officers are entering premises using a warrant, in order for that warrant to be issued, they will have to have satisfied the court that there are reasonable grounds for suspecting that a person who is liable to be arrested for a relevant offence is to be found on the premises or that there are reasonable grounds for believing that material that is likely to be relevant evidence of an immigration offence is on the premises. The safeguards for the use of these warrants is set out in sections 28J and 28K of the Immigration Act 1971 and reflect those provisions in the Police and Criminal Evidence Act 1984.
In the light of those points, I hope that the hon. and learned Gentleman will agree to withdraw his well-intentioned amendment.
Keir Starmer
I am grateful for the Minister’s explanations and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 30, in schedule 4, page 78, line 1, leave out from “application” to “, or” in line 3.—(The Solicitor General.)
See the explanatory statement for amendment 24.
Schedule 4, as amended, agreed to.
Clause 28 ordered to stand part of the Bill.
Clause 29
Immigration bail
Keir Starmer
I apologise for coming to very technical amendments at this stage of the day and the proceedings; we seem to have been dealing with technical amendments for some time. Perhaps it will be possible for the Minister to give an assurance; the purpose of the two amendments is to ensure that individuals in the circumstances set out in the explanatory statements will not be in a worse position under the Bill than they are now.
The Solicitor General
Amendment 216 seeks to change the way the leave that is extended by section 3C of the Immigration Act 1971 operates. With respect, there has been a misunderstanding of the current position. The effect of the amendment would be that where a person applies for leave to remain and their application is refused while they still have immigration leave, their leave would be extended by section 3C while they bring an appeal or administrative review. Where an appeal or administrative review is lodged, leave will continue to be extended until any appeal or administrative review is no longer pending.
It was said that the reason for the tabling of the amendment is that people in that situation do not have their leave extended by section 3C, and that is an unintended consequence of the Immigration Act 2014. That is not the case. In fact, if anything, the 2014 Act actually improved the position with regard to section 3C. It has always been the case that, where an application is refused while the applicant still has immigration leave, leave is not extended by section 3C while a challenge to the refusal can be brought. In other words, section 3C applies only to undetermined applications. Where somebody is still waiting for an application to be dealt with, section 3C kicks in to allow the delay to be remedied.
Keir Starmer
Just to clarify that point, what is the position if the Secretary of State cancels the leave during that period?
The Solicitor General
The whole purpose of the provision is to deal with the question of cancellation where there has been a breach of the conditions. I will come on to that point in the clause stand part debate. At this stage, we see no reason to change the position in the way that is outlined in amendment 216.
Amendment 217 would have highly undesirable consequences and is unnecessary. With respect to the hon. and learned Gentleman, he does not fully outline the Government’s case in the Iqbal case, the Court of Appeal judgment by Lord Justice Elias that was reported earlier this year. The amendment, as outlined by the hon. and learned Gentleman, would mean that immigration leave would be extended by virtue of section 3C for anyone who makes an invalid application for further leave.
The problem is that that is clearly open to potential abuse. A person could deliberately make an invalid application, for example by neglecting to pay the required fee or by failing to provide mandatory documents, and continue to remain in the UK lawfully. That leave would continue until the Home Office determined that the application was invalid. That, I am afraid, would potentially be a charter for exploitation by unscrupulous people who could make invalid applications simply to extend their immigration leave and to take advantage of the section 3C provision.
The amendment is also unnecessary, because our rules and guidance set out clearly how to make a valid application, and an opportunity is provided for mistakes that lead to an application becoming invalid to be made good. That provides a safeguard for people who, from time to time, make a genuine error. Where a fee is paid, we will contact those who make invalid applications to tell them what steps they need to take to make their application valid. Where people respond within the specified time limit and provide the missing information, they will be deemed to have made a valid application, and their leave will be extended by section 3C if the application was made before the expiration of their previous leave. That point was dealt with chiefly in the case of Iqbal.
The safeguard works. More than 650,000 applications were made between April last year and June this year, of which only 2.45% were rejected as invalid. I understand the concerns expressed about access to services and about the offences that the Bill introduces for those who work illegally or drive while unlawfully in the UK. However, in practice, those measures will not be applied to individuals until the Home Office has determined whether an invalid application has been made.
Oral Answers to Questions
Robert Buckland Excerpts(9 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Karl MᶜCartney (Lincoln) (Con)
8. What steps the Crown Prosecution Service has taken to improve the conviction rate for rape and domestic violence in the last two years.
The Solicitor General (Robert Buckland)
This year, more cases of violence against women and girls have been referred from the police, charged, prosecuted and convicted than ever before. The work undertaken by the Crown Prosecution Service and the police on rape and domestic abuse culminated in the highest volumes ever of prosecutions and convictions in 2014-15.
Karen Lumley
In the West Mercia region, in which my constituency is located, we have seen the rape crisis go up this year to 700 from 400 cases. Can my hon. and learned Friend assure me that we are doing everything we can to make sure that these people are prosecuted?
The Solicitor General
CPS West Midlands has a specialist rape and serious sexual offences unit in recognition of the increasing volume of rape and serious sexual offences reported. CPS West Midlands has increased the size of the unit and the team continues to work very closely with the police, victims groups and the independent Bar to ensure that strong cases are built and witnesses looked after.
Karl MᶜCartney
I thank my hon. and learned Friend for his original answer. Has he brought forward any specific steps to support an increase in convictions where men are the victims of rape or domestic abuse?
The Solicitor General
I am grateful to my hon. Friend for that question, and let me assure him that when it comes to the prosecution of rape and serious sexual offences, it applies equally to men as to women. Boys, of course, can also sadly be the victims of sexual abuse. Sentencing guidelines, of course, draw no distinction of gender, and neither should the investigation or prosecution of offences.
Andrew Gwynne (Denton and Reddish) (Lab)
Despite claims of the highest number of convictions ever, the fact is that in the last year the number of convictions for rape, domestic abuse and other serious sexual offences has fallen. What is the Solicitor General going to do to turn those worrying figures around?
The Solicitor General
I think the hon. Gentleman means that the rate has fallen slightly. I think it important to continue to prosecute more and more of these cases. For too long, many victims have found that their cases have not even been brought to court. Looking at the analysis of rape convictions, I am encouraged to see that the number of convictions that have not been brought because of a prosecution failure is reducing, so drilling down and looking at the reasons for the non-convictions is very important. We have to continue progress in that direction.
