Immigration Bill
Baroness Hamwee Excerpts(10 years, 8 months ago)
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Lord Best (CB)
My Lords, there are a number of amendments in my name to this part of the Bill but I begin by supporting Amendments 50 and 51, introduced so well by the noble Baroness, Lady Smith of Basildon. All the amendments that I support relate to the proposals in the Bill for landlords to have responsibility for checking the immigration status of their tenants. I declare my interests in social housing and the private rented sector, as in the register. I have every sympathy with the proposition that the relevant clauses should not stand part of the Bill but I recognise that there are other factors here that mean that the Government will not be persuaded to drop this measure altogether. In the amendments in my name I am therefore concentrating on ways in which its impact can be moderated.
Moreover, I have had the benefit of a very useful meeting with the Ministers—the noble Lord, Lord Taylor of Holbeach, the noble Earl, Lord Attlee, and the Minister for Immigration in the other place, James Brokenshire—at which I and colleagues representing both tenants and landlords were able to clarify a number of points. Indeed, my colleagues from the Residential Landlords Association, Crisis, the National Housing Federation, the British Property Federation and the Joseph Rowntree Foundation commended Ministers and civil servants on a number of concessions and clarifications that have allayed some of their fears. Nevertheless, it remains the case that, as I set out at Second Reading and as the noble Baroness, Lady Smith, has emphasised, this new burden on landlords is likely to have a number of unfortunate consequences.
Baroness Hamwee (LD)
I am sorry to interrupt the noble Lord in full flow; I was waiting for a point at which I could come in. I just want to clarify whether he is speaking to amendments in this group; I do not think that it contains any in his name.
Baroness Hamwee
Fine. I thought that the noble Lord was talking to his own amendments that come later on. I am so sorry.
Lord Best
I shall come to them in due course.
The average private landlord will be keen to avoid committing the new offence of allocating a tenancy to someone who is not meant to be in this country, and to avoid being fined up to £3,000. They will want to play safe and not take anyone as a tenant who might just possibly turn out to be an illegal immigrant.
It will not be an offence not to check the status of a potential tenant; it will be an offence not to have checked only if it is subsequently discovered that the tenant is here illegally. So if someone is obviously not an immigrant, there is no need to go through the process of checking them out. How much easier, therefore, to turn away anyone with the appearance of being foreign, including perfectly legitimate applicants, using any number of excuses—most often that the property has already been let. Despite the guidance being prepared by the Home Office on how landlords can avoid acting in a discriminatory way, in those markets of high demand—London, much of southern England and hotspots everywhere—I fear that the Bill could mean that anyone who could remotely be thought to be a migrant will find it very tough to get decent rented accommodation. Frankly, it is difficult enough already for anyone who is not a young UK professional to persuade landlords to take them on. Remember that there are over 1.5 million private landlords, 78% of whom, as the noble Baroness, Lady Smith, said, own just one property; they are amateurs and they are going to be highly risk-averse.
Baroness Neville-Rolfe (Con)
My Lords, I am sorry that prior engagements meant that I missed part of the Second Reading debate and could not speak then on this important Bill, which I support. I start by thanking my noble friend the Minister for the briefing he kindly provided on the residential tenancy provisions. I thank noble Lords opposite for initiating a debate on Clause 15, as it gives me the opportunity to probe the Government’s intentions and the “workability” of the provisions, to quote the noble Baroness.
I come at the subject as a business person, although I should declare an interest as the part-owner of a son’s flat which is currently let while he works out of London. We are asking the landlord community, nearly 2 million of us, to be part of the enforcement service for immigration. This is a new burden, as the noble Lord, Lord Best, has said. I understand that, for 62% of landlords, the required documentation is already available to satisfy the provisions. But that leaves a lot of people burdened for the first time, and required to keep copies and records that they do not have to worry about at present. I suspect that many will not know about the new rules and that they risk a civil penalty—£1,000 for the first offence, £3,000 thereafter— if they let to somebody whose papers are not in order.
I have a fear that the immigration authorities, in order to hit targets, could turn their attention to the easy task of cracking down on landlords who make a mistake, rather than the labyrinthine task of fighting illegal immigrants through the courts. Can my noble friend give landlords, especially small landlords who do not use expensive letting agencies, some comfort on these issues?
This is an important Bill, as I have said, and it is clearly essential that the new provisions are communicated really well. I have two thoughts on this and would be glad to hear the Minister’s reactions before we accept the provisions on landlords in Clause 15 and subsequent clauses. One is to use the web properly. We should place on gov.uk, in one user-friendly place, all the new rules for landlords, wherever they are set out, including the new online checking resource that is planned; briefing on the new biometric residence permits, which will ease landlords’ task of identification; the contact details for the phone inquiry line; and the 48-hour e-mail immigration checking service, which I agree will need to be adequately staffed, as the noble Lord, Lord Best, has said.
A different version could also be provided for tenants, including, perhaps—having listened to earlier debates—students, from whom I believe the paperwork requirements may be relatively light. It would be good for all of those people to know what the rules are and be able to check them in a simple place on the web. With modern techniques, prospective tenants could easily translate this briefing using an online app, obviating the need for expensive advice and lawyers.
Secondly, we should ask the landlords’ associations to prepare model clauses on the new immigration controls to be added to their standard shorthold lease. This would make it less likely that the new requirements were overlooked and the tenant would have to make an undertaking, which would be helpful, for example, in avoiding illegal sub-letting.
Finally, I would like to understand the Government’s intentions on timing, a point which links to Amendment 51 on a possible pilot. I believe that the Government plan to trial the new arrangements in a specific area or areas, which is an excellent idea that I would like to see applied to more areas of regulation. However, what would the timetable look like, and will the Government, as suggested by the noble Lords opposite, feel able to feed back to this House what they have learnt before the new system goes nationwide?
As a supporter of the Bill I am very keen that it should work well and not lead to an adverse reaction by small landlords or a reduction in available accommodation because people do not want to risk a fine or the hassle involved in the new scheme. The money-laundering laws were no doubt good in intent, but the repetitive bureaucracy they have introduced into every aspect of asset purchase certainly comes at a cost which affects UK productivity. I am keen to know whether we have learnt from this experience in establishing this important new regime for landlords.
Baroness Hamwee
My Lords, we have a number of amendments in this group: Amendments 56B, 56D, 56G, 87A and 89. As other noble Lords have said, there must be a pilot. I was glad to hear the noble Baroness, Lady Smith, say that she has come to the view that it should be a single pilot. However, like her, I agree that there is a world of difference between a pilot and phasing the rollout. I have a number of probing amendments in this group and some in later groups. I will deal with particular concerns amendment by amendment rather than speaking generally to the clause stand part.
On the pilot issue, in my mind this is not probing but something that has to happen, and in a single area. We are not talking about different housing markets; all noble Lords who spoke about this are concerned about what I wrote down as “bureaucracy”, although “administrative burden” is the politer way of putting it, is it not? Concerns were also expressed about discrimination and how landlords, tenants, agents, occupants—people who are not tenants in the sense in which we normally technically use that term, but who are actually tenants under the Bill as they are defined—would cope. We are also concerned about tenants and occupants who have a right to be in this country and to rent. “Workability” was the term used, which is very much in my mind. I will not take up the Committee’s time by quoting from evidence to the Public Bill Committee in the Commons, but I, like others, was struck by the sheer number of small landlords there are in this country.
We talked about a pilot, and that pilot needs to be assessed. Of course the public response to a pilot will be the overall assessment, but it occurred to me that we need a more rigorous critique, being clear and careful about the factors to be assessed and evaluated. Our Amendment 56G would require a report before the provisions come into force about the matters which should be assessed and the basis for evaluating their assessment. I have not attempted to spell those out at this point; that is a piece of work that needs to be quite careful and detailed, to be subject to discussion and to be discussed. I have said that a report should be laid before Parliament by your Lordships. I also agree that the code, which must seek to ensure against discrimination, should have parliamentary involvement.
On Amendment 56B, the dangers of discrimination are inherent—that is an issue in itself—also because of the implications for those who are entitled to be in the country and to rent, as well as for everybody else.
Your Lordships will understand that with a name like Hamwee and coming from the background that I do, I knew people whose names were not familiar to landlords when people of my generation were seeking to rent. Unlike the experience of the noble Lord, Lord Patel, when they turned up on the doorstep they were greeted with, “Oh gosh, you’re white!” That is just as bad a discrimination, of course.
I think that there should be a review following the pilot—that may be implicit in Clause 28, but I think that we should say so—and parliamentary process for each revision. Our Amendments 56B, 87A and 89 are not just little wrinkles at the end of the Bill but amount to a substantive amendment to require clear stages to the process. I can also see that we should consider a mechanism for Parliament requiring a view if that is not a review forthcoming from the Home Office, although I thought of that only yesterday.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendments 50B, 51B, 51C, 51D and 54ZA. This group of amendments takes us to the type of accommodation. Amendment 50A deals with a point that has been referred to already—that is, where there is no exclusive right of occupation.
The Minister has referred a number of times to the known unknowns, or the unknown knowns. I think there may be a lot of unknown unknowns in this, and my amendment asks whether the Government are confident that arrangements can work where what comes within the definition of a tenancy is, as we have heard, not what one normally understands to be a tenancy, such as lodgers and all sorts of licences which are not exclusive licences. A lot people live in premises on an informal basis, which is hardly the ideal home, but they may be the only residents, and that is what brings the accommodation into the Bill. Noble Lords have already referred to whether a landlord will go through the checks, whether discrimination will be fed and whether an underground black market will be created. Amendments 55B and 55D, tabled by the noble Lord, Lord Best, address similar points.
The Minister told us not that long ago that there would be a range of penalties. He talked about £80 perhaps going up to £500 for multiple offences and £1,000 going up to £3,000. I am not sure whether I got his words quite correctly, but he referred to something like a proper mechanism for evaluating the level of the fine. I do not know whether he is in a position to say a little more about what the mechanisms for evaluating the level will be. It is clear that the Government have given this some thought. Indeed, it was referred to in the evidence session of the Public Bill Committee by the representative of one of the landlords organisations. She said,
“we do not agree with the proposed disparity in penalties””.—[Official Report, Commons, Immigration Bill Committee 29/10/13; col. 56.]
That is not my point. I just want to get some clarity as soon as we can on this.
Amendment 50B would preclude the Secretary of State reducing the types of excluded—which I find quite a difficult term in this context—premises which do not come within the scheme.
Amendments 51B, 51C and 51D relate to the way in which refuges are defined in Schedule 3. I am delighted that refuges are now within the schedule. My amendments would be refinements. The schedule does not at the moment take account of the fact that costs may be provided by a voluntary organisation or charity. The term is simply “operated”. The Bill states,
“its costs of operation are provided wholly or in part by a government department or agency, or by a local authority … it is managed by a voluntary organisation”.
There are a variety of models. A hostel may be owned by a voluntary organisation and the provisions seem to stand being reread and made as extensive as they are in practice.
Amendment 51D would extend the group of those who might benefit from the provision from being simply those who have been subject to an incident or pattern of incidents of the behaviour spelt out to those who are threatened with or avoiding such behaviour or who might be subject to it. It is looking ahead to prevention, as it were.
I accept that it would be unusual for somebody to flee without actually having been subject to some of the behaviour that is listed here, but I want to ensure that we are as inclusive as possible. No one seeks a place in a refuge. Nor, indeed, would a refuge, the places in which are in short supply, provide a place lightly. We should not add to the difficulties of someone seeking refuge, nor to those of the refuge operator. I should perhaps declare an interest as having been chair of Refuge for some years. I would be concerned if the operators of refuges had to interrogate their prospective clients in the way that this clause might suggest.
Finally, Amendment 54ZA would add holiday and short-term business lettings to the excluded premises. I am probing here because of the amount of administration required; the Minister may disagree with that, given his earlier comments. However, I think that most noble Lords see the Bill as requiring a lot of administration. I hesitated before tabling this amendment, because I would not like to think that it might mean taking the use of accommodation as a home out of the ordinary private rented sector. I mention that in order to try to avoid the criticism, but also to probe the point that holiday and short-term business lettings may be excluded by Clause 15(4), which refers to,
“their only or main residence”.
Perhaps the Minister can help me on that one. I beg to move.
Lord Taylor of Holbeach
My Lords, I shall jump in quickly on this. I hope we can move this debate on because I think I can satisfy my noble friend Lady Hamwee on the points that she has raised.
Amendments 50A and 50B would exclude temporary living arrangements from the scheme and prevent the Secretary of State from removing living arrangements from the excluded list once added. In relation to the first point, I draw attention to Clause 15(4), which sets out that the restriction on letting will apply only to agreements which allow a person to occupy the premises as their only or main residence. Further, Clause 27 provides for the Secretary of State to set out in a code of practice the factors she considers when determining whether someone is occupying premises on this basis, and provide guidance relating to holiday lettings or lettings connected with business travel in particular. In relation to Amendment 54ZA, the Government have no intention of requiring a status check where these circumstances pertain.
Further, while other temporary living arrangements such as hostels and refuges are expressly excluded from the scheme by Schedule 3, excluding other instances of multiple occupations will simply undermine the scheme. I am looking carefully at Amendment 50B. This would restrict the Secretary of State’s power to amend the provisions in Schedule 3 in the future, so that she could not remove a description from the list. It may assist my noble friend if I clarify that the intention of this provision is not to allow the Secretary of State to reduce the scope of the exemptions from the scheme in the future: exemptions have been provided for arrangements which ensure important services can be provided to the vulnerable, and where the restriction would impose a double or disproportionate regulatory burden.
Careful consideration has been given to the drafting of the exclusions, and consultation has taken place with stakeholders. However, once the scheme is in operation the exclusions may need to be amended to ensure that they are and remain appropriately targeted. I am afraid that our experience is that circumstances may change over time and that many illegal immigrants will seek to exploit what they see as loopholes in the law. It is surely appropriate, particularly as the initial phase of rollout is to be evaluated, to allow the Secretary of State to address abuse where it may arise, sometimes of course through displacement.
On Amendments 51B and 51C, accommodation provided by charities or voluntary organisations in the form of refuges and hostels is already excluded. Similarly, Amendment 51D will achieve no more than the draft paragraph already provides in relation to excluding refuge accommodation provided to those suffering from or threatened with abusive behaviour. The Government have taken a great deal of care here and have discussed this paragraph in some depth with two leading organisations that provide such accommodation.
