Covid-19: UK Border Health Measures

Baroness Hamwee Excerpts

Thursday 4th June 2020 Lords Chamber

[Lord Rosser (Lab)]

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

In the Statement, the Home Secretary said:

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


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

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

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

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

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

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


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

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

[Baroness Hamwee (LD)]

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

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

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

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

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

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

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

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

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

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

I thank noble Lords for their questions. The science advice has been consistent. It has been clear that

“as the number of cases in the UK decreases, the potential proportion of imported cases may increase”.

So, as noble Lords have said, we need to manage the risk of infections being introduced from elsewhere. When the virus was at its peak, these measures would have been ineffective.

SAGE minutes of 23 March stated that

“numbers of cases arriving from other countries are estimated to be insignificant compared with domestic cases, comprising approximately 0.5%”.

It is for SAGE to determine when to publish its advice. Of course, the minutes have been published and are on the GOV.UK website. The noble Lord, Lord Rosser, asked what SAGE thinks of certain government decisions; it is for SAGE to advise the Government rather than approve government decisions. He asked about the next review date and whether there would be an Oral Statement on each review date. I am not sure about that, but I am happy to commit to doing one—and if I do not, I am sure that noble Lords will ensure that I do.

The noble Lord, Lord Rosser, also asked about the tourism industry. I recognise that the measures will have an impact on tourism and the aviation industry, which are significant contributors to the UK economy. The Government continue to support businesses in the tourism sector through one of the most generous economic packages provided anywhere in the world. We have always recognised that the measures we have taken to limit the spread of Covid-19 will have a substantial impact on our economy, including on sectors such as tourism, but that was essential to protect the NHS and save lives. The Government will continue to work with the travel industry and other countries through forums such as the OECD and the G20 to co-ordinate an international response. We want to ensure that the UK remains an internationally competitive destination for business and leisure and that, when it is safe to do so, UK residents can resume travel and support the UK’s outbound tourism sector.

The noble Lord, Lord Rosser, talked about people travelling from the Republic of Ireland to Northern Ireland. Those arriving in England on a journey from another part of the CTA—Ireland, the Isle of Man and the Channel Islands—will be required to provide locator details and self-isolate only if they have entered the CTA within the last 14 days. For example, if they travel to England through another part of the CTA but their journey started from a destination outside the CTA within the last 14 days, they will have to self-isolate only until they have spent a total of 14 days in the CTA. Those who have been in the CTA for longer than 14 days will not have to provide locator details or self-isolate.

The noble Baroness, Lady Hamwee, asked about the penalty for breach. Given the high levels of compliance we have seen to our measures to date, we expect that the majority of people will do the right thing and abide by these measures. The police will continue to use their powers proportionately and will engage, explain, encourage, and only as a last resort enforce. That is how they have acted all through this, but they will take enforcement action against the minority of people who endanger the safety of others. That is the right thing to do.

British nationals and foreign citizens who fail to comply with the mandatory conditions could face enforcement action. A breach of self-isolation would be punishable with a £1,000 fixed-penalty notice in England or potential prosecution and unlimited fine. The level of fine will be kept under review and immigration action will be considered as a last resort for foreign nationals. The legislation is created under the Public Health (Control of Disease) Act 1984.

In terms of the proportion of arrivals who will be exempt, we think that it will capture an estimated 11% of arrivals. The noble Baroness also asked about travel to and from the airport. It is being advised that you do not use public transport to travel to and from an airport but take the car of the person you are staying with.

Windrush Compensation Scheme

Baroness Hamwee Excerpts

Wednesday 6th May 2020 Lords Chamber

[Baroness Hamwee (LD)]

This has been a heartfelt debate, and I am only sorry that the system has not shown every speaker on the screen, although we have heard from them all other than my noble friend Lord Dholakia. As I have been able to see what my noble friend was going to say before the debate started, I hope he will have another opportunity to make what I know would have been a very clear and tough speech.

Let us contrast the photographs of the bright, eager faces of people arriving here in the 1940s and 1950s, looking forward to a new life and contributing to the UK, with those who later found out that not only were they not wanted, they were not recognised. The terms for what many of them did are topical: key workers, essential workers. Wendy Williams as well as parliamentary committees have used case studies that include current photographs. The experiences of individuals illuminate the whole. The media have used case studies too, and I pay tribute, as others have done, to the investigative journalists who have shone a light on the scandal. Amelia Gentleman’s book is analytical, distressing and shaming. The compensation scheme, in the words of the recent Bill, applies to

“certain categories of persons in recognition of difficulties arising out of an inability to demonstrate lawful immigration status.”