Catherine McKinnell (Newcastle upon Tyne North) (Lab)
Successfully prosecuting rape and domestic violence cases clearly requires a properly resourced CPS, yet the budget has been slashed by 25% since 2010 and the rate of ineffective and cracked trials owing to prosecution issues is at a five-year high. With senior respected personnel leaving and expressing grave concerns, do the Solicitor General and the Attorney General really believe that the CPS can sustain more cuts on the same scale and still deliver justice?
The Solicitor General
I am afraid that the hon. Lady is in error when she suggests that the number of ineffective trials is at an all-time high. As I have said, the number of cases being prosecuted continues to increase, and there is no question of prosecutions not being brought because of a lack of resources. Rape and serious sexual offences units are well resourced, and they will continue to be resourced by the CPS.
David Mowat (Warrington South) (Con)
5. What steps he plans to take to protect child witnesses in sex abuse and other cases from intimidation during cross- examination.
Mark Menzies (Fylde) (Con)
11. What recent steps the Crown Prosecution Service has taken to improve its engagement with and support for vulnerable witnesses.
The Solicitor General (Robert Buckland)
The defence case has to be put to all prosecution witnesses, but in order to ensure effective cross-examination, a mandatory advocacy course for all defence advocates is being developed and will include the cross-examination of vulnerable witnesses. Pre-recorded cross-examination has already been piloted successfully, and we are committed to a national roll-out.
David Mowat
In 2011, at Stafford Crown court, a victim of child abuse was cross-examined in a vicious and intimidatory way for 12 days by a team of seven barristers, during a session in which the judge was generally thought to have lost control of the courtroom. Such cross-examination is a massive disincentive for others to come forward. Four years later, may I ask what steps have been taken to prevent it from happening again?
The Solicitor General
I well remember that case. The good news is that in the retrial matters were handled very differently, and the outcome was successful. However, intimidatory cross-examination should not happen. Judges have a duty to ensure that young witnesses are not cross-examined inappropriately. As I have said, a new advocacy course is being developed to ensure that that sort of abuse does not happen again.
Mark Menzies
Will the Solicitor General tell us what the CPS is doing to help vulnerable witnesses, such as victims of human trafficking, to give evidence in courts?
The Solicitor General
Recently, the CPS drew up new guidelines for the care of witnesses in court. Those guidelines are currently being piloted and will be rolled out nationally in the new year. They will go a long way towards supporting witnesses, while avoiding the dangers of coaching witnesses in the giving of evidence, which, of course, would not be desirable.
Jim Shannon (Strangford) (DUP)
In the last few years, it has become clear that a great many young people have been sexually abused over a number of years and are traumatised by that abuse. Can the Solicitor General assure the House that the necessary resources are available so that the young people in all those cases can be looked after?
The Solicitor General
I can reassure the hon. Gentleman. As I have said many times before, when it comes to the protection of vulnerable witnesses and complainants in criminal cases, the CPS is always working to improve its processes so that the experience can be as smooth as possible. What we do not want is a repeat, in effect, of the abuse that those people originally suffered when they come to court and give evidence.
John Howell (Henley) (Con)
14. Operation Bullfinch, in Oxford, introduced a number of radically different procedures for coping with vulnerable witnesses. What lessons have been learnt from that?
The Solicitor General
I know that my hon. Friend has a long-standing interest in improving the processes as a result of that case, which helped to revolutionise the way in which the investigatory authorities all work together. There have been a number of other successful investigations in his own police area, which are helping to improve national practice, and there is a much greater understanding across the country of the way in which such cases can be effectively prosecuted.
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
6. Whether future military action using drones overseas will require his approval.
Tom Pursglove (Corby) (Con)
7. What steps the Crown Prosecution Service is taking to ensure that court time is not wasted.
The Solicitor General (Robert Buckland)
The listing of court cases is a judicial function and a responsibility of Her Majesty’s Courts and Tribunals Service, but when cases are listed the CPS takes steps to make sure the prosecution case is properly prepared and ready for an effective court hearing so the time set aside is fully utilised.
Tom Pursglove
I thank the Minister for that answer, but during a visit to Corby magistrates court I was shocked to hear about how much court time is wasted owing to the CPS not having its case together in time for when it is scheduled. Does the Minister agree that it is unacceptable for cases that are not complete to be brought to court? We really do need to get away from this; it is unacceptable and it wastes not only time but money.
The Solicitor General
I am grateful to my hon. Friend for his question. I know he works very hard with his local courts service. A lot of innovation with regard to transforming summary justice and the increasing use of digital processes is leading to quicker timescales, much more effective first hearings and a more efficient use of court time, so I think he has reasons to be optimistic.
Several hon. Members rose—
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
Thank you, Mr Speaker.
A constituent of mine who is a very competent manager recently did jury service. He said the court system was medieval and it was about time someone came in and organised it better, managed it better and gave a real return to the taxpayer, with better justice delivered quickly.
The Solicitor General
I am grateful to the hon. Gentleman for his question. After many years in the courts system myself, I understand his constituent’s concerns. The good news is that a lot of work is being done to digitise the paperwork so that time can be saved. Already there is a new proposed roll-out next year, which will co-ordinate the way in which the courts work with the CPS and other agencies so the sort of delays that irritated his constituent can be reduced and removed.
Graham Evans (Weaver Vale) (Con)
9. What steps the Crown Prosecution Service is taking to increase the number of successful prosecutions for human trafficking offences involving forced labour.
The Solicitor General (Robert Buckland)
In advance of the introduction of the Modern Slavery Act 2015 the CPS delivered joint training with the police and issued guidance to strengthen prosecutions. In forced labour cases the CPS also encourages prosecution for other offences such as trafficking for forced labour, money laundering, benefit and mortgage fraud, tax evasion and Gangmasters (Licensing) Act offences.
Graham Evans
Given the sheer number of refugees fleeing the conflict in Syria, taking action against human traffickers is of the utmost importance in protecting some of the world’s most vulnerable people. What steps is my hon. and learned Friend taking to improve the confiscation of the proceeds of exploiting migrant workers into modern-day slavery?
The Solicitor General
I know that my hon. Friend has a long-standing interest in this issue. The Crown Prosecution Service is helping to improve the situation by building capacity and capability in other countries, because this is an international problem. This is being done by better linking the work of the regional asset recovery teams with that of the human trafficking investigators, so that financial investigation can become sharper and more efficient.