I hope that in light of those points I have been able to satisfy my noble friend. If not, I hope that she will come back to me after Committee so that we have the chance to talk about it. I hope that she will withdraw her amendments.
Baroness Hamwee
My Lords, on Amendment 50B, if the objective is to allow refinement rather than wholesale change, I hope that we may look at refining the provision so that that is quite clear in the Bill. Yes, I would welcome a further word on Amendments 51B and 51C. On Amendment 50A, sadly, some lodgers and some sofa surfers are using friends’ or—I do not know what the term is—lodging-providers’ premises as their only or main residence. That is an outcome of homelessness. Therefore I hear what the noble Lord says about the intention, but I am not sure that it quite meets the point that I am making. However, obviously at this time I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
My Lords, I think that most of us have spent all day trying to catch up and find out where we are. The day started off with a considerable readjustment of groupings, which has meant that sometimes matters which were going to be discussed at one point were discussed at another. I apologise if that has sometimes meant that our debates may have appeared a little disjointed.
I am sure that, in moving this amendment, my noble friend Lord Clement-Jones had not anticipated that I would be in a position to make an announcement. Although he says that it does not meet all the points that Universities UK has suggested, I think that it goes a very long way towards it. At bottom, it succeeds in making it plain that, where the university itself is responsible for arranging a student’s accommodation, be that a student coming to this country for the first time and making accommodation arrangements ahead of time, or a student already at the university who needs accommodation, they will be excluded from any further checks. I believe that this is a considerable step forward. I am pleased that I have had an opportunity to make the point again because throughout these debates we have said that we welcome the brightest and the best students. There is no limit on numbers and we are very pleased to see overseas students coming to study at our higher education institutions.
Lawful students should not be deterred by the provisions in the Bill. We need to make sure that those do not get in the way of them coming to this country. They are not designed adversely to affect students during their stay here. I understand the reasoning behind the amendments tabled by my noble friend Lady Hamwee and spoken to by my noble friend Lord Clement-Jones. We do not want to have to check the immigration status of any person more than once. Educational institutions already conduct checks of students as part of their obligations as sponsors of non-EEA migrants. They have taken a position of responsibility in respect of their students which we would like to reinforce by the amendments that we will bring forward on Report to extend their responsibilities in this regard. If accommodation is controlled by a registered educational institution, we agree that the tenancy should be exempt from any further checking requirement. The Government intend to bring forward an amendment on Report to broaden this exemption to cover a wider range of circumstances where student accommodation is arranged by the university or college.
I know that noble Lords are concerned about other matters and want to talk about other impacts of the Bill on students in general. When we had the previous debate on the amendment of the noble Lord, Lord Hannay, I indicated that I thought it would be good to have a further discussion with him. I want to make sure that we get these matters right, and it is most important that by Report we will have made every effort to do so as a result of contributions made by noble Lords. I hope that my noble friend will be prepared to withdraw his amendment.
Baroness Hamwee
My Lords, perhaps I may raise one issue for the Minister to consider before Report. Before I do so, I should say that I very much welcome the Government revisiting this issue but, as my noble friend Lord Clement-Jones said, it does not sound as if it is going to go as far as we would like.
One of the areas in which we would go further is on whether the premises are within the control of the university or college. We are looking at this matter from the student’s point of view. My noble friend Lady Manzoor, who will jump because I have mentioned her, said to me the other day that she thinks that a landlord needs to see evidence that the tenant is a student for council tax purposes. If that were so, it would go a long way towards dealing with any potential abuse. Can I leave that with the Minister to consider? Perhaps a bit of lateral thinking there might help to reassure the Government as regards the rather more extensive amendments that we are proposing.
Lord Taylor of Holbeach
It may be late but it is not too late to hear an idea that is worth considering, and I am grateful for that suggestion.
Immigration Bill
Baroness Hamwee Excerpts(10 years, 8 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, in moving Amendment 1, I shall speak also to Amendment 4. The group includes Amendments 2, 5, 6, 7 and 8 as well. This is a point at which I feel I should be instigating some sort of cabaret to retain your Lordships. Maybe a tea dance would be more appropriate for this company; I do not know.
Clause 1 provides for a new section to go into the 1999 Immigration and Asylum Act for the removal of persons unlawfully in the United Kingdom. It replaces the current Section 10 of that Act, which is headed, “Removal of certain persons”. That change is significant, and the new section would certainly give rather broader powers. Amendment 1, my first amendment, would require the Secretary of State to give notice of the removal, which should be in writing and give the date and time of the removal. At this stage, at any rate, I have referred to this as the “approximate” time in order to anticipate, and therefore not waste time on, an argument that a plane might be delayed. Talking about time without qualifying it was therefore inappropriate—that is not of course the point of this.
Amendment 4 is about notice to a family member, which new Section 10(6)(c) in effect makes optional. New Section 10 gives powers to remove the individual and family members who are not defined. None of the amendments in this group is about not removing persons who are unlawfully here, which is a different argument, but about who is to be removed and how. The Delegated Powers and Regulatory Reform Committee has expressed concerns about the provisions not being in the Bill. We have of course already seen draft regulations. They are in the pack that my noble friend has arranged for noble Lords to see, which contains a whole group of statements of intent, regulations, codes, statements of fact and so on. I thank him for that. I forgot to take it home with me on Friday but I read it, or the right bits, before tabling these amendments.
The Delegated Powers Committee found it,
“difficult to understand why operational experience should have any effect on who is to be treated as a family member”,
and recommended that the definition in the draft regulations be placed in the Bill. That seems to be an appropriate provision. Draft Regulation 4 requires notice to be given to a family member facing removal, which reflects what is currently in the 1999 Act, but the Bill provides only that regulations “may” provide for that notice. I hope that the Minister can explain to the Committee why this should not be a requirement. It seems an absolutely fundamental point and other noble Lords will have seen briefing to the effect that it has been made by the judiciary as well.
There is also a draft regulation providing that the giving of notice invalidates any leave to enter or remain, in the case of the family member previously held, that is currently in Section 10(8). Again, why should safeguards currently in primary legislation not be included in the Bill?
There are always provisions about service of notices in the draft regulations, although I do not know whether they are usual. It may not be a point for debate in Committee today but I could not help noticing that the draft regulations provide for recorded delivery of the notice that requires signing for, but there is deemed service. There must be a risk, for instance, that someone else in the house will sign for receipt of notice of something that is crucial to the person who may not actually receive it. There are deemed service provisions elsewhere in the regulations.
Less technically perhaps, there are directions for removal ceasing to have effect if the family member ceases to belong to the family. Again, that is a current provision and it would be absolutely appropriate for it to be in the legislation. In the Commons Committee, the Minister gave a number of assurances. Of course I accept them, but Governments change, as sometimes do regulations as well.
I cannot recall if the sword of Damocles fell at the end of the tale, but I am concerned about how long it may hang—perhaps for a very long time—and whether it may hang at all over a family member who has a right to leave, enter or remain in the country in his or her own right. This group extends further than these two amendments. Although we may appear to be starting the Bill almost half way through the journey—in the philosophical as well as the practical sense—that someone seeking to enter or remain in our country will make, these are very important issues. I beg to move.
Baroness O'Loan (CB)
My Lords, I wish to speak to Amendments 5, 6 and 7 in my name, and in that of the noble Baroness, Lady Lister. I speak as a member of the Joint Committee on Human Rights. These amendments were recommended in the eighth report of that committee on the legislative scrutiny of this Bill. Following the Government’s response to the committee, it produced a further legislative scrutiny report and again recommended these amendments.
The intention in Clause 1 is very simple: to simplify processes for removing people who are in the United Kingdom unlawfully and provide for removal of members of the person’s family, which provides a new Section 10 to the Immigration and Asylum Act 1999. The question of which member of an individual’s family can be removed following the removal or planned removal of an individual is to be decided in accordance with a number of policies. For example, a family member who has been a victim of domestic violence in accordance with the definition in the Immigration Rules will not be removed. Similarly, a member who is no longer in a family relationship will not be removed. There will undoubtedly be debate in your Lordships’ House about who can and cannot be removed under these provisions. Of course, the Government have stated that removals will be in accordance with existing immigration law and our international obligations.
Lord Ramsbotham
Following what the most reverend Primate said, perhaps I may say how pleased I was to hear the use of the word “better” just now in terms of oversight. I ask the Minister to accept that, hard- working though they may be, case workers have not been very good at their task and neither has there been oversight. If they had been and there had been oversight there would not have been this endless history of problems and complaints for years and years, which have been ignored. The time has come for that ignoring to stop. Therefore, I am relieved to hear mention of better oversight.
Baroness Hamwee
My Lords, the critique of what happens in practice from someone experienced as an inspector has clearly resonated around the House. We have already talked during the passage of the Bill—and I am sure we will talk again—about the importance of practice. Whatever is on paper, whether in the Bill or in regulations, is a precaution against bad practice, but it is the good practice that is important. Given the Minister’s assurances about coming back at the next stage, more formally we hope, with responses in the form of amendments to the comments of two committees, it would obviously be inappropriate for me to spend very long at this stage responding to the points that have been made. However, I will say that, like others, I read between the lines: three days does not seem very long in which to decide what to do about a decision that has been handed down and to make arrangements. But there we are.
The Minister suggested that my first amendment would reintroduce complexity. I was actually seeking to provide more clarity. When he referred to there being a provision somewhere else in the raft of immigration legislation that deals with notice in writing, I could not help thinking that consolidating all this legislation has defeated Government after Government, but it is something that is sorely needed.
I make one perhaps tiny point just to clear the undergrowth before the next stage. The noble Lord referred to Clause 67 of the Bill as providing for the negative procedure. I would have thought that it was the regulations and orders section in the 1999 Act—which actually takes us to the same point as it being negative—that would apply as Clause 1 is replacing a section of the 1999 Act. It would be helpful if before Report we could understand what the relevant provision is so that those of us who might be minded to suggest amendments know that we are proposing amendments to the correct section or clause. However, I am glad that we will have amendments on regulations which the Minister talks about as changing policy. Regulations set policy before it gets changed by subsequent regulations. That is what many of us are concerned with. I beg leave to withdraw Amendment 1.
Baroness Hamwee
My Lords, I welcome these amendments. There is frequently talk in this House, and rightly so, about caring for the interests of children, reference to Section 55, the paramountcy principle and so on—but sometimes it is easier to say it than to put it into practice. These amendments articulate the practice and are about more than just principle.
In 2009 I was refused a visit to Yarl’s Wood by the Home Office. I never discovered whether I was thought to be subversive or whether I was thought likely to be someone who might attempt to spring a detainee, but I have visited Cedars. Yes, it is for detention for the reasons we have heard, but it is also about caring for people and preparing them for return. Having seen the facilities there and talked about the work that goes on, I have to say that the Cedars centre is a great deal preferable to scooping up a child and putting them straight on a plane out of the country. The care that is given and the thought that goes into the preparation impressed me very much. When I was there, I asked about the boundary wire round the premises. Although it was quite inconspicuous, it seemed to give the feel of detention, and I had observed it going in. I was told that it was to keep out local troublemakers.
I have a number of questions. One is about allowing one parent to be returned within the 28-day period, which might mean that a family is split and a child is separated from one parent. Will my noble friend tell the House about the circumstances in which separation would occur? Secondly, subsection (2)(b) of proposed new Clause 78A talks about a single parent or a carer. Is a carer a local authority foster parent? What is a carer in this context?
As regards the family returns panel, will my noble friend give the Committee assurances about how its independence will be assured? Secondly, for reasons that I think will be obvious, will he give assurances about whether the individuals concerned will have a means of giving information or making representations to the family returns panel, or checking that the information that it receives from others is accurate? These are important provisions.
As regards unaccompanied children, other noble Lords may remember the very effective and impressive Member of this House who died some years ago, Baroness Faithfull—Lucy Faithfull. I recall her talking about meeting an unaccompanied child arriving from, I think, Somalia. She told the story of having gone to Heathrow to meet this child in a social work capacity with a bar of milk chocolate to give to the child as a present. This child had never encountered milk chocolate before and was really scared about what she was being asked to eat. That story has remained with me as an example of the cultural gulf that has to be crossed and the hard work needed in dealing with children who arrive here unaccompanied.
In what circumstances is this provision used and what change in policy does it indicate? We have had confirmation that multiple 24-hour periods will not be applied, but will my noble friend say something—I do not know whether I missed it—about monitoring the use of the provisions and publishing data on the number of occasions, the circumstances and the length of time an unaccompanied child is detained, and so on?
Lord Ramsbotham
My Lords, I, too, pay tribute to government Amendments 10, 14 and 15; 10 because of the Independent Family Returns Panel about which the noble Baroness, Lady Hamwee, spoke. I agree with the importance of independence. There is no doubt that the Independent Family Returns Panel has made marked improvements to the process since it was formed, and that it is very well led and well worth listening to. I commend the coalition on the determination with which it has pursued the detention of children. Having served on the advisory board early in 2010, soon after the election, I am glad to see this clause in the Bill.
Finally, I am very glad to see the place of detention at Cedars, and I commend Barnardo’s for the way that it has conducted the care of families who have been in that place.
Baroness Hamwee
“Presumption of liberty
(1) In the event of an application for bail from detention, an immigration office or the First-tier Tribunal must release the detained person on bail unless the First-tier Tribunal is satisfied that there are substantial grounds for belief that if released the person would—
(a) fail to comply with one or more of the conditions of bail or of any recognisance or bond, or(b) while on bail commit an offence which is punishable by imprisonment.(2) In subsection (1), “detention” has the same meaning as in Schedules 2 and 3 to the Immigration Act 1971.”
Baroness Hamwee
In moving Amendment 16 I shall speak also to Amendments 20 and 21, and included in this group are Amendments 17, 18 and 19. The first of the amendments sets out a new clause headed, “Presumption of liberty”, which covers exactly what it says. I find the term “bail” quite difficult in this context, with its connotations of the criminal justice system. Detention—or imprisonment, to be blunt about it—should require a positive decision: the rebuttal of a presumption, if you like.
The amendment may read as if I am introducing a philosophical debate, which I suppose I am, but in a rather less high-minded way I am seeking to put into the legislation what is set out in chapter 55.1.1 of the Home Office manual, Enforcement Instructions and Guidance, which states:
“The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used”.
I hope that the Minister will not argue that this is invariably followed because, like other noble Lords, I am sure, I have been given a number of examples of detention where it would be hard to argue that that is so. We are told that the UK detains people for longer than any other European country. As of July last year, 27 people had been detained for between 18 and 24 months, 11 for between 24 and 36 months and one person for up to 48 months. In December last year, some 220 people had been detained for more than six months. Many people are now detained in prisons where detention tends to go on for longer periods.