David T. C. Davies (Monmouth) (Con)
13. My hon. and learned Friend has outlined what is being done on an international basis. Will he go further and confirm that the Immigration Bill, which had its Second Reading this week, will help to tackle this disgraceful problem at a domestic level?
The Solicitor General
The Minister for Immigration and I have the duty of taking that Bill through its stages in this House, and I can assure my hon. Friend that its provisions will dovetail well to improve the range of tools that the authorities have to protect victims of trafficking and prosecute perpetrators.
Alun Richards and Kashif Shabir: SFO
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The Solicitor General (Robert Buckland)
It is a great pleasure to serve under your chairmanship, Mrs Main. I pay warm tribute to the hon. Members for Cardiff Central (Jo Stevens) and for Ogmore (Huw Irranca-Davies) for bringing this important debate to the Chamber and for having not only the courtesy but the sense of co-operation to approach me before it so that I could clearly understand the cases that would be raised. I hope, in the light of that, to offer an appropriate response. My response has to be calibrated bearing in mind the nature of the office I hold and the importance of having an independent prosecutorial service, and I know that Members on both sides of the House understand that.
I also pay tribute to the hon. Member for Newcastle upon Tyne North (Catherine McKinnell) and welcome her to her post as shadow Attorney General. I was delighted to hear her remarks. Although no doubt we will disagree about some issues, I am sure we will be able to work constructively together in the finest traditions of the Law Officers and shadow Law Officers, and their unique role within Government.
The issues that have been raised—it is almost axiomatic, but it is important to say it—are important. They are wide-ranging and the presence of the hon. Member for West Bromwich West (Mr Bailey) has been helpful, because, as he reminded us, he was the Chair of the Business, Innovation and Skills Committee that took oral evidence in March. I am grateful to him for coming to the debate. He will appreciate that issues of regulation are for other arms of Government, but one function of debates such as this is for the House to hear the bigger picture, so that all arms of Government are fully aware of Members’ concerns.
The hon. Member for Cardiff Central asked for a general review. As she will know, there have been a number of reports and reviews on specific aspects of this type of alleged misconduct. We heard reference to the Tomlinson report, which, in itself, gave rise to what is termed the skilled persons report under section 166 of the Financial Services and Markets Act 2000. That report is due to be produced at the end of the year. It relates to another bank, but the type of alleged activity is highly germane to the issues that we have been discussing.
I hope that hon. Members will forgive me for confining myself to the debate’s terms of reference. What I aim to do, first, is to offer strong reassurance to hon. Members about the importance with which the SFO regards all allegations and the threshold test that it must apply.
I listened to the shadow Attorney General’s remarks with great interest. I disagree with her about the very nature of what is a demand-led service and the importance of having blockbuster funding to allow for the flexibility that the SFO needs, in terms of hiring or engaging staff, and larger numbers of staff at different times, particularly to deal with finite inquiries. There is also the impracticability of maintaining very large staffing numbers at all times because of the inevitable pressures that will exist upon its budgets, whatever the economic weather. With respect, the point that the hon. Lady was missing was the terms of reference within which the SFO was set up, and it is important to remind the House about those, because they are highly germane to the test that has to be applied to all allegations of fraud.
Those of us with a long memory will remember the Roskill report of 1986. It was groundbreaking because it made important recommendations about the investigation of serious fraud that gave rise to the Criminal Justice Act 1987. The Roskill model, which was the embedding of investigators and prosecutors together in one group, gave rise to the Act and setting up the Serious Fraud Office.
The sort of cases that the SFO deals with are what I, and I think all of us, would regard as the very high-profile, big-risk cases involving huge sums of money, large numbers of victims or new types of fraud, whether the manipulation of LIBOR rates, or allegations involving major companies such as GlaxoSmithKline, Barclays, Tesco and Rolls-Royce. This is a particular type of serious fraud for which the threshold has to be high and, in fact, it is set out in the Act. We therefore have to recognise that, sadly, not all cases of alleged fraud are going to fall to the SFO to investigate. As I said, it can only formally commence investigation if the criteria and circumstances set out in legislation are met.
The police have the primary responsibility for investigating crime here, and Action Fraud has been established as the national reporting centre to which reports of alleged fraud should be referred in the first instance. The SFO’s role is limited to the investigation and prosecution of cases of serious and complex fraud. However, I can assure the House that when referrals are made to it, a member of the SFO assesses every single one. That task is not to be underestimated. The vast majority of referrals to the SFO are not about matters that it can properly investigate, but it takes every single referral seriously, and it will give each one due consideration and pass on details to other agencies that may be more suited to dealing with it or placing particular cases. It also retains the material that it has been given, using that for intelligence purposes to help inform other agencies and, indeed, sometimes in its own work to identify those top-tier cases that are appropriate for it to investigate.
Huw Irranca-Davies
I thank the Minister for the helpful way in which he is laying out his points. He mentioned the threshold test. If evidence was to be gained that this went beyond two individual cases and that there were far more, would it pass the threshold test? If that is the case, rather than relying on the CPS or on individual prosecutions, would it be, in the light of the questions asked by my hon. Friend the Member for Cardiff Central, appropriate—or, in fact, necessary—for the SFO to make inquiries of Lloyds, RICS, and Alder King in relation to how many examples of conflict of interest and potential financial gains along the way this could affect? If we are talking about thousands of people—my apologies for the length of this intervention, Mrs Main—I suspect we are in SFO territory.
The Solicitor General
I hope that the hon. Gentleman can be forgiven for the length of his intervention, because he asked a very pertinent question. Although I cannot prejudge the precise parameters of what might happen in the future, circumstances may well change, and the SFO, keeping matters under review as it does, would then have to be guided by that change in circumstances. In other words, we cannot rule that possibility out. It would be wrong of me to do that.
Dealing, then, with the specific allegations, I have to acknowledge that it would be unusual for me to comment in detail about allegations either leading towards an individual or made by an individual or a company, but I am aware of course that Mr Shabir and Mr Richards have raised their allegations with a wide range of people and organisations, and I do not underestimate their importance. The two gentlemen clearly have had a very difficult time. The consequences of what has happened are extremely serious for them. That said, I have to stress that these remain allegations. It is not for me to comment on their merits or whether they are well founded. I have to acknowledge the effect of allegations that are made, and that is an important point when discussing them in a public forum such as this. Those are the constraints within which I think I should operate.
Although Mr Shabir and Mr Richards have presented their cases together, they are making slightly different allegations. It is right to say, as has been said in the debate, that the SFO has met the gentlemen on more than one occasion; the allegations have been considered in great detail; and there has been close liaison with other law enforcement agencies and regulatory bodies to gather any relevant material that they may hold. However, the SFO has explained to both gentlemen that their cases, individually, would not meet the threshold and would not be investigated, because as stand-alone allegations, they do not come into that top tier. That has been made clear. We have already—I am grateful to the hon. Member for Ogmore—started to outline and discuss what might or could happen to change that position, but that is the status quo.
I have said that it is important to recognise that the SFO does not investigate every case of alleged fraud—that is not its purpose—and I know that despite referrals to other organisations, no proceedings have yet been brought. However, the material provided by Mr Richards and Mr Shabir is being kept or has been kept under active consideration by the Serious Fraud Office, and this matter is kept under review as new information may arise. It is not a closed file, but obviously at this stage the threshold has not been reached.
This is exactly what the SFO should be doing. It is seeking to make intelligent and intelligence links to identify cases of serious or complex fraud. To seek to investigate every case would defeat its purpose and overwhelm its resource, and frankly it would have no statutory footing on which to do so. I argue strongly that the current director has demonstrated that he is prepared to take on difficult and high-profile cases. The seriousness of the investigations to which I have referred will, I hope, demonstrate to hon. Members the sort of case that the SFO should be taking on. In other words, the office has a specific role that Parliament has given it. If the SFO can put all these allegations together with other intelligence to establish a case of serious or complex fraud, it will do so, and that is why it has decided to keep this significant matter under review.
Oral Answers to Questions
Robert Buckland Excerpts(9 years, 6 months ago)
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James Berry (Kingston and Surbiton) (Con)
12. What steps the CPS is taking to ensure its prosecutors will be able successfully to prosecute the criminal offence of forced marriage.
The Solicitor General (Robert Buckland)
The first successful prosecution using the new offence of forced marriage was recorded earlier this year. Previously, the Crown Prosecution Service had to use offences such as assault and kidnap to address this serious issue. The CPS has provided legal guidance and learning support to its prosecutors on cases of forced marriage to raise their awareness of the issues involved, which includes the important work of joint workshops with the police in every CPS area to tackle this menace.
Bob Blackman
I thank my hon. and learned Friend for that answer. Clearly, we want to rid society of this scourge. Will he update the House on how many prosecutions have been brought to court and how many are in the pipeline?
The Solicitor General
From 2010, particular offences that involve forced marriage as a key element have been flagged by the CPS. I am happy to report that the volume of completed prosecutions in the last year, 2014-15, rose to 46, the highest ever. There is more work to be done, but the progress is encouraging.
Graham Evans
Forced marriage is a scourge across many communities in the UK and I welcome the work undertaken by the Government on the Modern Slavery Act 2015. Will my hon. and learned Friend update the House on the work being carried out to bring this scourge to an end? What advice has been provided to young men and women who might be at risk of forced marriage?
The Solicitor General
The joint Home Office and Foreign and Commonwealth Office forced marriage unit, which has been in operation for about 10 years, provides free and confidential advice on the dangers of being forced into marriage and the precautions that can be taken. It operates both here and overseas and last year gave advice and support in nearly 1,300 cases. I commend its work to the House.
James Berry
I declare an interest, as a barrister. What is the CPS in London, where my constituency sits, doing to embed best practice for the prosecution of forced marriage?
The Solicitor General
I welcome my hon. Friend to the House. He brings a wealth of legal experience and I am grateful to him for his interest. He mentioned joint training courses; 14 London prosecutors attended last year’s joint training course, held with the Metropolitan police on forced marriage, honour-based violence and female genital mutilation. There is a specialist team of about 25 lawyers in London dealing with all Crown court cases that include elements of forced marriage and there are similar arrangements in magistrates courts.
Keith Vaz (Leicester East) (Lab)
Of the 1,271 cases, 11% involve victims who are under the age of 16. In the last Parliament, the Select Committee on Home Affairs specifically asked the Education Secretary to write to every headteacher to make them aware of this problem, especially before the summer holidays. Has this been done? If not, can it be done?
The Solicitor General
I do not have the information on whether that letter has been written, but I very much appreciate the importance of cross-governmental working to deal with this issue and, indeed, many others that, as the right hon. Gentleman knows, are cultural and need to be tackled head on rather than ignored.
Helen Jones (Warrington North) (Lab)
Given that the forced marriage unit, which the Solicitor General rightly commended, is offering advice on some 1,300 cases, we are clearly only touching the tip of the iceberg with the number of cases that come to court. Is he certain that Crown prosecutors have the resources they need to deal with these complex cases and adequate training to understand the cultural and family backgrounds that might lead to victims wanting to withdraw the case?
The Solicitor General
The hon. Lady makes a proper point. I can reassure her that the degree of training and, importantly, the joint training that goes on with the police is very much understood by the Crown Prosecution Service. It applies not just to forced marriage, but to a range of offences in which cultural barriers and other issues can make it difficult for victims to come forward. It is well understood and I am glad to see that numbers continue to increase, but of course more work needs to be done.
Jim Shannon (Strangford) (DUP)
Since the Modern Slavery Act came into force, there has been some limited success, but more has to be done to protect victims. What has been done to train staff in the public agencies to spot forced marriages?
The Solicitor General
I have dealt with training within the CPS and the police, but the hon. Gentleman makes a proper point about third-party agencies. In the case of young people it is an issue of safeguarding. Forced marriage is a form of child abuse and must be recognised as such. All agencies should be alert to this manifestation and make reports promptly and comprehensively.
Nick Thomas-Symonds (Torfaen) (Lab)
Does the Solicitor General agree that the number of successful prosecutions on forced marriages, as with other offences, depends on there being a sufficient number of prosecutors with the time to make individual judgments on cases and to prepare properly for trial? Does the hon. and learned Gentleman agree that cutting the number of prosecutors in this Parliament and cutting funding for the Crown Prosecution Service is likely to be counterproductive?
The Solicitor General
I welcome the hon. Gentleman to his place—another experienced lawyer. The work that has been done by the Crown Prosecution Service in the past five years in removing excessive expenditure in the back office and concentrating on the front line has yielded results. I am absolutely confident that issues of resource will never get in the way of the proper investigation and prosecution of such allegations.