There are also a number of examples of inappropriate detention. Here I turn to my second amendment, which concerns the detention of people with mental illness. I say “inappropriate detention” as being what might be called a commensurate judicial criticism of their treatment and findings that the detention of people who are mentally ill is unlawful and breaches their Article 3 rights. I do not doubt that there will have been cases we do not know about which were settled before a full hearing, as happens a good deal in this area.
Lord Taylor of Holbeach
I hope that the examples I have given show that these are not trifling matters. Deterioration in a person’s mental health or a family bereavement are changes in the circumstances of the applicant which would mean that the Secretary of State was able to make an immediate decision without it having to go back to the tribunal for a bail hearing. This is the Secretary of State using her executive power to ensure that in circumstances where people are significantly disadvantaged by a change in their conditions the matter can be resolved. If the noble Baroness wishes me to elaborate further, I shall do my best to explain it to her in writing so that she has something more positive than just a few scattered notes from which I am addressing her.
Amendment 19 would have the effect of creating many unnecessary bail hearings in the tribunal, increasing the inefficiency and complexity of the system. An individual can still apply for immigration bail at any time or challenge the legality of their detention by way of judicial review. A significant number of individuals are released on bail by the Home Office without the need for a bail hearing—we have just heard examples of why that is so—and so to mandate a requirement in primary legislation to require bail hearings to take place will unnecessarily increase the number of hearings and will slow the system and add complexity.
Amendments 20 and 21 would make two changes. First, they would limit judicial discretion to maintain detention of those who are suffering from mental health concerns or of those who are under 17 where the judge considers immigration detention remains appropriate for their own or, in the case of those with mental health concerns, others’ protection. Secondly, the amendments would remove the requirement for repeat applications made within 28 days of a previous application where there has not been a material change in circumstances, made under the bail provisions in Schedule 2 to the Immigration Act 1971, to be decided without a hearing.
Published guidance provides that certain categories of people are considered unsuitable for detention in the first place unless there are very exceptional circumstances in play. Unaccompanied young people under the age of 18 and those suffering from serious mental illness which cannot be satisfactorily managed within detention are specifically listed as case types that should be detained only in very exceptional circumstances. However, there will always be cases with very exceptional circumstances which mean that detention is appropriate. An example may be when it is necessary for detention to continue while an individual is being or waiting to be assessed or awaiting transfer under the Mental Health Act. We may also need to hold unaccompanied children where, for example, it is in the public interest because of a risk of reoffending or a risk to national security. They may also be held for a very short period either on arrival pending collection by social services or when we are trying to remove them. In any decision to hold an unaccompanied child, we will consider our duty to safeguard and protect the welfare of children.
The noble Lords’ amendment would prevent a judge in a bail hearing from considering if very exceptional circumstances are in play and would require judges to release individuals even where there is the real possibility that this will put them into a more vulnerable situation or where they clearly pose a threat to themselves or others. Amendment 21 seeks to remove the requirement for the Tribunal Procedure Committee to change the rules to require repeat applications to be disposed of without a hearing, thus undermining the Government’s proposals. It would also allow the current inefficient bail processes to remain in place.
However, I have listened to the points made by noble Lords in this debate. It has been a good debate about a very important aspect of the provisions of the Bill. I will consider those points before we return on Report. In the mean time, I ask noble Lords not to press their amendments.
Baroness Hamwee
My Lords, other noble Lords have spoken very effectively about the impact of detention. I will just mention again the first of the amendments in this group, which is on the presumption of liberty. As we heard, a presumption of liberty is already something that judges would consider almost automatically as a matter of instinct. Of course, the drafting of the amendment could be tweaked but we are only at Committee stage. However, subject to reading Hansard and the Minister’s confirmation that the Government will consider the points before the next stage—I know he made no commitment and I would expect no less of him than that he would consider what has been said—I think that a presumption of liberty is so important that is should be in statute. Guidance can be changed. I would like to see the matter put absolutely beyond doubt. I appreciate that the amendment might have elephant traps in it—amateur amendments sometimes do. Of course, at this moment, I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, when I looked at Clause 5—“detained” or “liable to be detained”—the question that arose in my mind was, “How do you know someone’s liable to be detained unless all the processes including any appeal rights have actually been pursued?”. I have two amendments in this group. Amendment 23 would leave out the second part of the new subsection (1A) introduced by Clause 8. The provision in Clause 8 is that biometric information means,
“information about external characteristics (including in particular … )”.
Paragraph (b) then refers to,
“any other information about a person’s physical characteristics”.
Well, what could those be if they are not the external physical characteristics in subsection (1A)(a)? I cannot imagine that they are internal physical characteristics. I am quite confused about what subsection (1A)(b) might mean when read with subsection (1A)(a). That is quite apart from the fact that I have a rather natural and automatic dislike for not spelling out on the face of the Bill anything that could be spelled out.
Amendment 24 would take out of new Section 8(3)(c) introduced by Clause 10 the reference to “injury”. We are told in subsection (3) that the regulations may include provision to be used for certain purposes, of which paragraph (c) is,
“in connection with identifying persons who have died, or are suffering from illness or injury”.
I assume, and I hope the Minister can confirm this, that the reference to death or illness is because of public health considerations. Why then is it necessary to refer to injury? I would be interested to know what purpose this is to serve.
Earl Attlee
My Lords, Clause 5 amends paragraph 18 of Schedule 2 to the Immigration Act 1971 to include persons who are liable to be detained. This will allow immigration officers to check the fingerprints of persons they suspect to be illegal immigrants where there is a question about their identity. The existing power allows for fingerprints to be taken only from persons who have been detained under immigration powers.
The ability to establish an identity is an essential requirement for immigration officers when undertaking immigration enforcement operations. Unless identity is established it is not possible to remove or deport illegal immigrants. At present, where immigration officers encounter people whom they suspect to be illegal immigrants and have doubts about their identity, they can check the person’s fingerprints only with their consent or following the person’s arrest. In some instances this can lead to unnecessary arrests or result in illegal immigrants not being detected. In answer to the noble Lord, Lord Rosser, surely the Committee does not want innocent people going about their lawful business to be arrested. Secondly, if the suspect does not appear to understand English, how can they give informed consent to have their fingerprints taken?
This power is intended to reflect the conditions under which the police operate. Prior to the changes made to the Police and Criminal Evidence Act 1984 in 2005, the police also needed consent to check fingerprints where a person had not been arrested. The amendment has enabled the police to make fingerprint checks without the need to arrest individuals who are suspected of committing a criminal offence and whose identity might otherwise not be readily ascertained or verified.
This clause will bring immigration officers’ administrative enforcement powers more into line with police powers. The power to check fingerprints will be limited to the purpose of verifying identity as part of an immigration enforcement investigation. The fingerprints will not be retained but rather immediately electronically checked against the immigration biometric database. If there is an existing record, this will confirm the person’s identity and potentially assist the immigration officer to ascertain the person’s immigration status. This will help avoid unnecessary arrests, allowing those legitimately in the UK to go about their business, while quickly identifying illegal immigrants.
I want to assure noble Lords that this power does not mean that immigration officers will be able to stop anyone they encounter. The person required to provide fingerprints for checking must be liable to detention under the immigration Acts. In practice this means that the immigration officer must have reasonable grounds for suspecting that they might be liable for removal from the UK. There will not be any blanket testing of people just because they look foreign. I hope that answers the question from my noble friend Baroness Hamwee about the term “liable to detention”. As I understand it, it is not a new term.
Clause 6 is intended to improve the levels of assurance about persons naturalising or registering as British citizens and to ensure that the identity of British citizens who apply for their first UK passport can be properly identified. Amendment 22 would weaken these proposals.
The power is intended to protect new British citizens from having their identity stolen by impostors by enabling a photograph submitted as part of a passport application to be checked against the new citizen’s record. If we destroy new citizens’ photographs before they obtain a passport, HM Passport Office would be less capable of confirming their identity. It would also expose HM Passport Office to fraudulent applications for British passports.
As observed by the noble Lord, Lord Rosser, over 90% of new British citizens make a passport application within one year, so very few new citizens will have their photograph retained for more than a year. I accept that this will result in a small minority of new British citizens who decide against applying for a British passport having their photograph retained for a longer period as a consequence of these provisions. However, retaining the photograph will be useful to them in protecting their identities. In particular, new British citizens who retain their other nationalities may opt to have a certificate of entitlement affixed to their non-British passport instead of obtaining a British passport.
This document is a right of abode vignette—passport sticker—that can be issued to, in addition to British citizens, certain other categories of Commonwealth citizens who have a right of abode if they have not ceased to be Commonwealth citizens. It contains a photograph of the holder, which needs to be checked against the photographs that the person may have previously submitted as part of an immigration or nationality application. Holders of valid certificates of entitlement are not allowed to hold a British passport at the same time.
Baroness Hamwee
My Lords, with regard to Amendment 23, the Minister is of course right that there is a reference further on in the new subsection that refers back to what I was seeking to take out, so my amendment is not complete. However, by mentioning that, he has drawn my attention to something else that I would like to pursue. New subsection (1B) says that an order under paragraph (b), which is about other information subject to an order by the Secretary of State,
“may specify only information that can be obtained or recorded by … external examination”.
That raises the question of whether only external examination can be used for new subsection (1A)(a), concerning,
“information about a person’s external physical characteristics”.
Perhaps he can confirm that there can be only an external examination to obtain information about the first limb in (1A).
The Minister talked about new technology, which I assume comes within the word “information”. My concern was to understand what physical characteristics there might be that were not included in (1A)(a). I accept that technology will advance, but it is what the technology is being used to identify and gain information on that concerns me. This may sound tedious but it is actually quite important. I do not know whether he is able to take the matter any further tonight; if not, I would be glad to pursue it after this stage.
Lord Rosser
Perhaps I could add one or two comments. I thank the Minister for his reply and for the amount of information contained in it. I think that I recall him saying that “liable to be detained” was not a new phrase, but I am not sure how extensively it has been used before in immigration law.
I listened carefully to what he had to say about the situation of those whom immigration officers would not want to arrest. I will read his response carefully in Hansard, but at the moment I am not entirely clear what happens when someone whom they do not want to arrest declines to enable their fingerprints to be checked. I am not sure whether they will just be allowed to go or if in fact they will be arrested, which raises the question of why the existing powers are not adequate and why this new terminology is needed. As I say, I will read very carefully what he had to say.
Finally, I asked how many cases there have been in the past 12 months of people who would have had their fingerprints taken and checked if the “liable to be detained” provision in the Bill had been in force who could not have their fingerprints taken under the current wording in the Immigration Act 1971. I was not particularly expecting the Minister to come up with an instant response, but since that calculation is presumably the justification, at least in part, for this change in legislation that we are considering, I hope he will be able to provide me with an answer to that question later on.
Earl Attlee
My Lords, there would indeed be an element of suspicion if someone declined to give their fingerprints to be checked, but I suspect there would have to be other evidence as well. I will write to noble Lords to clarify these points.
Baroness Hamwee
Will the Minister include an explanation of the statutory basis on which new subsection (1A)(a) can be obtained by external examination only? I do not doubt what he says, but the way the provision is worded raises the question.
Baroness Hamwee
My Lords, I have Amendment 80 in this group. I was prompted to table it following the discussions to which I have been party about the importance of students to this country.
While entirely agreeing with the thrust of what has been said so far, I have concerns about Amendment 26. It would have the effect of excluding—or including—a particular group that would retain a right of appeal. The new Section 82(1) would allow appeals by individuals in certain circumstances, but the noble Lord’s amendment would allow all those to whom he has referred—essentially all students—to retain the right of appeal. Students and universities are an obvious, vocal and important cohort. They have a voice that others affected by Clause 11 do not have. There will be individuals who are substantially affected as individuals, over a range of circumstances and issues. I would be concerned about picking out a single group for whom to retain a right, without considering carefully what that would say to all those other people who will be affected by this clause. There may also be practicalities which I shall not go into.
The noble Lord, Lord Hannay, said that many of our committees have said: “Please treat students not as economic migrants”. I do not doubt what he said but wonder whether we are being asked not to treat them as economic migrants or not to regard them as economic migrants. They may have slightly different meanings. However, I am absolutely convinced of the importance of the international links to which my noble friend Lord Maclennan referred. I am concerned about all the reputational issues for the UK that would flow from perceptions—we may be told that they are only perceptions but they are important—if we were thought not simply to accept students but to welcome them and seek for them to come here.
I am also concerned about what seems to be a lack of good marketing. We are told by the Government that students are welcome, but there is a problem in terms of promotion. Therefore, given that so much of the debate is actually about the number of immigrants and including students in total immigration figures, it would be right to pursue the issue regarding the number of students. We should seek not just to disaggregate the numbers, because I understand that that is done at the moment. However, that issue gets no coverage. We should be taking positive steps to make sure that it is understood how the numbers break down and that we do not prejudice ourselves by including student numbers in the total numbers and then finding that for whatever political reasons there is a target for reducing the total numbers, and the students get swept up in them.
I appreciate that there is the UN obligation and that the numbers are dealt with by the ONS and it is, in a sense, not up to the Government to publish separate figures. I know that those figures are there but they take a little seeking out and certainly do not get the promotion and exposure that they would if we were to have a debate based properly on numbers, rather than a debate that is based to a large extent on prejudices.
My Amendment 80, to which my noble friends Lord Clement-Jones, Lady Brinton and Lady Benjamin have put their names, would provide for an annual report by the Secretary of State on study-related immigration. I am sure that the amendment, which very much has amateur drafting, is riddled with technical flaws but its thrust is that we should be able to see annually,
“the number of applications to enter the United Kingdom on student visas”,
the number of applicants who actually come in on those visas, the number rejected, and an estimate of the number of people who have held a student visa who have left. We will, of course, be considering the issue of embarkation checks at the end of the Bill but one of the big holes in all the consideration of these issues is that we do not know who has gone. We also need comparative figures for other managed migration. We need this information in order to thoroughly understand what is going on. The lack of understanding is feeding a position that is entirely unhelpful.
The noble Baroness, Lady Smith, spoke to amendments regarding appeals and mentioned the proposal for an administrative review. I have an amendment on administrative reviews but it is not in this group and we will come to it on Wednesday.