Nick Smith (Blaenau Gwent) (Lab)
3. What his future funding proposals are for the Serious Fraud Office; and if he will make a statement.
The Solicitor General (Robert Buckland)
The Serious Fraud Office is a small and demand-led organisation that comprises investigators, prosecutors, accountants and other specialists. The model, which is known as the Roskill model, gives the director of the SFO the flexibility to have the right combination of expertise to tackle the most complex and large cases. The current blockbuster funding approach allows him to take on cases that are exceptionally demanding in terms of resource, such as the LIBOR case, while avoiding the need constantly to maintain high levels of permanent staff, which are not always necessary.
Nick Smith
The SFO going cap in hand to the Treasury when it wants to take on a major case could mean delaying justice. Why not let moneys recovered by the SFO be kept by it so that it has autonomy?
The Solicitor General
Attractive though that proposal sounds—I take it in the constructive spirit that I know the hon. Gentleman intends—my worry is that that is an even more uncertain means of funding the SFO. The advantage of blockbuster funding is that it allows the SFO the flexibility it needs, allows significant amounts of money to be allocated to its work, and proves the point that funding will never be a bar to the work of the SFO in investigating serious fraud.
Mr Speaker
I think the Solicitor General is telling us that he is not all that keen on the idea, if one interprets the lawyer-speak.
Alex Chalk (Cheltenham) (Con)
Installing temporary IT equipment in courts for SFO prosecutions is eye-wateringly expensive and a drain on SFO resources. Does the Solicitor General agree that we need to look again at this issue to establish whether the taxpayer is getting value for money?
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
The Solicitor General may know of my long-term interest in this matter. We all want a Serious Fraud Office that is fit for purpose; this Serious Fraud Office is not. We go back to the catastrophe that was the daft prosecution and dawn arrest of the Tchenguiz brothers. As he knows, if we have a weak SFO, it relies on accountants, such as Grant Thornton. That is not a healthy relationship for the SFO.
The Solicitor General
The hon. Gentleman is right to refer to previous failures, but things have moved on considerably in the right direction since the appointment of the current director in 2012. It is important that we give our full-throated support to the work of the SFO because, as the hon. Gentleman says, if there are doubts about the integrity and efficacy of that important arm of the prosecutorial authorities, we are in serious trouble indeed. I hope he will recognise that progress is being made.
Mr Philip Hollobone (Kettering) (Con)
Progress might be being made, but why is the SFO not performing better than it is, and what international comparisons have been made to identify better examples that it could follow?
The Solicitor General
I do not have chapter and verse on international comparators today for my hon. Friend, but I am more than happy to have that discussion with him. The Roskill model, which allows prosecutors and investigators to work hand in hand, is essential when it comes to this type of offending. It works and it must continue to be supported. Whatever the framework within it, that model of investigation is very important.
Crown Prosecution Service
Robert Buckland Excerpts(9 years, 6 months ago)
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The Solicitor General (Robert Buckland)
It is a pleasure to serve under your chairmanship, Mrs Main. I congratulate the hon. Member for Erith and Thamesmead (Teresa Pearce) on securing this debate. I am never clear when there is a Division whether we are given injury time in the form of an extra 15 minutes. If so, be warned that I might have to use it all, because I want to ensure that I refer to the excellent contributions made by Members from all parties.
It is perhaps right of us—it is certainly right of me, as one of Her Majesty’s Law Officers—to remind the House why the Crown Prosecution Service was set up 30 years ago: to deliver justice for the public through the independent prosecution of crime across England and Wales. I was interested in the comments of the hon. Member for Angus (Mike Weir) about the question of independence, which is at the heart of how the criminal justice service in England and Wales operates. There are parallels between the work of employed prosecutors in Scotland and those employed by the CPS in England: while prosecutors remain in the employ of the service, conflicts should not and cannot arise, but where we have an independent referral service, such as the Bar of England and Wales, the independence and objectivity that it can bring to often difficult and sensitive cases is without parallel in the western world.
We should celebrate that, as well as the work of Crown prosecutors the length and breadth of England and Wales, and all the support staff who work so hard in offices and courts throughout the country. I speak with 20 years’ experience as a prosecutor who has worked closely with the CPS, particularly in Wales, dealing with a wide range of serious crime. I not only cherish that experience, I find it incredibly useful in my work as a Law Officer.
I am delighted to welcome not just to this debate but to this House new Members with similar experience of the criminal justice system. We have two in the room today—my hon. Friend the Member for Cheltenham (Alex Chalk) and the hon. and learned Member for Holborn and St Pancras (Keir Starmer), to whose excellent speech I will return—but it would be wrong of me not to refer as well to the hon. Member for Torfaen (Nick Thomas-Symonds), who went down a more civil path in his career at the Bar but reminded us of his early days, an experience that I think several of us have shared.
The hon. Member for Neath (Christina Rees), of course, is also a qualified member of the Bar, which should be put on record. I am grateful to her for her contribution, albeit on an issue that is perhaps more within the purview of the Ministry of Justice. The delivery of justice is achieved by working with other agencies, and her contribution brought that into perspective. Although the CPS is a large cog in the system, it is but one part of that system; it must work with the police and court system to ensure that criminal cases are brought not only to court but to a conclusion.
The test that is applied is one that loads of us who are close to the service can probably recite in our sleep, but it is none the less important to remind ourselves of it. It is the two limb test. First, is there a realistic prospect of a conviction? Secondly, is it in the public interest to bring the prosecution? I hope that answers somewhat the criticism made by the hon. Member for Angus about the bringing of cases by the CPS that have not ended in a successful conviction and that have, in his words, brought into question the reputation of the service. With respect to him, if the CPS were to adopt a test involving risk of acquittal, no cases would ever be brought, because there will always be a risk of acquittal in taking a case to court. That should not deter Crown prosecutors from doing their job.
Mike Weir
I agree entirely. I was merely making the point that there have been some high-profile cases in which convictions were not secured, and perhaps some in which the evidence was shaky at best. That has reflected on the CPS in the public mind. It is not a criticism of the CPS; I understand that not all cases are successful, and not all cases should be.
The Solicitor General
I am sorry to disagree with the hon. Gentleman, but therein lies the problem. If we as politicians and commentators start making such value judgments, we undermine confidence in the independence of the prosecutorial system. We must trust an impartial and objective application of the threshold test. Any questioning of that causes me and many others great concern about the integrity of our prosecutorial system.
Keir Starmer
Does the Solicitor General agree that, when a case is charged and the judge decides that there is a case to answer, that case is properly brought, even if there is an acquittal? It is important to our criminal justice system that we adhere to that. The mere fact that a case, high-profile or otherwise, does not end in a conviction is not a test of whether the charging decision was right or wrong. A better test is whether the judge left it to the jury. If that is so, it normally means that the case should have been brought.
The Solicitor General
I am grateful to the hon. and learned Gentleman. He presages the point that I was going to make about sufficiency, and about the checks and balances throughout the court process. Arguments can be made about the sufficiency of the evidence at the beginning of a case, at the end of the prosecution case, and, indeed, in some rare circumstances whereby judges withdraw cases from juries—it does not often happen—at the end of defence cases, but the power remains.
In making such criticisms, we are also in danger of calling into question the jury process and indeed the whole system, which is so integral to the rule of law in this country. I was asked—rhetorically, perhaps, but I will give an answer—what strategy this Government have. It is a criminal justice system that upholds the rule of law, enhances public confidence in the system and ensures that there is a consistent approach to bringing cases and sentencing, so that the public feel confident and are protected by due process within the system. That is nothing new—it has been with us for generations—but this Government believe in it as passionately as previous Governments, of whatever colour.
I want to deal with each contribution in turn, but particularly with the opening speech by the hon. Member for Erith and Thamesmead and her experience of giving evidence in a trial. It does not sound to me as though best practice was followed in her case. I am glad she has brought it to the attention of the House, because those with responsibility for the administration of justice, not only in the magistrates court in Bexley but elsewhere, will do well to remember that the housing of witnesses for the prosecution with either defendants or their families is wholly inappropriate and leads to all sorts of complications that I need not recite here.
[Nadine Dorries in the Chair]
The hon. Member for Erith and Thamesmead asked specific questions about witness care officers. I accept that the numbers have been reduced in line with other staff reductions, but, importantly, those reductions have been accompanied by reforms to better target our limited resources to help witnesses who are intimidated or vulnerable, and those who are in greatest need. Even more is being done with regard to the change of culture to which my hon. Friend the Member for Cheltenham referred. For example, the Government are now improving access to information for victims through the new online and telephone-based victim information service that was launched in March. The increasing commissioning of victims’ services through local police and crime commissioners will create a more responsive service—a more localised service—that I do not believe will create a postcode lottery, but will emphasise best practice from which other areas can learn. Although I accept there have been reductions in expenditure, the change in culture that everybody in the system—counsel, solicitors, and lawyers in their role in explaining matters and reassuring and supporting witnesses and victims—has experienced continues to grow.
Alex Chalk
On precisely that point, if counsel apply the victims’ charter and explain the situation to witnesses and victims as they come to court, it can have an extraordinary impact on how they end up viewing the criminal justice system, and it does not cost a penny.
The Solicitor General
Very much so. A lot of us who pioneered such work in the ’90s now find that a lot of what we said and believed then is becoming standard practice, and that is absolutely right. We have heard reference to the victims’ right to review, and, as was made clear in an intervention on the hon. Member for Rochdale (Simon Danczuk), there is an ongoing process in relation to a particular case that means that it would be inappropriate for me to comment on it. However, I hear what the hon. Gentleman says, and I will come back to his point about historical child sexual exploitation in a moment.
Importantly, the new victims’ right to review scheme that was established last year gives victims a further opportunity to ask the Crown Prosecution Service, with the help of independent advice, to consider again the merits of particular decisions. So far, between June 2013 and the end of September last year, 263 decisions have been overturned by the new system. It is a small proportion of the number of Crown Prosecution decisions that are made, but it is an extra safety valve that goes a long way, as I said in relation to our strategy, to enhance public confidence in the criminal justice system.
I have referred en passant to the hon. Member for Rochdale, who talked with his usual power about child sexual exploitation. It is a national emergency. I entirely agree with him, and so do the Government. The way in which complainants were dealt with historically in towns such as Rotherham and the town that he represents was wrong. There was far too much emphasis on the reliability of the individual witness, who was often very young and vulnerable, rather than an overall view of the merits of the case. That is rightly acknowledged to have been an incorrect approach. The thrust of the work being carried out by the Crown Prosecution Service now very much reflects the fact that lessons have been learnt, and there are a number of marked successes when it comes to convictions in such cases. A number of so-called celebrities have rightly been brought to justice, and young victims in larger conspiracy-based cases involving many young and vulnerable complainants have now had their voices heard, as the hon. Gentleman says, and can now see that some justice has been brought in order to help them get on with lives that have been torn asunder by the abuse that they suffered.
The hon. Member for Torfaen rightly talked about pressure and efficiency and how decisions are to be made where there is a reduction in the number of lawyers. The way to measure that is by looking at some of the efficiency measurements that the CPS has conducted. The percentage of guilty pleas at first hearing is a good measurement, because that clearly demonstrates that there has been an excellent level of pre-trial and pre-plea preparation in terms of case management, which means that the evidence has been presented clearly and that those advising defendants can confidently tender advice in a proper way. The percentage of guilty pleas at first hearing has increased from 63.4% in 2010-11 to 70.6% in the last financial year. That is a significant increase.
Another vital piece of information relates to the percentage of magistrates court proceedings that are dropped at a third or even fourth or fifth hearing. That percentage has fallen from 44.2% to 34.1%. In the Crown court, cracked and ineffective trials owing to prosecution failure have fallen from 18.2% to 13.5%. That shows that those who are responsible for decision making and case preparation in the CPS are rising to the challenge and yielding significant results. I pay tribute to chief Crown prosecutors in regions such as the west midlands and the south-west for understanding the importance of the management of the huge volume of cases that come across the desks of prosecutors week in, week out, and for making sure that further improvements are made so that, from the CPS’s point of view, they are doing everything they can to ensure that the Courts Service is efficient.
It would be churlish of me not to put on the record my grateful thanks for the service of the hon. and learned Member for Holborn and St Pancras as Director of Public Prosecutions. He came in at a time when the service already knew that it would face important financial challenges under his stewardship, and he managed them admirably. It is in no small part due to the leadership that he showed that the sorts of figures I have been able to bring to the debate today, and the improved efficiencies in the CPS have been achieved. We are grateful to him.