Lord Tugendhat (Con)
My Lords, I very much agree with everything that the noble Lord, Lord Hannay, said and I am delighted that my name should be attached to his amendment. I shall not therefore repeat his powerful arguments but should like to add just one further thought.
As everyone in this House knows, the United Kingdom is second only to the United States in terms of the number of universities that it has in the top group of the world’s universities, not just in absolute terms but in all kinds of important subject areas such as engineering; figures last week showed that Cambridge, Imperial College and Oxford were still in the very top group. That was as much as the rest of Europe put together was able to provide.
There are many reasons why British universities are in the top group of world universities but one is that there is a free market in talent that enables them to attract it from all over the world, not only in the students but in the teaching staff. To some extent, there is a chicken and egg factor here. They are great universities partly because they can attract talent from all over the world, and because they can attract that talent they remain very good universities.
There is a similarity between the university world and financial markets. Neither of them is purely national. Both are totally international with seamless connections across the world. Therefore, if you try to turn us into an island and cut us off from this stream of talent that is crossing the world, you will do great damage to British universities. It will not show up in the short term, as the noble Lord, Lord Lea of Crondall, just pointed out. These things take a long time to show through. But it will very seriously damage over the long term the ability of the greatest British universities to remain in the top group—and not only them. For 15 years, I was chancellor of the University of Bath, a university that was founded less than 50 years ago. This has nothing to do with me because the outstanding vice-chancellors that it has had deserve the credit, but in the past 20 years the University of Bath has moved from obscurity not only into the top group in the United Kingdom but now into a number of world league tables as well. That is because it has both a student body and a faculty that are drawn from all over the world. In fact the previous vice-chancellor was American. It has had people from the Far East, North America, South America and all kinds of places.
I beg Ministers to consider the fact that clauses such as this one that we are seeking to amend have a deleterious effect on the ability of British universities to perform adequately on the world stage. We do not have so many institutions, so many industries and so many spheres of our national life that are indubitably regarded as absolutely among the best in the world. Universities are one and it would be extraordinary to kick them in the shins.
Lord Wallace of Tankerness
I did not seek to dismiss this as a statistical matter. I sought to put it into some kind of context: that over the period we have been talking about the drop was less than 3,000, and other countries saw a drop as well. The important point, which I will repeat, is that this country welcomes the brightest and best and there is no limit on the number of overseas students who can come to study here.
My noble friend asked whether students who receive visas go on to use them. All genuine students who qualify will be issued with a visa for the United Kingdom but of course they may ultimately decide to study elsewhere. I know that it may be of interest to my noble friend how many students may go to the trouble of applying for a UK visa and then choose not to travel, but I regret that that information is not available to the Government. I am afraid we cannot meet all her requests but a substantial number of the things that she was seeking in her amendment are already there.
Baroness Hamwee
My Lords, I accept that and I knew that much of what I was seeking was already published. My amendment tried simply to paint the whole story. I accept that some of the painting by numbers cannot be filled in.
A few minutes ago my noble and learned friend said that there is a good story to tell. My short point is: we need to tell it. It seems that we are not telling it and I would like to find a mechanism to get it told. I passed my noble friend Lord Clement-Jones a copy of the Home Office press release that I printed off on Friday. If I were a journalist it would not tempt me to write the good story.
Hillsborough
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Lord Taylor of Holbeach
I am most happy to take that back to the Home Secretary. I am meeting her this afternoon, in fact, and I will carry that point home. This certainly was not the press’s finest hour but, having said that, I am sure that we all cherish the fact that we have a free press in this country. However, this was a situation where, as the Statement said, the conduct of the press exacerbated a grievous situation.
Baroness Hamwee (LD)
My Lords, I welcome the Statement and the fact that the Home Secretary has chosen to make it in what I might call an unprompted manner: I think the Minister will understand what I mean. He referred to the importance of process. Perhaps I might ask him about the reference group, which I understand has been set up by the CPS, the IPCC and the investigation team to ensure the families’ rights under Article 2 of the European convention. I am sorry that I was not able to give notice to my noble friend of this question. I understand that the reference group is to monitor the progress of the investigation. That seems to raise the question: what powers may it have?
If I am giving time for inspiration by asking a second question, I hope that will be helpful. My second question is with regard to the IPCC. There was concern about the resources available for this substantial piece of work, both in itself and for any knock-on effect on the rest of the IPCC’s activities. Can the Minister tell the House whether the IPCC is as happy as one might reasonably expect it to be with the resources available, both for this investigation and the rest of its work, given the burden that this must be on it?
Lord Taylor of Holbeach
This is by far the largest investigation that the IPCC has ever been involved in. Right at the beginning, the Home Secretary wanted to emphasise that this was a priority that needed proper resourcing. I have no doubt that the resources are available to get to the truth of this matter. The challenge panel, which was mentioned in the Written Ministerial Statement on 19 December, is working well. There were a number of helpful discussions over the summer between the investigatory and prosecutorial authorities and the families to establish the best way of ensuring that they are kept up to speed with the various ongoing investigations. These discussions were chaired by Bishop James Jones. It is not so much that the reference group actually has, or even needs, power. The power lies in those bodies which are working together with the reference group. They are the people who actually have the power to pursue the inquiry and, further to that, to effect prosecutions if necessary.
Immigration Bill
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Baroness Hamwee (LD)
My Lords, is there any area of policy more prone to misinformation and misrepresentation than immigration? As the Minister said, one of our tasks in looking at the Bill will be to be clear what it is and is not about. We also have a number of other objectives, including scrutinising and questioning the whole spectrum from probing to opposition and from seeking assurances on issues of concern to ensuring that what we end up with is workable in practice. I suggest that we have another objective, which is to provide leadership on the issue of immigration. I say that because immigration is so often a proxy for xenophobia and discrimination and it behoves us to argue for what we regard as morally right and to concern ourselves also with why the subject of immigration provokes such intense reactions. We need to unpack what underlies the hostility and sometimes the fear.
It appears that although very many people say that immigration is a problem, far fewer regard it as a problem in their own area. There is considerable overestimating of the numbers of migrants, and of the numbers of migrants claiming benefits, so leadership must include bringing reality and perception a great deal closer. One of the realities is the enormous benefit Britain derives, and has derived, from migration. I have always disliked the term “brightest and best”, because it implies some sort of narrow limited categories, but I am in no doubt that migration is important for Britain’s success. In an interconnected world, Britain will be best placed as a country of one society but many cultures. So I abhor some of the rhetoric that we hear, and am distressed by some of the messages taken from that rhetoric.
This is one of those Bills where it is impossible at this stage to cover, or even refer to, all of the issues. Nor is it possible to do justice to the considerable amount of briefing that we have all received. Through the medium of Hansard I say to all those who have contacted us that not repeating their points does not mean that they are ignored. The detail will come in the days to follow, and my Liberal Democrat colleagues—there are 12 or 13 of them—will be among those who will deal with different issues both today and during the course of our debates. As so often, it is the practice as well as the policy which is important. Your Lordships have already touched on this. We know that the Government are well aware of the importance of improving the standard of service—because it is a service—as well as the mechanics of border control and all aspects of immigration.
I do not imagine that it is a lot of fun working in the Immigration Service. Upskilling, and recognition of the professionalism needed, could go towards better decision-making. We require immigration officers to deal with high volumes, high stakes and constantly changing rules. Every noble Lord will have heard tales of poor decisions which have caused at best, delay; at worst, considerable distress and injustice. Capturing useful and accurate data is obviously important in itself and because of the misperceptions to which I have referred. It will take a while for exit checks to give a full picture of who is here, who is leaving and what they have done in the mean time. This is not least because people’s activities change over the years. However I very much welcome the progress on this score.
The presentation of data is also important. Student numbers, we know, will be an issue. I am one who regards the education sector as a very important export. We import students, but we export contacts, networks and reputation. We are required, internationally, to include students in the overall numbers, but I understand from discussion with the Minister that we publish student numbers separately. Those in a position to be clear about immigration do not seem to be energetic in trying to ensure the disaggregation of the figures. The disaggregated figures do not get the media coverage which would help us all.
Still on the theme of reality and perception, one point I want to make on health charges is the importance of not deterring people from seeking care and treatment to which they are entitled. This is because the message is inaccurate. The headline is the levy. This is a comparatively small charge, not requiring complicated administration, and is a good deal lower than any insurance premium than I have ever come across. But we need to look at what the entitlements are, at fairness and effectiveness, including ensuring accessibility for vulnerable individuals, and public health concerns. Migrants do not usually fit neatly into a couple of easily dealt with categories, and the most vulnerable, the most in need of healthcare, are likely to be the most easily deterred from seeking it.
Early proposals for the health service were cumbersome, bureaucratic and thought likely to give rise to more problems than solutions. It is fair to say that the Bill has gone a long way towards giving assurances on all of this—indeed there have been changes in the progress of this. But it is also fair to say that we have a way to go on giving reassurances regarding residential tenancies. I welcome the piloting of the provisions—and I do mean a pilot—with evaluation and assessment, not simply the first phase of a predetermined rollout. I would be interested to see how the nationwide pilot to which the noble Baroness referred would work. Evaluation must extend to the unintended consequences, which may easily mean driving underground people who are too easily exploited.
There is a lot in this Bill for our lawyers and for everyone concerned with human rights to get their teeth into—and there are some real terriers among them. I have long thought that an immigration system that requires so much legal assistance is not a good one. Greater simplicity and clarity must be desirable, but whether the change to the appeals system falls on the right side of the line is something that we will have to test. To me, it is logical to use review rather than appeal if review gets the job done—assuming that it is not properly done in the first place. But we need to understand how administrative review is both different from and better than the current arrangements. I note, of course, that appeals currently achieve a very high success rate, which must say something. We will discuss, too, out-of-country appeals. It must be more difficult to ensure justice when communication is more difficult. The rationale for changing the appeals regime is to rationalise and simplify it, which is not the same as reducing rights.
I am quite sure that the Bill will not do the courts out of a job. Some of the rhetoric around this that I find offensive is the criticism of lawyers—but perhaps I would say that. I do not want to go too far in questioning the phrase in the new clause on deprivation of citizenship,
“seriously prejudicial to vital interests”.
I had thought “vital” was about life and very existence, but I shall not question that too closely because I do not want to suggest lowering the threshold for executive decisions when innocence is not presumed. As well as the central proposition we will want to understand the consequences of such decisions for the individual and his family, both legally and practically, and how the decision will make the individual less of a threat.
There are many areas where humanitarian and cost considerations coincide, and immigration detention is one of them. I was intrigued to read of the Swedish model, based on engagement rather than enforcement, with apparently a very high rate of voluntary return and financial savings. On the theme of what is right, I look forward to statutory provisions regarding child detention. I want to put on record how impressed I was when I visited Cedars by the obvious good work undertaken there by Barnardo’s, which has my admiration for having taken that work on. It cannot have been an easy decision for that charity. This House can be relied on to concern itself with everything that affects children.
My final topic for today concerns both children and adults. The Minister will not be surprised that I take the opportunity of the Bill to raise again the family migration rules introduced in 2012 with new financial thresholds for sponsoring the entry of non-EEA partners and elderly dependants. There is an extraordinary range of circumstances in which British citizens and taxpayers have found themselves, maintaining relationships through Skype, if they can, and the impact on children separated from parents would defy even those who feared the worst when the rules were introduced.
People who come to our country do not fit a single picture. The irregular migrant population is a very diverse group. Some are in low-paid occupations in the informal economy, while some contribute far more to the UK economy through labour, taxes and spending than they take out in services. Who are illegal immigrants, of course, begs the question of what we choose to make illegal.
This may not be a Bill that either coalition partner would have chosen if left to itself, but I end by repeating that, on this multifaceted area of policy, the reputation of the UK—whom it welcomes and whom it protects, including the indigenous population—as well as the language and rhetoric that it uses are at stake.
Police: Private Prosecutions
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Lord Taylor of Holbeach
Yes, indeed—I hope I have given the House an assurance that we take those remarks seriously.
Baroness Hamwee (LD)
My Lords, I am sure that the Minister agrees that trust in the police is absolutely essential. To be trusted they need to be trustworthy, and to be trustworthy they need to be seen to be trustworthy.
Lord Taylor of Holbeach
My noble friend is right about this. The public expect the highest level of professionalism and integrity from the police. Next month will be the first anniversary of the Home Secretary’s Statement to Parliament on the College of Policing, which I repeated here. The College of Policing is setting out those measures to ensure that the integrity of the police force we share is of the highest standard. This year will see the publication for the first time of a code of ethics by the college.
Anti-social Behaviour, Crime and Policing Bill
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Baroness Hamwee (LD)
My Lords, as the Minister said, I have put my name to the amendment, but the whole House will be grateful to the noble Lord, Lord Dear, for causing the Government, in the words of the Minister in his letter to a number of us, to “reflect carefully” and conclude that pragmatism was the right way.
I am pleased that the Government have decided to propose this change. I did not agree and I still do not believe that the original wording was the threat to freedom of expression which was argued, but it clearly troubled many people a great deal, and whatever the technicalities, I do not think that it is good law to have provisions which trouble people as to precisely what they mean.
I am pleased, too, that the Government have dealt with the tenure point, which was one that I and others picked up at the previous stage. What matters is that it now looks as if we will be able to shift away from the criminalisation of anti-social behaviour implicit in the current legislation and move to a new way to tackle the problem.
Lord Dear (CB)
My Lords, I of course welcome the amendment. It is, as the Minister said, substantially the same as the amendment in my name on which we voted on Report. I readily agree the inclusion of private housing in the same context as social housing, which has been on the statute book for a while.
I extend a vote of thanks at this juncture, first, to those who voted in support of my amendment on Report. I am very grateful to them for helping to preserve and protect fundamental rights under the law. I thank the Public Bill Office staff, who were, as they always are, unfailingly helpful to me in the progress of the amendment through to Report. I thank the staff of the Christian Institute, who gave me invaluable administrative help in the run-up to the vote on Report. Finally, I thank the Minister for his unfailing courtesy and help in what were not always the easiest of discussions to make progress on in this part of the Bill. Those of us who have had the pleasure of working with him before will know that that is his default mode, and I am very grateful to him.
Lord Hope of Craighead (CB)
My Lords, I add my appreciation of the work that the Minister has done with the Scottish Government to provide an amendment which is compatible with Scots law. Having read it carefully, I think that it is a very valuable addition to the armoury in Scots law to deal with this very difficult and obnoxious problem.