The hon. and learned Gentleman asked about strategy, and I have given him the answer that I think needs to be set out. He also talked about lines of sight and the risks being run with regard to the impact of reduced resources at a time when it is clear that case loads are increasing. I agree with him: case loads are increasing. We have more terrorism cases and an increase in child sexual exploitation cases. He is right to ask questions. I can reassure him that, as in his day, there continue to be regular meetings between the Director of Public Prosecutions and chief Crown prosecutors to ensure that the current director is fully aware of the impact of changes in case load and resources on individual CPS areas. Further to that, both the Attorney General and I regularly meet the CPS’s director and its chief executive, Peter Lewis, to discuss a range of measures that crucially include resources and its case load mix.
Karl Turner
In discussions the Solicitor General has had with the Director of Public Prosecutions, has she mentioned to him and the Attorney General that the CPS urgently needs £50 million now to prosecute historical sex cases properly? What representations has he made to the Chancellor about that?
The Solicitor General
I wanted to come on to finance and I can reassure the hon. Gentleman that the CPS continues actively to discuss its requirements and resourcing pressures with the Treasury. The idea that somehow there is a nonchalant, sit-back approach to that is wholly wrong.
I hope that the hon. Gentleman is reassured that not only are the pressures understood, but discussions continue at the highest levels of Government with regard to making sure—[Interruption.] I reassure him that when it comes to the prosecution of serious crime, whether terrorism or child sexual exploitation, the question of resources does not come into it. What does come into it is the threshold test that I referred to at the beginning of my speech.
The CPS continues to look at the impact of resource changes and it is working with colleagues in the Treasury as part of the ongoing spending review. It would not be appropriate for me to prejudge the outcome of that review. The debate is timely and I accept that Members are impatient, but that is where we are on the ongoing pressures and risks that the hon. and learned Member for Holborn and St Pancras talked about.
Alex Chalk
On resources, is it not right that where there is a specific need, the Government will step in? There is no clearer example of that than when the Serious Fraud Office had to consider whether it had sufficient resources to go after so-called LIBOR fraudsters and money was found for detailed and complex investigations. When there is a need, resources are delivered.
The Solicitor General
I think my hon. Friend was talking about blockbuster funding and the SFO. It would be invidious of me to make direct comparisons, but that point is very well made indeed.
On finance, I hope to demolish the hon. Member for Kingston upon Hull East’s attractive but somewhat false—I will say colourful—characterisation of the Government’s approach to the CPS budget, which I think he described as a “hope for the best” approach. I am sorry to disappoint him, but that is neither accurate nor fair. As I said, under the stewardship of the hon. and learned Member for Holborn and St Pancras, preparations were made before the 2010 spending review for the CPS to start to reduce its costs by, for example, releasing resources from the back-office at HQ to the frontline; renegotiating important IT contracts to achieve significant savings; introducing a new IT equipment and workstation ratio strategy; and looking at the closure of uneconomic smaller offices.
That all began before the spending review, and those policies have been taken further since then. We have seen the consolidation of operations into regional hubs, the end of occupying unnecessary buildings and the number of CPS geographical areas reduced from 42 to 13 together with a reduction in management numbers. In fact, back-office functions have taken the greatest cut, with a 50% reduction in HQ staff; 20% savings from the renegotiation of the IT and communications contracts, and the estate reduced from 95 offices in 2010 to 40 this year. With respect to the hon. Member for Kingston upon Hull East, that is not “hope for the best” or “back of a cigarette packet” stuff, but a carefully calibrated and planned structural change largely authored and led by the hon. and learned Member for Holborn and St Pancras. That process continues.
When it comes to the prosecution of offences, there is no question of negotiations with the Treasury somehow having an impact on individual decisions; the independence of the Crown Prosecution Service is a self-evident truth. To reinforce that, perhaps I should look at some overall results. The CPS’s conviction rate in the magistrates courts is now 83.5%, which has increased from 80.6% back in 2004-05. Similarly, in the Crown court, the conviction rate is now 79.4%, up from just over 75% 10 years ago.
Guilty plea rates continue to rise in both Crown and magistrates courts and I am struck in particular by the increase by both volume and proportion of convictions in cases involving violence against women and girls. The past year saw the highest ever volume and proportion of cases charged: 88,359 cases, which is a rise of nearly 12,000 compared with the previous financial year. We also saw more than 107,000 defendants prosecuted to completion in the past year in cases involving violence against women and girls—the highest ever number. The number of those convicted increased from 67,380 in the previous financial year to 78,773 in the past year.
Those figures are far more eloquent testimony to the success of the Crown Prosecution Service’s continuing work than anything else that I can summon up. I commend its work to the House and thank once again the hon. Member for Erith and Thamesmead for giving me the opportunity to address that.
Question put and agreed to.
Resolved,
That this House has considered the work of the Crown Prosecution Service.
Unduly Lenient Sentences
Robert Buckland Excerpts(9 years, 7 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Solicitor General (Robert Buckland)
It is a pleasure to reply to the debate called by my hon. Friend the Member for Dartford (Gareth Johnson), and I thank him for allowing this important issue to be aired this evening. In doing so, I pay warm tribute to him for his commitment to reform in this area over a number of years. He came to this House with a wealth of experience in the criminal law in his practice, and he and I struck up a friendship because of our common understanding of the criminal law and our mutual experience in criminal practice over the years prior to our entry to this House. Therefore he speaks with particular knowledge about these issues. But he also speaks as a Member of Parliament, representing thousands of people who, like all of us, expect to see consistency and a correctness of approach to criminal sentencing from the judiciary.
It is right for me to say that Her Majesty’s judges do a tremendous job on the sentencing of offenders; they deal, week in, week out, day in, day out, with a variety of sometimes difficult and complex cases, and it is right for me to thank them for all the work they do. But the issues that my hon. Friend raises are important, because there will be times when errors are made. It is perhaps right for me briefly to remind the House that the unduly lenient sentence scheme, which has been operating for just over 25 years, was introduced, in a way, to deal with that concern. Prior to it, there had been no means of increasing a sentence for any criminal offence once it had been passed by the courts.
The scheme was brought in because of a public outcry over a case that many of us will remember—the Ealing vicarage case. A gang of men broke into the vicarage. There were several victims. The vicar, Michael Saward, was severely injured and Jill Saward was raped. When the four offenders were sentenced some 11 months later, there was a public outcry when the men received higher sentences for the burglary than for the rape. I take the opportunity to pay warm tribute to Jill Saward, who, in the years since, has been a redoubtable campaigner on behalf of victims of sexual violence.
The Criminal Justice Act 1988 introduced for the first time a mechanism by which sentences could be increased by the Court of Appeal. Sections 35 and 36 provide the Attorney General and the Solicitor General with the power to refer sentences passed in certain Crown court cases to the Court of Appeal for review if the sentence is considered to be “unduly lenient”.
Parliament imposed strict safeguards when that power was created. The power had to be exercised personally by the Attorney General, or by the Solicitor General on the Attorney General’s behalf, in relation to indictable only offences or certain either-way offences specified by order, and only where it was considered that the judge had made a gross error in sentencing. Creating a power to correct these grossest sentencing errors was, and remains, the key mechanism to ensure that public confidence in the criminal justice system is maintained when unduly lenient sentences are passed.
It is important to note that it is not a prosecution right of appeal. It is as guardians of the public interest that we, the Law Officers, exercise the power to refer cases. In other words, it is a power exercised independently of Government, but by a Minister. The power to refer a case is subject to an absolute time limit of 28 days from the date of sentence.
A Law Officer considers all cases personally. It is very important that the filter is dealt with by the Ministers themselves. The Attorney General and I feel that that is a vital part of the system. Cases may be received at any point in the 28-day period. Although some cases are referred for consideration by the Crown Prosecution Service, anyone can make a complaint about a referable sentence, including members of the public, and it will be carefully considered.
The power to refer applies to all “indictable” only offences—offences that can be dealt with only by the Crown court—which include murder, manslaughter, causing death by dangerous driving, rape, robbery, wounding with intent, and many others. It also applies to certain either-way offences, which have since been specified and added by order. That phrase means offences that could be dealt with in the magistrates court as an alternative to the Crown court.
The various orders that have been made pursuant to the Criminal Justice Act 1988 were consolidated by an order made in 2006, which ensured that the ULS scheme now also applies to a number of sexual offences, some drugs offences, child cruelty, threats to kill, and offences that have been racially or religiously aggravated.
Most recently, from July last year, we, as Law Officers, have been able to consider whether a sentence imposed for an offence under section 71 of the Coroners and Justice Act 2009 is unduly lenient. I know that the right hon. Member for Slough (Fiona Mactaggart) will be interested in this, because that is an offence of holding a person in slavery or servitude and requiring a person to perform forced or compulsory labour.
However, it is this incremental process of adding offences that has led to the current formulation of the scheme, and I acknowledge that there are inherent anomalies, which my hon. Friend has described very clearly. I shall return to that point shortly. Much more often than not, we decide that sentences referred to us are not unduly lenient. However, I am proud to say that, in referring cases to the Court of Appeal, we have achieved some considerable successes. I am talking not just about the high-profile cases, involving well known offenders such as Stuart Hall, but much more widely.
In one recent case, which I presented in the Court of Appeal—it is an important principle that Law Officers go to court to present cases on behalf of the Government to make the point that the public interest is being served—the offender was convicted after trial of the attempted murder of three sisters from the United Arab Emirates who were on holiday in London. During a burglary of their hotel room, he attacked the women with a hammer, causing life-threatening injuries. The Court agreed with me that the 18 years minimum term of imprisonment was unduly lenient and increased it, so that the offender must serve 27 years before he is considered for release. The presence of children during the serious attack and the use of gratuitous violence with a weapon were among the serious aggravating factors.
In another example, a referral was made in a case involving the sexual abuse, including rape, of a six-year-old girl by a male offender, who was assisted by his female partner. The Court of Appeal agreed that the original sentences were unduly lenient and increased the male offender’s total sentence from 12 to 19 years’ imprisonment. The Court found him to be a dangerous offender and therefore ordered that there be a five-year extended licence period after the 19-year term finishes.
Those are two important examples of cases where great damage has been caused to victims and in which the ULS scheme has played an important role in securing justice for them. There are many more such cases.
The high-profile nature of the ULS scheme in the recent past has meant that the number of referrals has been steadily increasing as awareness of the scheme widens. Very shortly, detailed figures of the latest trends within the scheme will be published, and I think they will show that the public are becoming more aware of, and more prepared to use, the scheme.
The Government will take very careful note of what my hon. Friend has said, and we will set out our plans as soon as is practicable. It is clear that at present there are inconsistencies and anomalies in the scheme, which the extension will seek to address. Both the Attorney General and I are very clear on that point, and we understand the concerns where offences—often serious offences—do not appear in the scheme, seemingly without a clear legal, or indeed logical, explanation.
I recognise that my hon. Friend and, indeed, all my hon. Friends are keen to see the Government make progress on a clear manifesto commitment. I hope I can reassure them when I say that work is very much under way with a view to delivering on that, and that the Prime Minister has been very clear that we will deliver on all our manifesto commitments.
Karl Turner (Kingston upon Hull East) (Lab)
What do the Government plan to do? Are they suggesting, for example, that they would include all either-way offences, or just some? Will they include only serious either-way offences?
The Solicitor General
That is an entirely proper question and we are developing our view. All matters need to be considered and it would be wrong of me to prejudge or ordain the outcome today, but I can reassure the hon. Gentleman. I know that he shares a passion for ensuring that victims of crime are protected. He took important amendments to the criminal law on sentencing though this House in the previous Parliament, and I pay tribute to him for that, but I am sure that he would be the first to understand that there needs to be careful consideration, and that this will be done as soon as is practicable.
Fiona Mactaggart (Slough) (Lab)
Will the Solicitor General consult victims’ organisations about what the scheme should look like, and how will he do that?
The Solicitor General
It would be a bit premature of me to sketch out a detailed version of what could be a consultation process, but I take what the hon. Lady says on board. I think she would agree that we need careful consultation rather than to come up with a glib and easy answer that would not be in the interests of victims. I will bear what she says in mind and will consider the matter carefully as we move through this process.
We must seek to ensure that a balance continues to be struck between a manageable system that enables truly exceptional cases to be referred to the Court of Appeal and ensuring that victims and the wider public, including hon. Members, have an opportunity to raise concerns when they arise. I thank my hon. Friend the Member for Dartford once again for raising this important element of the Government’s criminal justice policy. I hope that he is reassured that we will pay the closest attention to what he and others have said and will continue to say as the Government take forward our manifesto commitment to extend the unduly lenient sentence scheme.
Question put and agreed to.