Baroness Hamwee
My Lords, I, too, add my thanks. This issue exercises noble Lords around the House, as well, of course, as many people outside the House. It is not a party-political matter; there may be a range of views as to the nuances of how to deal with the issue. I say to the Minister that this is a great and very important step, but he will not have heard the last of the issue of forced marriage.
Baroness Thornton (Lab)
My Lords, I welcome this amendment, to which I was very pleased to add my name. Many months ago, when we started down the route of discussing the Bill, I had a meeting with some of the brilliant organisations that work to prevent forced marriages and to support those who are escaping from them. Almost in passing they mentioned to me that they were concerned about the capacity issue. I looked at the record of the Commons debates and the discussions that took place in Committee there and I noticed that my honourable friend Gloria De Piero had raised the matter there and that she received the sort of response from the Minister there that I received in Committee here. It is a very good example of the way that Ministers in this House conduct themselves. I thank noble Lords, particularly my noble friend Lord Harris, for supporting me in pressing this matter on Report when we persuaded the Minister, as it were, to look at the matter again. I am very grateful that he did so. We have reached a very happy conclusion.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 10 months ago)
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Baroness Howarth of Breckland (CB)
My Lords, I shall speak briefly in support of this amendment and make three points. First, during my life, I have worked in some of London’s most insecure areas and seen insecure estates in the rest of the country. In north Brent and Brixton, crime was rife and burglary, in particular, was at a very high level. On a huge estate—I will not name it, because it has improved so much and I do not want to give it another bad name—I saw design improvements which removed some of the interconnecting corridors and looked at locks, considering the way in which the whole design process was put together so that it reduced crime substantially. If we start with design and local authorities have the option of putting design in place, we will ensure from the beginning that we do not create new estates where problems begin and residents suffer great dismay.
My second point is the localism argument, which has already been made very successfully. The third point is that anything that prevents burglary anywhere must be supported. Like other speakers, I do not understand how it is possible to assess where burglary is going to take place before an estate has gone up. In any case, people should be protected equally. Anyone who knows people who have been victims of burglaries, particularly some of the most vulnerable, will know that we should do everything in our power to prevent the emotional trauma—it is almost like rape—that they feel when they go into their homes and find tremendous damage. It is not just that things have been stolen; it is the feeling of intrusion into their lives.
There are very good reasons to support this amendment. The technical reasons have been put clearly by the noble Lord who moved the amendment and other speakers, and I support it on those grounds.
Baroness Hamwee (LD)
My Lords, I have been enthusiastic about designing in security for as long as I have had any involvement in planning, not just for the protection of property, but for the protection of people.
Two things confuse me about the amendment. One is that the debate, both on the last occasion and to a large extent today, seems to be about products and materials. I have always thought that designing in security starts with things such as defensible space, mentioned by the noble Lord, Lord Condon, and lighting, sight lines and corridors, mentioned by the noble Baroness. I am puzzled why so much of the debate has been about the strength of locks and window locks which, if they are considered anywhere, seem to be more a matter of building control than development control of the planning area.
Like many other noble Lords, I am instinctively against topdown impositions of requirements which should come about bottom up, organically, by local authorities, police and others working in partnership. The noble Lord, Lord Harris, talked about localism and I of course support that, but I would like to ask the Minister some questions relating to this. Perhaps he can explain to the House, and flesh out a little, the extent to which the security issues which we have been discussing can be taken into account in the refusal or imposition of conditions on planning consent currently made by a planning authority. Are there material considerations? I am asking whether the planning authority can currently specify as a condition the sort of security issues that we are all concerned about.
What the amendment proposes is, in a sense, statutory guidelines that would be discretionary in their application. That takes me to the second area where I confess to being a bit puzzled. I am unclear what precludes a local authority drawing up guidelines without having legislation requiring the guidelines to be there and available for the local authority to adopt at its discretion. Do we actually need something in an Act of Parliament which says, “Let’s do some work on something very sensible, but we are not even going to require it to be implemented”?
Baroness Jones of Moulsecoomb (GP)
My Lords, although I have not been involved in these cases, I have been involved in the examination of these kinds of cases when I was a member of a police authority in London for 12 years and I still sit on the police committee at City Hall.
Something like the amendment is absolutely necessary because, putting aside the civil rights, human rights and civil liberties of the women and the people involved in the environmental movement whose lives have been trespassed upon for no information and without subsequent charges against them—these were innocent women who were trespassed against—you have to think about the civil liberties and human rights of the police officers involved. Again and again, officers were embedded within environmental groups for long periods of time. It was not like getting into a drug cartel or organised crime of some kind; this was a quite different kind of policing. The police officers have suffered quite deeply afterwards. It is very easy when you are embedded for three months or six months to get to like the people you are working with and to understand what their motivation is, and many officers have come out of this quite damaged and unable to work any further.
There is also an argument about the cost of the court cases in which some of these police officers were involved—they went to court and were charged as protestors and were either convicted or not convicted—because those cases are now being overturned. Two cases will be coming up in the next two weeks in London on this issue. It is costing us a fortune and justice is not being done. We need an independent way of judging and assessing whether or not this kind of action is necessary. It is time that the Metropolitan Police understood how important this is and I hope that the Government will approve the amendment.
Baroness Hamwee (LD)
My Lords, we had the opportunity to consider the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013, which the Minister sent round after the previous debate and is now in force, as I understand it. Any of us could have prayed against it.
We need to understand as a House that we are not at the point in the development of this—“work” seems to be the wrong term—matter that one might think from looking at the amendment. That is not to say that I do not have sympathy with the amendment. One of the times when I was most shocked at work since becoming a Member of your Lordships’ House was on hearing recordings of the testimonies of women, and their families, who have been affected by activities under CHISRS. I remember the family of one woman saying, “We treated this man as our prospective son-in-law; we welcomed him into our family”. It was very moving.
That causes me to say that what matters more than anything—although I do not know how you deal with it other than by putting formal technical oversight in place—is a change in practice and culture. The police need to take that matter on board but you cannot write that into legislation in that way.
The 12-month period for approval before review is required seems on the long side and I look forward to the Minister explaining it to the House. As I say, we should have questioned some time ago—I am as much at fault as anyone—why 12 months was chosen, rather than six months or even three months.
Lord Taylor of Holbeach
My Lords, this has been a worthwhile debate, although we have discussed this matter before. As the noble Lords know, the statutory instrument has come into effect, so we are in a different regulatory regime from the one we were in when we discussed this in Committee. In no way do the Government endorse activities to which the attention of the House has been drawn in the speeches of noble Lords. I am grateful to the noble Baroness for tabling the amendment. I agree that covert techniques are sometimes necessary to protect the public from harm or to prevent or detect crime. I think all noble Lords will accept that. These techniques need, however, to be closely supervised and constantly reassessed to ensure that they are justified.
Undercover deployments are authorised under the Regulation of Investigatory Powers Act 2000. RIPA provides a strong set of safeguards. As I said in Committee, we have recently brought forward secondary legislation, further enhancing this oversight of undercover deployments by law enforcement agencies. The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 came into effect on 1 January 2014.
I was a little concerned that, in our debate last time, the noble Lord, Lord Rosser, might not have been aware of this order, so, following the debate in Committee, I wrote on 21 December 2013 to draw it to his attention and to that of the noble Baroness. As a negative instrument, there was the normal opportunity for the Opposition or any noble Lord to pray against the order, perhaps on the ground that its provisions fell short of what was needed. Unfortunately, however, it is a matter of record that no such step was taken. The order, which has now been in force for some three weeks, provides a number of additional safeguards to ensure that the technique is used only when it is just to do so. I will give some examples of what I mean.
First, law enforcement agencies must notify the Office of Surveillance Commissioners, all retired senior judges, of all undercover deployment by law enforcement officers. Secondly, an authorisation can be renewed beyond 12 months only with the prior approval of a surveillance commissioner, who, I remind your Lordships, is someone who has held senior judicial office. It may be that the original deployment is not authorised for 12 months. Thereafter, if it is to be renewed at 12 months, a surveillance commissioner will be required to pre-approve all renewals for long-term deployments every 12 months.
In addition, we have increased the rank of authorising officer. Deployments of undercover law enforcement officers now need to be authorised at assistant chief constable level or equivalent. Any deployments lasting longer than 12 months will be authorised by a chief constable or equivalent as well as by a surveillance commissioner. The seniority of those who are now required to authorise these deployments is an indication of how seriously the Government take proper oversight of undercover law enforcement activity. I hope I can reassure my noble friend Lady Hamwee that all authorisations are notified to the commissioners at the outset. They monitor the cases during their normal inspections. Each case is approved specifically after that 12-month interval. It reflects the existing legislation and implements the HMIC recommendation to increase oversight of long-term deployments. As I have said, deployments can be for shorter terms, but they still have to be notified to surveillance commissioners.
We believe that the new arrangements will create a regime that contains considerable safeguards while not hampering operational effectiveness. We should allow them to bed down and be given a chance to prove themselves. We will of course keep them under review. Given these recent changes, I do not believe that this amendment, well intentioned as it is, is required. I therefore invite the noble Baroness to withdraw it.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I will speak at the same time to Amendments 94DB to 94DF inclusive. These are all connected to Part 12 of the Bill concerning extradition.
I will briefly summarise what appears to be a slightly technical and arid set of amendments, but which would nevertheless have a very significant impact. They would restore to individuals arrested under an extradition warrant the automatic right of appeal which currently exists—an automatic right which the Government are proposing to remove under the terms of this Bill. Let me make it absolutely clear that these amendments do not somehow let individuals off the hook who are arrested under an extradition warrant. They merely preserve the right that those individuals enjoy at present. Noble Lords will probably be aware from the briefings they have received that these amendments are supported inter alia by Fair Trials International, of which I need to remind the House that I am a trustee, by Liberty and by Justice.
I will now set that summary in context. First, my particular concern is the impact of the Government’s proposal on those arrested under what is known as a Part 1 warrant—more familiarly, the European arrest warrant—because of the very short timetable of EAW proceedings. Secondly, I want to make it clear that this is not an attack on the EAW generally. The EAW has enabled many very nasty criminals—terrorists and the like—to be speedily brought back or sent back to face justice. That is as it should be. Thirdly, and quite understandably, this Government—and, indeed, the previous Government—focus on these very high-profile cases, but the vast majority of cases do not involve matters of high importance.
In the last year for which records are available, there were 1,438 arrests under the EAW and 1,057 surrenders. For the most part, these involve ordinary members of the public for whom this will be an entirely strange and unfamiliar process and one which they are not well equipped to challenge. Some of them will have been arrested for crimes which they did not commit. Therefore, it is on behalf of these people—Edmund Burke’s “little platoons”—that I have tabled these amendments and ask for the House’s support today.
I shall be fair to the Government and my noble friend on the Front Bench. The Government asked Sir Scott Baker to review the operation of this country’s extradition arrangements and they have implemented a great many of his recommendations. Further, as part of the Lisbon opt-out, opt-back-in procedure, the Government have indicated a number of further changes. For example, they expect much less use in future of the EAW for trivial crimes and that greater efforts will be made to ensure that cases are trial-ready before the surrendering of individuals takes place. Those are indeed welcome changes and I congratulate the Government on making them. However, while increasing these protections, the Government are proposing to remove one great protection—that of the automatic right of appeal.
I hope that the House will forgive me if I remind noble Lords of two particular aspects. The first, as regards the EAW, is just how compressed the process of surrender is. An arrest will be followed by a court hearing at Westminster magistrates’ court within 48 hours. The accused will be represented by a duty solicitor who may or may not know anything about extradition. Edward Grange, a specialist extradition solicitor, has explained:
“At present there are over 400 individual solicitors signed up to the extradition rota at Westminster Magistrates’ Court. The majority of individual solicitors have never had conduct of an extradition case before and yet these are the solicitors that are entrusted to provide appropriate advice and assistance to those arrested on extradition warrants. The Extradition Act 2003 is complex and the case law it has generated is vast”.
A further hearing after that initial hearing will follow within 21 days, so that in as little as 35 days a person can be on his way to another jurisdiction, many of which will be operating with entirely unfamiliar procedures and conducted in a language which the accused probably does not understand at all.
Further, it is worth while remembering that, if the person wishes to appeal, he has in any case to make that appeal within seven days. I ask noble Lords to imagine the case of an unsophisticated person remanded in prison. His first legal representative, it turns out, knows nothing about extradition, so he has to make a change. He has to gather evidence, probably from at least two jurisdictions, perhaps involving many people, and put all that together into a case, and he has to do so within seven days while he is confined to prison. So much for the specifics of the compression of the EAW procedure.
The second point is the catastrophic impact that extradition can have on an individual—on his family, on his home, on his employment and indeed on his whole life. I shall not weary the House today with quotations from people who have been involved in these cases, but the stories of how people’s lives have been turned upside down by mis-arrests and an inability to get the appropriate advice and help are truly horrifying. The step of a state arresting one of its own citizens and handing him or her over to another state to try is a very fundamental one. It needs to have a proper level of safeguards. That is why I have tabled these amendments today and why I think they are so important.
If I could look over the shoulder of my noble friend on the Front Bench and glance at his speaking notes, what do I think I would see there as the Government’s wish behind the policy of removing the automatic right of appeal? I think the first thing would be that they were doing so because Sir Scott Baker recommended its abolition due to what he saw as a large number of unmeritorious appeals. However, the world has moved on since Sit Scott Baker undertook his review. First, the safeguards introduced by the Government, as I referred to earlier, through their amendments to the 2003 Act will now give weight to arguments which may previously have been deemed to be without merit due to the lack of a legislative basis. Therefore, it is likely that these reforms will reduce the number of unmeritorious appeals reaching the High Court. Further, the Government have introduced a requirement in Clause 145 of this Bill for the National Crime Agency to review extradition requests and sift out cases where it is clear that a judge would be required to order a person’s discharge on the basis that extradition would be disproportionate. Taken together, those steps will certainly mean a substantial reduction in the number of EAW cases.
It is important to remember that, while Sir Scott Baker recommended that the automatic right of appeal should be removed, as a compensating factor he also recommended that the time in which an appeal could be launched should increase from seven to 14 days to match the period that exists for a Part 2 warrant. I tabled an amendment to that effect in Committee. Subsequent to that, and after discussions with my noble friend on the Front Bench, I reflected and concluded that the longer the appeal period, the more the well resourced “nasty” case could take advantage of these delays to frustrate the underlying purpose of the EAW. Therefore, I have not retabled that amendment, which we discussed in Committee on 11 December. Instead, I argue for the preservation of the status quo as regards appeal. I shall not try to pretend to the House that I understand the details of how the appeal process works but the groups with which I have consulted over this matter understand the details and have written to me to say:
“Our review of the judgments of the High Court in extradition appeals … demonstrates that judges are able to dispose of appeals based on weak arguments in an efficient manner which prevents significant court time from being spent on unsuccessful appeals”.
In conclusion, while I congratulate the Government on the changes and improvements they have made, I express sorrow and regret at their apparent determination to remove this important protection. I am convinced that British judges are quite capable of sorting the wheat from the chaff in appeal cases. Preserving the automatic right of appeal will undoubtedly help ordinary people inadvertently caught up in the machinations of the EAW. I believe that it is in the interests of justice that the automatic right of appeal should therefore be maintained. I beg to move.
Baroness Hamwee
My Lords, things can go wrong in the best of organisations and the most learned and expert of professions. To me, the right of appeal is fundamental and I support the noble Lord.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 10 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, our amendment adds a new ground for the issuing of a closure notice that would allow premises to be closed in cases of sexual offences against a child. It is largely a preventive measure but would be an important extra tool in tackling this problem. No one could have failed to be distressed and horrified by the reports late last year of groups and gangs of men who abused young and vulnerable girls. They did so by a cold, calculating and sinister grooming process, sometimes involving drink and drugs, which allowed them to sexually and physically abuse these children. So cleverly warped are these groomers’ tactics that the children—and vulnerable adults—may not even realise at the time that they are being abused and exploited.
We have an opportunity in the Bill to provide more ammunition for those trying to prevent this shocking and evil crime. I hope noble Lords will allow me to put on record my gratitude to those who brought this matter to my attention: Tony Lloyd, the police and crime commissioner for Greater Manchester; Colin Lambert, leader of Rochdale Council; and Jeanette Stanley, Rochdale’s safety community manager. They have given me some hugely important and useful evidence. I know they have been in contact with Home Office Ministers as well. Their experience and knowledge of what works in tackling such crime and where the gaps are in legislation is invaluable. I know that the Minister shares my concerns on this issue and I hope that the Government will share my view of the suggestions that these people brought forward to try to tackle this problem.
They are seeking an immediate closure power where there is a safeguarding threat. Greater Manchester Police has evidence of properties that are unregulated and unlicensed being used in a variety of ways to prey on vulnerable adults and sexually exploit children “behind closed doors”. Yet the only powers the police have—and will have in legislation if the amendment is not passed—is to close premises on anti-social behaviour grounds. Now that the police have evidence of the shape and extent of this problem, that is no longer enough. In Rochdale, they have been able to use the current anti-social behaviour closure order power on a number of occasions to good effect because they also had sufficient evidence of recent and repetitive anti-social behaviour incidents. However, the main reason for obtaining a closure order was because of safeguarding concerns involving children and young adults. That power allows a short-term disruption to the abuse while the police can then take longer-term permanent action.
Norman Baker, as Home Office Minister in the other place, has responded to the suggestion outlined in our amendment that closure powers exist under the Sexual Offences Act 2003. He is absolutely right—they do—but they apply only to prostitution and pornography, not to protecting children and vulnerable adults. The powers do not allow for the swift action that is needed. However, perhaps the most serious problem with that approach is that to use a sexual offences order, evidence of a criminal offence is needed. The grooming method of such gangs is quite sophisticated in a warped way, and many victims of child rape and sexual abuse do not complain. They may even believe that their abuser is their boyfriend and that they have sex with his friends to please him. While in the clutches of these men, the victims cannot even recognise that they are being abused.
This is a simple amendment. It obviously does not solve all the problems but it will make a difference. Tony Lloyd and Councillor Colin Lambert first wrote to Minister Jeremy Browne on 4 October last year seeking this help to tackle the problem. I put on record my thanks to the noble Lord, Lord Taylor of Holbeach, as Minister, for his willingness to discuss these issues with me. I really hope that the Minister can accept this amendment but I would be happy for him to take it away to consider further, and for us to bring something back at Third Reading. I beg to move.
Baroness Hamwee (LD)
My Lords, the noble Baroness raises a hugely important matter. I was glad to hear her say that she would welcome the Minister taking the matter away, but I have to say that my reaction would be to wonder whether, as she says—and I am not doubting what she says—there are gaps in our legislation that mean there are problems for the authorities. If that were the case, I should have thought it necessary to make changes to the Sexual Offences Act. I question whether the changes should be made in this Bill, given that the offences she is talking about are of a very different order from the nuisance and disorder that this part of the Bill is addressing.
There is also the difficult issue of taking steps to prevent something that might be a criminal offence—we are talking about something rather different in this part of the Bill—without having gone through prosecution and so on. I have not had a discussion with the Minister —he might be about to take the ground completely from under my feet—but it seems that we are talking about something very important but rather different.
Baroness Smith of Basildon
My Lords, I am extremely grateful to the Minister for his response in this regard. It contrasts quite starkly with the comments from the noble Baroness, Lady Hamwee, who seemed to be much against taking action in the Bill. However, his response—
Baroness Hamwee
My Lords, I apologise to the House if I was not clear. I was entirely sympathetic with the thrust of what the noble Baroness was seeking to do but was suggesting, precisely as the Minister has said, that the Sexual Offences Act might well be the place to do it.
Baroness Smith of Basildon
It came over rather more negatively than that, but the Minister’s response was very useful and I think it showed a clear determination to take action on this. I am very happy to enter into discussions with him and we should be able to find a way to bring this back at Third Reading. It is an urgent issue: children are being abused today and will be abused tomorrow and the day after, and we have a real opportunity here to make a difference. I am grateful to the Minister for seizing the opportunity and I look forward to our further discussions.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendments 71, 72, 73, 74 and 75. These amendments are concerned with people who are affected, and how they are affected, by closure notices and closure orders. Amendment 62 addresses those who “habitually”—that is the term in the Bill—live on the premises and their entitlement to access. The subsequent amendments deal with the clauses relating to temporary orders and their extension and discharge, and appeals, as well as the extent of the building which may be the subject of an appeal.
I am concerned about the employees who live on site. Pubs, hotels and other leisure establishments often include accommodation for junior staff and not just for the managers. When I raised this at the previous stage, the noble Lord, Lord Ahmad of Wimbledon, said that closure notices could be,
“tailored to the appropriate circumstances”.—[Official Report, 2/12/13; col. 14.]—
we were talking about security and safety—but that the Government considered that the exception should be limited to residents who are habitually resident and, in the case of an appeal, to those who have an interest in the premises, meaning a financial or legal interest.
The draft guidance, which we have seen, seems to consider these issues only to the extent of the police or the local authority, allowing discretion for the retrieval of items left on the premises. My concern goes wider than that. A young person employed in the sort of situation to which I have referred may well be living a long way from home and quite suddenly lose the place where they are living, if not habitually at that point. I am not suggesting that this may be a widespread situation but, for those affected, it will be very significant and I wonder whether my noble friend on the Front Bench can give me any more assurances. I am simply not confident that the legislation allows for enough to go into the guidance to cover the points that I am making. I beg to move.
Lord Ahmad of Wimbledon (Con)
My Lords, as my noble friend Lady Hamwee has explained, these amendments relate to the closure powers in Chapter 3 of Part 4 of the Bill. She has also indicated that her particular concern is to protect the interests of employees—such as caretakers, for example—who may live on premises subject to a closure notice or order. Amendment 62 relates to the use of the term “habitually” in the context of Clause 69(4). That subsection provides that a closure notice cannot prohibit access by a person who habitually lives on the premises. The term “habitually” in this context means those who routinely or regularly live at those premises. It could, for example, cover students who live away from the family home for part of the year but routinely return to the family home as their main residence or those who spend the majority of the week living at the pub in which they work.
The term is commonly used in legislation setting out entitlement to social security benefits, such as the Income Support (General) Regulations 1987. It is also used in the family law context when a court decides cases under the Child Abduction and Custody Act 1985, where it is often relevant to decide in which country a child habitually resides. When approaching this test in each context in which it has arisen, the courts have said that it is essentially a question of fact to be determined by reference to all the circumstances of a particular case. We expect the police and local authorities to follow the same approach in this context and assess each circumstance on a case-by-case basis. However, it is important to retain this word so that we exclude persons who may only occasionally live on the premises: for example, a friend of one of the residents who may just be spending time there over a weekend or at a sleepover.
Amendments 71, 72, 73 and 75 all seek to extend certain rights—for example, the right of appeal against a closure order—to persons who live on the premises concerned. Such rights already apply to persons on whom a closure notice has been served and on persons who have an interest in the premises. The Government are satisfied that these existing provisions are wide enough to protect the position of employees who may reside on the premises.
In Committee, I explained that the reference in the Bill to a person having an “interest” in the premises covers those who have a financial or legal interest. I would fully expect that any employee who has been furnished with accommodation as part of his or her employment would have their entitlements to such accommodation set out in either their contract of employment or an associated tenancy agreement. That being the case, I am satisfied that in any such formal relationship between an employee and the owner or occupier of any such premises subject to an application for a closure order, the employee will be a person with an interest in the premises and therefore already covered by the provisions provided in Clauses 74 to 77.
Finally, Amendment 74 seeks to clarify the circumstances in which an appeal against a decision to make or extend a closure order may be made. Of course, I understand that my noble friend has in mind the situation where an appellant may wish to challenge the extent of a closure order in terms of those parts of a building or structure which are covered by the order. Again, I can assure my noble friend that the provisions in the Bill as drafted allow for this. Clause 77(6) enables the court hearing an appeal to make whatever order it thinks appropriate. This would include varying the terms of a closure order so that it applies to a more limited part of the building or structure in question. Therefore, an employee living on-site could use the appeal to argue that a closure order should not include his or her living area. I hope that, in the light of the explanation that I have given, my noble friend is reassured and will be content to withdraw her amendment.
Baroness Hamwee
My Lords, in the Minister’s explanation of “habitually”, which I understood from the previous stage, the example he used of a student whose real home—if I can put it that way—was somewhere else actually confirmed exactly what I was worried about. That part therefore did not reassure me, but I am helped by his more extended explanation of the term “interest”. I know when I am beaten, so I beg leave to withdraw the amendment.
The Earl of Lytton (CB)
My Lords, first, I should like to clarify a point made by the noble Baroness, Lady Lister of Burtersett, and reinforce what she said about the Landlord and Tenant Act issues under secure tenancies.
The legal situation, as I understand it from my profession as a chartered surveyor, is that tenants are responsible for the actions of those living with them only to the extent of the lease terms and the demise concerned. It does not and never has extended to liability for the wider actions of members of a tenant’s household elsewhere. Even general paving clauses such as “immoral or illegal activity” have, as I understand it, been pleaded in vain. I put that clearly. The noble Baroness, Lady O’Loan, has raised a valid point here. The whole of Clause 91 looks like being a knee-jerk reaction that would go beyond what is necessary and desirable.
I would like to ask one or two questions for clarification. What about the whole question of the rehabilitation of offenders? When somebody has been indicted, put into prison, served their sentence and comes out, what are the circumstances in which a court will grant this further period of indefinite rustication, if you like, from any sort of enjoyment of a place that they can call a home and to which they can naturally relate? What are the safeguards? Is this the default position, or does it concern the second or third strike after the event? We do not know and I invite the Minister to clarify the position.
Moreover, what about the selective post-sentence treatment of rioters as a particular species of offender under the Bill—as opposed to, say, murderers or other offenders? Very large numbers of offences are anti-social, and virtually all have a victim class of some sort who would naturally look, under the terms of the overarching principle of this Bill, to some sort of rebalancing. I worry about the singling out of this class of offender. Maybe the Minister can explain how that works. This provision could result in a class of persons without rights to occupy anything that they could call a home of their own. That needs to be circumscribed and contained in some way because the circumstances of the offence will not necessarily be replicated. If there is no risk of replication, what is the court being instructed to do? The justification is rebalancing towards the interests of victims—for them to feel that justice has been done. Would Clause 91 achieve that rebalancing? I am not clear that it would.
Baroness Hamwee
My Lords, the term “knee-jerk reaction” was used. I think we are all clear—let me use a synonym—that it was an immediate reaction to the riots of 2011. I am never comfortable with using legislation to give a message. At the previous stage I proposed amendments that were replicated in what we have today because I recognise the political realities of the situation and the circumstances in which that message had been given.
I was horrified when I looked at Hansard to see that I was on record as saying that I was happy with the clause. Hansard now knows that I was not happy with the clause and is correcting the record from Committee stage. As I say, I recognise the strength of feeling and where we might well end up. Knowing how the two Houses work and that this clause has been considered by the Commons, I went straight to what I hoped might be a way of ameliorating the situation, which was to suggest that it be limited to serious offences. That is a very significant change and taken with the other safeguards—that is how I look at them—which the Minister has listed, I am perhaps somewhere between where Hansard said I was and where I was. I am not happy but I am not nearly as unhappy as I might have been.
I was interested to know what had happened in Wandsworth after the 2011 riots and checked with the council. I understand that that council—presumably this is not the case with every local authority—has specific tenancy conditions covering the behaviour of tenants and it considered the criminal activities as coming within those conditions. The housing professional from whom I have heard talked about the double jeopardy term being used as a criticism but said, however, that the ground relating to possession for a serious conviction has existed since 1985. In essence, if the new ground meant that a tenant living in one borough could be pursued if convicted in connection with rioting in another borough I can see the attraction but I doubt whether the courts will agree. I am grateful to the Minister for bringing forward the amendments today.
Baroness Hamwee
With the leave of the House, just to pursue the point made by the noble Lord, Lord Ponsonby, the information that I had from the chief executive of Wandsworth was that, in that borough after the 2011 riots, 12 notices of seeking possession were served, which is the first step in eviction proceedings. That resulted in an outright possession order and subsequent eviction in one case; seven others resulted in possession being granted but suspended on terms or an undertaking being given to the court. That, of course, supports what the noble and learned Baroness said about the court’s position.
Lord Taylor of Holbeach
This has been a good debate on an important subject, and I am grateful to the noble Baroness, Lady O’Loan, for bringing it to us today. However, I reiterate that, as with the existing discretionary grounds for possession, the legislation has always contained important safeguards—not least the discretion of the court, at the end of the day. However, this has been recognised by the Government in our amendments, reflecting the key concerns, if not all the concerns, of the Joint Committee on Human Rights.
A lot of noble Lords have spoken in this debate, including the noble Lord, Lord Rosser, the noble Baroness, Lady Lister, the noble Earl, Lord Lytton, my noble friend Lady Hamwee, the noble Baroness, Lady O’Neill, my noble friend Lord Elton, the noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord Paddick and the noble Lord, Lord Ponsonby. A number of points have been made, all working on a theme.
To put the debate in context, I remind the House that the Housing Act 1996 already provides for a ground of possession where a tenant, a member of their household or a visitor has been convicted of anti-social behaviour or a criminal offence in the locality—there is the difference—of their property. Many of the issues that noble Lords have pointed to are already familiar to those who have to make the decisions. The noble Lord, Lord Ponsonby, referred to the debates in Wandsworth, and I am grateful to my noble friend Lady Hamwee for giving us the figures there. Such decisions have to be made by housing authorities and landlords over time in any event, and the courts themselves have to consider the impact not only on the perpetrator of the crime but on the family. This is familiar ground.
Baroness Hamwee
My Lords, it seems that in Scotland the provisions which are in force have not been as effective as one would have hoped. I am not sure that the laws against proxy purchasing of alcohol have been terribly effective. I would be concerned if bringing in a further measure which failed to achieve what we wanted to see was a deterrent to anything more effective. Is the Minister aware of what the police think about this? After all, enforcement is what matters when one is introducing a new offence.
Lord Taylor of Holbeach
My Lords, when we debated this issue on 4 December, we agreed that, because smoking is largely an addiction taken up during childhood or adolescence, reducing the availability of tobacco to young people is important if we are to succeed in reducing overall smoking uptake. This new clause seeks to create a new criminal offence of an adult purchasing, or attempting to purchase, tobacco products on behalf of a child or young person under the age of 18. This act is commonly known by the phrase, “proxy purchasing”.
While smoking prevalence among young people has declined considerably in recent years, there are still each year around 300,000 young people in England under the age of 16 who try smoking for the first time. As a starting point, we must continue to take action to encourage adults to quit smoking. If smoking is seen by young people as a normal part of everyday life, they are much more likely to become smokers themselves. The Government’s Tobacco Control Plan for England is clear that, to promote health and well-being, we will work to encourage communities to reshape social norms, so that tobacco becomes less desirable, less acceptable and less accessible. We aim to stop the perpetuation of smoking from one generation to the next.
We need to think carefully about whether creating a proxy purchase offence would have an impact on how accessible tobacco is to children and young people, and whether it would have a meaningful impact on reducing smoking rates among young people. Obtaining cigarettes from retailers is just one of many avenues by which young people access tobacco. We know that children and young people obtain their cigarettes from a wide range of sources. Some young people take tobacco from their parents, from other family members or from older friends. In such circumstances, no proxy purchase has occurred. Introducing a new proxy purchase offence would not tackle that particular way of getting tobacco.
I understand that introducing a proxy purchase offence for tobacco is supported by some retailer organisations, including the Association of Convenience Stores and the National Federation of Retail Newsagents. Let me be clear that I recognise the important role played by retailers in ensuring that tobacco products are sold in accordance with the existing age-of-sale legislation. I also want to recognise the important work that retailer organisations have played in recent years to support their members in meeting age-of-sale requirements.
I realise the difficulties that some retailers face, and I understand why some feel that it should be an offence to buy tobacco on behalf of under-18s. I also understand that the creation of a proxy purchasing offence has the support of the tobacco industry—as the noble Lord, Lord Faulkner, said. However, I am sure that noble Lords will agree that the creation of effective and practicable legislation should be informed by evidence. In the area of proxy purchasing, the Government’s current view is that we want to see evidence that a proxy purchase offence would be effective both in reducing young people’s access to tobacco and in having a deterrent effect on those adults who are prepared to buy cigarettes on behalf of children and young people.
In fact, I am concerned that some of the evidence that is currently available suggests that creating a proxy purchasing offence would have only limited benefit. For example, a Scottish study published in August 2013 looked at how young Scottish smokers living in disadvantaged communities obtained their cigarettes. The study concluded that the introduction of a proxy purchasing offence in Scotland had had little discernible impact.
Nevertheless, that is not to say that evidence does not exist, and I encourage those who support this amendment to provide evidence of the likely public health benefits of creating a proxy purchasing offence to the Department of Health for further consideration. Proxy purchasing of tobacco is an area that the Department of Health is keeping under review, and any further evidence that is provided will be carefully considered. I assure noble Lords that I will draw the attention of my noble friend Lord Howe to the debate we are having on the subject this afternoon.
As the noble Lord, Lord Rosser, said, those in support of a proxy purchase offence point to Scotland, where the offence was introduced in April 2011. While I understand that a light-touch approach has been taken on enforcement and that the legislation has been in place only for a few years, I note that only one fixed penalty notice has been imposed since the offence was introduced, and that there have been no convictions. Furthermore, whether the legislation has had any deterrent effect is also not clear.
The statistics for the similar offence of the proxy purchase of alcohol show that convictions are few and far between in that area, too, in no small part because of the burden of proof required. Furthermore, the alcohol offence includes a defence that the purchaser had no reason to suspect that the individual they bought the alcohol for was under 18. This amendment does not address that point.
Whether local authorities want the creation of a proxy purchasing offence is not at all clear at the moment. After all, they rather than the police would be responsible for enforcement. The Minister responsible for public health made it clear during a debate on this issue in the House of Commons in October that the Government would be happy to hear the views of local authorities on the potential for effective enforcement, or to hear of good examples of existing local measures to reduce access to tobacco by young people. I also call on those in the public health community to provide this sort of evidence for the creation of a proxy purchasing offence. I want to be clear that we are not rejecting the creation of a proxy purchasing offence outright, but we need to give the matter further consideration.
While we understand the views of retailers and the tobacco industry on proxy purchasing, the Department of Health will continue to work with local authorities and the public health community to understand their views. I want to reassure your Lordships that the Department of Health will also keep under review relevant evidence and experience from elsewhere. I again encourage those with evidence to make it available; I cannot reiterate that enough.
Lord Hope of Craighead
My Lords, the noble Lord, Lord Foulkes, was kind enough to mention me, and perhaps I may add a footnote to what he said about Scotland and the measure that deals with emergency workers. Of course, an assault, in both the law of Scotland and the law of England, is a crime, and in a sense you could say that it was not necessary to pass that measure at all because any court when presented with evidence of an assault would pass an appropriate sentence if the individual was convicted.
However, the value of the measure, which got a lot of publicity, was its deterrent effect. After all, the last thing that one wants is to have the assault committed. The Government in Scotland were trying to reduce the very unfortunate crescendo of assaults on emergency workers—firemen, ambulance people and so on—and to some extent the measure appears to have had that effect. Therefore, the deterrent effect is as valuable as any sentencing. As I said, in an ideal world, if something was a crime, the individual tempted to do the act described as criminal would refrain from doing it. It is because of the deterrent effect that I think there is a good deal of force behind the amendment.
Baroness Hamwee
My Lords, I thought that at the previous stage the noble Lord, Lord Condon, had it right when he said he feared that,
“the real mischief they and we might seek to address is not the absence of suitable offences but the absence of action”.—[Official Report, 4/12/13; col. 255.]
I asked questions of my noble friend about sentencing, the aggravating nature of that type of offence and so on, and I am afraid that I have not changed my mind about those two aspects.
I am interested in the definition of “worker” in the noble Lord’s amendment. One qualifies, as it were—that is not quite the right term but he will know what I mean—only if one is “physically present”. Reading that, I wondered how that works with his requirement for malice in subsection (2) of the proposed new clause. When I saw the word “malice”, I thought that he had in mind, for example, someone who—possibly for very personal reasons—does not like people who work in jobcentres but then discovers that his neighbour works in a jobcentre. Is that malice towards all such people for that sort of reason or are we talking about something very personal? Does it mean being in the workplace or in the sort of situation that I have suggested, hanging around until one’s neighbour comes out of the house and having a go at him for that reason?
I was also interested in subsection (4) of the proposed new clause. If I remember rightly—I have not gone back to check—I think that on the previous occasion the noble Lord talked about “evidence from a single source”. That seems to be a matter for the courts. We should not tell the courts how to assess evidence. If he is saying that there is some restriction on the way they are working at the moment, it may be a different matter—but, again, that made me wonder where the noble Lord was going with this.
On the aggravating nature of the offence, we have to be careful not to devalue the importance of that approach to sentencing. This, of course, is not the only aggravating factor for the courts, but the Sentencing Council does a very important job in identifying appropriate aggravating factors.
Lord Rosser
My Lords, my noble friend Lord Foulkes of Cumnock very eloquently made the case in support of this amendment. It is really about supporting victims of assault by a member of the public in the course of their employment and in the course of earning their livelihood. I suppose that the question is whether one feels that the matter should be dealt with by regarding that kind of assault as one of a great many aggravating factors in an assault case, or whether it should be regarded as a separate offence. The noble and learned Lord, Lord Hope of Craighead, referred to the impact of the new offence in Scotland in relation to assaults on emergency workers.
It is worth looking at some of the figures that have emerged. Those from the HSE’s Crime Survey for England and Wales show that there were nearly 650,000 reported incidents of violence at work and that workplace violence comprises some 31% of all reported crimes of violence. The HSE found that the occupations at greatest risk were those that involved working with the public. That is hardly a surprise, but nevertheless it was confirmed by the HSE.
Reference has been made to the position of shop workers. USDAW, the union that represents them, undertakes members’ surveys, which show that in the past year 4% of retail staff were attacked at work—which is equivalent to some 120,000 assaults—and 34% were threatened with violence. In addition, 17% of those attacked did not report the offence—and we can all speculate as to why that might have been the case.
People at work—in their employment, in the course of earning their livelihood— are in a different situation from most other people. The reality is that an assault on somebody at work can be quite traumatic. It can lead to a situation where somebody is reluctant or fearful to go back to their place of work and be in exactly the same situation that they were in when they were attacked, facing a constant stream of strangers, any one of whom could become violent. One can also find cases of people assaulted by a member of the public in the course of their employment where the assault leads to them actually losing their job and their livelihood, because they are so traumatised that they are no longer able to return to the same job at the same location and to carry on with that employment. Those are among the victims who feel that sentencing probably does not reflect the effect that that kind of assault can have on their lives.
As has already been said, many people in the course of their employment are actually put in the way of danger by their work. They are the kind of people who have already been mentioned: public transport staff, fire workers, security staff, emergency service workers and shop workers. They often have to deal with people who are aggressive, drunk or attempting to break the law. Those workers are the kind of people who can be working late at night, sometimes on their own and in areas of anti-social behaviour which most people voluntarily avoid for their own safety. Workers in that situation do not have that particular option.
Some staff in the course of their employment dealing with the public have an obligation to seek to enforce the law. Those, for example, who serve alcohol are required to obtain proof of age from the purchaser. They are required to refuse to serve someone who is drunk and they are required to refuse a proxy sale of alcohol—although not of tobacco, as we were discussing earlier. Those kinds of actions are all major triggers for assaults on staff, and reference has already been made to the situation in that regard. In the USDAW survey, some 30% of assaults arose from challenging age-restricted sales, and some 15% related to people who appeared to be committing theft.
Those actions, carried out by people in the course of their employment who are required to seek to enforce the law, place workers at risk. If they are not undertaken—particularly in relation to refusing to serve people with alcohol when they are under age, or refusing a proxy sale of alcohol—staff can be liable for prosecution or for action to be taken against them for failing to carry out their duty to seek to enforce the requirements of the law where it applies.
There are, therefore, differences in the position of people who are assaulted in the course of their employment. They cannot run away; they cannot move somewhere else; they have to go back to their employment after an assault and be in the same situation in exactly the same circumstances as they were, facing members of the public and probably fearing that the same kind of thing might happen again. In some cases, it can cost them their jobs because the experience has been so traumatic that they feel they cannot carry on. Many are put in danger by the nature of their work or the kind of job they have to do; many are required to enforce the law as part of their work.
Like my noble friend Lord Foulkes of Cumnock, I hope that we will get a more sympathetic response to this amendment. There is a case for having a separate offence of assault on a person in the course of their employment by a member of the public, and for not regarding it as simply one of a large number of aggravating factors for the offence of assault.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 10 months ago)
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Lord Harris of Haringey (Lab)
My Lords, I declare an interest as chair of the Freedom Charity, which works to provide education and support for individuals who may be at risk of forced marriage. The noble Baroness, Lady Tonge, is right to highlight that many organisations believe that the Government are correct in trying to make forced marriage a criminal offence. The Freedom Charity is precisely one of those organisations and, in my view, the Government’s approach to this is right.
However, the amendment moved by my noble friend Lady Thornton, as opposed to the general principle which seems to have been aired, raises another, separate and extremely important issue—the circumstances in which an individual who has been forced into marriage lacks proper capacity to consent to that marriage. I have no doubt that we will be told by the Minister that somehow that is covered by the phrase at the end of Clause 109(1)(b) about a person entering into a marriage,
“without free and full consent”.
I understand that argument, but it seems to me that nothing is lost and rather a lot is gained by specifically highlighting the problems of those who may not have the capacity to consent to a marriage.
I am in no doubt that there are instances where young people, or not so young people, who have limited capacity are being forced into marriages, perhaps from benign motives—that is, to protect or support them—but perhaps also from less benign motives. Forced marriage is pretty abhorrent in itself, but the implications of forcing into marriage somebody who does not even understand what is happening to them seems to me particularly vile and is something that I hope this legislation will address.
That is why the amendment moved by my noble friend Lady Thornton is important, and I hope that the Government will be prepared to accept and support it. As I said, I understand that they will no doubt say that,
“without free and full consent”,
covers the point but, unless it is highlighted and unless the particularly vulnerable state of people with limited capacity is made clear, a great opportunity is being lost. Making it a specific and separate criminal offence is important, and I hope that the Minister will be able to accept the amendment.
Baroness Hamwee (LD)
My Lords, when I first saw the amendment, I thought that, as the noble Lord, Lord Harris, has just said, it was covered by Clause 109(1)(b). However, I realised that it is not, because paragraph (b) comes into play only if paragraph (a) applies. Therefore, my question to the Minister is: what does “coercion” in paragraph (a) mean? If the argument is that it is covered, I think that we need to understand the extent of coercion and whether that covers the situation that the noble Baroness has set out.
While I am on my feet, perhaps I may say that I hope my noble friend Lady Tonge will seek the leave of the House to speak to her amendments in this group. She got so carried away with enthusiasm for the noble Baroness’s amendment that she forgot to cover them. I am intrigued by my noble friend’s amendments. We were all left floundering somewhat listening to the debate on their predecessor amendments in Committee, knowing that there were good intentions behind them but not quite finding the means to support them because we were rather doubtful about them. These amendments are much more comprehensible.
Baroness Tonge
My Lords, with the leave of the House, I should like to carry on with my remarks, as I had intended to introduce Amendments 87A and 87B. They seek to make it an offence under the law of England and Wales if someone is,
“the parent or guardian of a child, and … gives consent for that child to enter into marriage before the age of 18 unless the written consent of both parties to the marriage has been obtained”.
The reason we have tried to clarify this is due to a lot of experience from all around in our all-party group. I must emphasise that we also want these provisions to apply to marriages contracted abroad, not just in this country. I must apologise for not being present at Committee stage; I was abroad at another conference so my noble friend Lord Rea spoke on my behalf.
We have good laws in place to make forced marriage illegal and these are strengthened by this Bill. I would like to commend the excellent work being done by the Forced Marriage Unit at the Home Office, which really is commendable. These amendments seek to close a loophole which I think still exists concerning children between the ages of 16 and 18. In general, not every forced marriage is a child marriage, but every child marriage is usually forced; hardly any take place with the agreement of the participants, who are often tricked into marriage by their families on the pretext of going on holiday or some treat or other.
According to the international Convention on the Rights of the Child, to which the UK is a signatory, a person is a child until the age of 18. I notice that in Committee some noble Lords felt that, if children could vote at 16 and join the Armed Forces at 18, they should be allowed to marry at 16 with the consent of their parents. However, I would contend that marriage is a very binding contract indeed, from which it is very difficult to escape. A young person can leave the Armed Forces and can refuse to vote, but they cannot easily get out of a marriage that was contracted sometimes without their consent.
If young people want to have, hopefully protected, sex—which many do; I was not born yesterday—they can do so legally after the age of 16. If they want to live together in many cultures now, they can do so legally after the age of 16. So what is wrong with asking them to delay the legally binding step of marriage until they are 18? That, however, is not the point of my amendment, but I had to say that because I feel very strongly about it. I know that noble Lords rejected that in Committee.
At present, any parent who wishes to force a marriage on their son or daughter can do so by claiming that consent has been given if the child is between 16 and 18. In Clause 109(1)(b), the Bill mentions the “full and free consent” of the individuals concerned. However, it does not specifically mention this group between 16 and 18, who can marry with parental consent. I think this needs clarifying. We must make as certain as possible that children involved have given their consent too.
I was horrified years ago, when I worked among Indian and Pakistani communities as a doctor, at how many of my patients were whisked away from school and married as soon as they were 16 years old. I remember two girls in particular, who were twins, who had done absolutely brilliantly in their O-levels. They were crying as they told me that it was now time to go back to the subcontinent to be married to men whom they had never seen, one of whom was illiterate. All their hopes of university and a career were dashed by parental consent to their marriage.
I thought the practice had nearly died out until the all-party group which I chair produced a report called A Childhood Lost. We heard from many witnesses who related their stories of being taken abroad for a holiday, only to be shut away on arrival until their marriage to an unknown groom had taken place. There were others whose religious marriage had been contracted during early childhood on a holiday and then was ratified with parental consent as soon as they were 16 years old. All of this happened with total disregard of the wishes of the young people concerned.
We know that marriage as early as 16 is a public health issue as well as a violation of human rights. It takes away opportunity for education and economic independence; it is associated with violence, rape and sexual abuse; it contributes to higher rates of maternal morbidity and mortality and contributes to poor child development. We know that around 5,000 to 8,000 young people are at risk of being forced into marriage in this country every year, based on research done by our Government in 2011. A higher number may not have been counted because they were over 16 and it will be argued that the parents have not forced the marriage but have given their consent.
This is my last ditch attempt to try to strengthen this Bill. I ask the House to support these amendments that I have put forward, which apply to Scotland as well, as an attempt to ensure that consent to marriages has also been given by the two children to be married in that age group. I think that the consent should be given verbally and in writing.
Lord Ahmad of Wimbledon
Hearing what the noble Baroness and, indeed, the noble Lord, have said, with the leave of the House, I will return to this issue. I will consider its practical application with my noble friend. When the noble Lord, Lord Harris, was speaking, I was listening attentively but, as he rightly said, I was waiting for inspiration from the Box. This is too important an issue to deal with in a non-comprehensive way so, as I said, I would like to return to it.
Baroness Hamwee
My Lords, when the Minister is considering this with his advisers, on the point about an application to the court, will he consider both the practicality and the legal capacity of the people we are concerned about to make that application?
Lord Ahmad of Wimbledon
That is a valid point. I have had discussions with officials on the issue of ensuring assistance. If someone has not had the mental capacity to consent, would they have the mental capacity to take up the issue? That is a point understood and well made.
I hope that, based on the assurances and clarification that I have given that we will look at the issue again, at this juncture the noble Baroness will be prepared to withdraw her amendment.
Baroness Hamwee
My Lords, I entirely agree with what lies behind these amendments but have one concern about them, with which the noble Lord may be able to help me. We heard in an earlier debate on the Bill that a number of police and crime commissioners are already dealing with anti-social behaviour as one of their objectives. I assume that, as they are doing that, they are able to do so. Therefore, I wonder whether it is necessary to refer specifically to this Act, as it will be, in the second of the noble Lord’s amendments in this group.
Given that we already have a requirement under new subsection (1A) of the relevant Act for each of the responsible authorities to have regard to the police and crime objectives, I am not sure whether the proposed new subsection (1B) is necessary. We often hear that things are not necessary but it is helpful to be clear about them. However, my real concern is whether, by referring specifically to the Anti-social Behaviour, Crime and Policing Act, there might be a suggestion that it should have priority over other legislation which could be listed among the objectives. The relevant police reform Act, the obligations of the police and crime commissioners and the police and crime plans use wide and general terms. The Anti-social Behaviour, Crime and Policing Act, as it will become, will not be the only legislation to which all responsible authorities need to have regard, so I am concerned about knock-on effects outside what we are considering at the moment.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 10 months ago)
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Lord Ahmad of Wimbledon
My Lords, Amendment 22 is in similar terms to the one tabled in Committee by my noble friend Lady Hamwee and proposed by the Joint Committee on Human Rights in its report on the Bill. The amendment will specify in the Bill that when considering whether to make a criminal behaviour order, the court must be satisfied to the criminal standard of proof that the offender has engaged in behaviour that causes or was likely to cause harassment, alarm or distress to any person.
The government position was that, as the case law is clear on this point, there was no need to provide for the criminal standard in the legislation. This approach is in line with that taken in other legislation providing for other types of civil preventive orders. However, on reflection, we are satisfied that there are sufficient grounds here for taking a different approach. Part 1 expressly provided that an IPNA was subject to the civil standard of proof so, unless express provision was made in Part 2, we accept that there could be some doubt that the criminal standard would apply in proceedings in respect of the criminal behaviour order. This amendment therefore removes any such doubt. I beg to move.
Baroness Hamwee (LD)
My Lords, I am grateful to the Government for having reflected and I thank them for the amendment.
Lord Ahmad of Wimbledon
My Lords, the Bill confers the power to issue a community protection notice on the police, local authorities and persons designated by a local authority. Provision is made for items used in the commission of the offence of breaching a notice to be forfeited or seized on the order of a court. As my noble friend Lady Hamwee pointed out in Committee, forfeited items must be handed over to a constable and disposed of by the relevant police force. Similarly, the power to seize items is vested in a constable. My noble friend suggested that amendments be made to confer similar powers on local authority personnel in the interests of parity. The Government are satisfied that this would be a sensible extension of these provisions and Amendments 40 to 45 to Clauses 47 and 48 modify the provisions accordingly.
My noble friend also tabled amendments in Committee which sought to enable persons authorised by a local authority to serve a closure notice. I said then that I could see merit in such an approach and that is why the Government have tabled amendments to achieve just that. Amendments 63 to 70 would allow the local authority to contract out the service of the closure notice, while the decision to issue the closure notice would continue to rest firmly with the local authority. I commend the amendments to the House.
Baroness Hamwee (LD)
My noble friend Lord Greaves often describes what this House is about as ensuring that Bills are workable. That was what was in my mind in tabling these amendments at the previous stage. I do not suppose that the world will change dramatically as a result of them, but I am glad that we are making the Bill more workable at local level. I am grateful for that.
Lord Greaves
My Lords, I suppose that I ought to say thank you. As my noble friend Lady Hamwee said, when amendments come back like this from the Government, you sometimes think that all the time and effort spent in Committee has produced something worth while. Therefore, I am very grateful to the Government: when I saw this particular amendment, I thought that it was a late Christmas present.
It is an odd amendment because it is an odd new clause, including two completely different things. However, both are very welcome. The reference to the rights of freedom of expression and freedom of assembly are extremely useful. With this Bill—and all the fuss this afternoon bemused me a little—I have always been of the view that the public spaces protection order provisions had the potential to be a greater danger to freedom of speech and assembly and to the civil right to protest and so on than the injunctions for the prevention of nuisance and annoyance. The reason, as the Minister said when he introduced an earlier amendment, is that PSPOs are about territory and areas, and therefore, unless very specific provisions are made, they apply to everybody. Unlike IPNAs, which are injunctions against individual people or groups of people, as I understand it public spaces protection orders, which can last for up to five years and are renewable, would apply to everybody and stop normal activities such as handing out leaflets, parading with banners, making speeches and holding meetings. Therefore, this part of this new clause is extremely useful and valuable and the Government are to be congratulated. I am a little bemused as to why on earth they did not just produce a clause such as this and attach it to IPNAs, as that might have defused a great deal of the fuss earlier today. However, that is for the Government to think about, not me.
The publicity stuff is useful. A lot of this brings together what is already in different bits of the Bill and puts it in one place. The specific provisions are very useful. My amendment is just to query the difference in subsection (4) of the proposed new clause, under the definition of “necessary publicity”,
“in the case of a proposed order or variation, publishing the text of it”,
and,
“in the case of a proposed extension or discharge, publicising the proposal”.
I am not quite sure what the difference is there, and this is to probe that in a minor way. I am grateful for the inclusion of the county councils and parish councils under “the necessary notification”, which is common sense, but sometimes you put forward amendments on these matters and common sense does not always apply. On this occasion it has and again I am very grateful.
My final point is that one of the things that my friend Norman Baker sent to me was a draft of the Anti-social Behaviour, Crime and Policing Act 2014 (Publication of Public Spaces Protection Orders) Regulations. This point is not exactly in this amendment but perhaps noble Lords will bear with me for two sentences. The regulations set out the instructions to local authorities that where a public spaces protection order has been made it has to be published on the council’s website and the council has to,
“cause to be erected on or adjacent to the land in relation to which the public spaces protection order has been made … such notice … as it considers sufficient to draw the attention of any member of the public using the land to the fact that a public spaces protection has been made and the effect of that order being made”.
It is the same for variations.
Again, this is very welcome. The fact that it will be in regulations is welcome, because councils will not be able to get out of it. If the notices fall into disrepair over time, they will have to replace them and keep the information before the public. I put these amendments forward in Committee, and I am grateful that the Government are taking them up and putting them into a statutory instrument regulations. I thank the Government for this amendment and those in relation to the community remedy documents, where, as the Minister said, the Government have taken up my suggestions about consulting the local authority. That will be in the Bill. This is all excellent stuff. Thank you very much.
Baroness Hamwee
My Lords, may I say a word following on from Amendment 54? It is on a matter that I raised in Committee, which is how parts of this Bill fit in with the existing nuisance legislation.
My noble friend Lord Clement-Jones and those with whom he worked on what is now the Live Music Act 2012 remain concerned about the possibility of local authorities using public space protection order powers when there is existing nuisance legislation that could be used against a particular nuisance—though I think that they do not regard much music as “nuisance”. There have been some awkward examples of some local authorities banning busking and other live music-making during “reasonable hours”; and when I say that, I would probably agree that they are reasonable, but I do not particularly want to bring that into the equation here. During hours when there have been a small number of complaints, the local authorities would argue that such action is reasonable and there is a concern that the powers might be used far more extensively than the Government would have in mind. They have spoken to me about balancing competing rights between freedom of expression and the right to peaceful enjoyment of one’s possessions—in this case the items that are being used for busking.
I am making the point now in the hope that the Government may be able to say something about guidance on the fit between the statutory powers under this Bill and statutory nuisance. I raised the issue at the previous stage following discussions with the Chartered Institute of Environmental Health. I know that officials are working on this area of the guidance but I also know that those who have been in touch with me will be grateful if they can have further discussions on and further input into what will now be statutory guidance. Clearly those who are working on these issues day-to-day still feel uncomfortable that their concerns about what I called “workability” have not quite been taken on board.
Lord Taylor of Holbeach
I thank my noble friends Lord Greaves and Lady Hamwee for their hard work on this section of the Bill. They have proposed a number of amendments, many of which have informed government thinking. Indeed, these government amendments are based on ideas that came from the debates we had in Committee with them. We have yet to dispose of my noble friend’s Amendment 55, but I hope he will at a suitable moment see fit not to move it.
The role that my noble friend Lady Hamwee has emphasised depends on the statutory guidance, which is very important in this area. This is a matter for consultation. We want to get the statutory guidance right and ensure that it allows councils maximum flexibility. We do not want to miss the chance, particularly as the guidance will now be statutory, of making sure that we give background information on the exercise of all the elements of these parts of the Bill for the efficient use of anti-social behaviour powers.
I hope I have reassured my noble friend Lady Hamwee on the importance we attach to the guidance and my noble friend Lord Greaves about our recognition of the need to publicise what is going on in connection with the consultations that will take place.
Lord Taylor of Holbeach
I am sure someone will know the answer to that; I am not entirely sure. “Publish”, I suspect, implies that it is in a particular form; “publicise” is perhaps multiple publication. However, I am only hazarding a guess, without being particularly good in my command of language.
Baroness Hamwee
I will not speculate about whether “publish” is a technical term, which I think it probably is. “Publicise” is about spreading it around in a practical way.
However, returning to my question, will the guidance —I hope it will—make clear that, where possible, it would be more appropriate to use existing legislation, such as noise abatement notices, than these wider powers?
Lord Taylor of Holbeach
It may be that that is one of the things that is considered in the guidance. We will make use of what we have available to us. There is no repealing of the Noise Abatement Act 1960, for example, in the Bill.