Those are weasel words. The recognition is that the Home Office was unable to recognise the law or rights. They are rights, not something that some people deserve, which is the language used too often by some Ministers, although not, I think, by the noble Baroness. It is as if they have to be earned and can be forfeited.

Victim blaming is never attractive. We are told that people should have contacted the Home Office, but it is a bit rich to have expected the Windrush generation to understand what the Home Office did not. Could any of us list all the provisions of our complex immigration legislation, any more than we could provide evidence for every year of our residence? I threw away my school reports when I cleared my mother’s house. The Home Office threw away records when it cleared an office, despite junior officials protesting about how often they referred to them.

I want to ask just a few questions beyond those asked by other noble Lords about the scheme and about the people who have been affected by what happened. What have the Government learned about outsourcing public sector work to the private sector? Have they logged the losses of jobs, of homes, of medical treatment and benefits denied? How many people were detained? I cannot let this moment go by without mentioning the detention, neither necessary nor proportionate when there is no risk of absconding, of people who were not criminals. In 2020, in the midst of a pandemic, we are putting at risk, by continuing their detention, people who are not criminals or who have served their sentence.

Why do some components of the claim to the scheme have to meet the criminal standard of proof, or its equivalent? This reflects the original problem that the Home Office required standards of proof that were difficult if not impossible to meet; to quote the review,

“an environment for staff to reject rather than be proportionate or objective in each case.”

Why is there not a longer cut-off date for claims? After all, the Government, in the shape of HMRC questioning taxpayers, can go back six years. How many people are now thought to have a claim and how many died before they even received an apology?

The Minister will resist any suggestion of a read-across to the EU settled status scheme, although I will make one, as did the noble Baroness, Lady Bull. I accept that some experience has been applied, but although the Windrush scandal may have been unforeseen, it was both foreseeable and avoidable. I would like to think that, in applying the settled status scheme, the culture of disbelief and of carelessness and ignorance has been ditched in favour of the recognition of a duty of care to applicants. The NAO referred to this too. The large proportion of grants of pre-settled, not settled, status that have been made surely raises a warning flag of problems down the line when applicants discover that what they have been granted is not what they had understood it to be.

It is right that the department should reflect on the review, but not all the recommendations require a pause. The hostile environment was designed to be read as hostile and intolerable to immigrants, and it was racist. Merely rebranding it takes political loyalties too far. Wendy Williams is measured but clear, recommending

“a full review and evaluation of the … policy and measures—individually and cumulatively … whether they are effective and proportionate in meeting their stated aim, given the risks inherent in the policy … and its impact on British citizens and migrants with status, with reference to equality law and particularly the public sector equality duty.”

Legislatively that environment can be dismantled now.

When the previous Home Secretary responded to a report by the Joint Committee on Human Rights, of which I was a member, along with the noble Baroness, Lady Lawrence, and the noble and learned Lord, Lord Woolf, on the detention of members of the Windrush generation, he referred to establishing a casework profession with a culture that puts the customer—perhaps not the term I would have chosen—at the heart of decision-making, and ensuring better use of face-to-face engagement. I think the Minister will acknowledge that there was scarcely any such engagement.

I do not know whether the Minister has up-to-date news on work on cultural change. She has referred to some of the processes now being undertaken. These may have been the subject of her letter of 30 April, which I do not seem to have received, so I apologise if I have raised points which are covered in that letter. Ms Williams’ review was of course not of the whole of the Home Office; nevertheless, it is surely widely applicable. She is clear about the importance of diversity in the Home Office, not just at junior levels, and about engagement with citizens, applicants and staff.

Ms Williams is clear too that some of her recommendations, if implemented, will have tangible outcomes: the level of successful appeals, the quality of casework, and better informed and better evaluated policy. Other outcomes are intangible but essential: the look and feel of the department, with a values-led culture and a mission bought into by all levels of staff.

The Government as a whole should reflect on the review, because there are lessons for the whole of government. I look forward to hearing in a few months’ time what lessons have been learned, and how they are being applied, so that all that is done is, to use Ms Williams’ phrase, “rooted in humanity.”

Domestic Abuse

Baroness Hamwee Excerpts

Wednesday 29th April 2020 Lords Chamber

[Baroness Williams of Trafford]

It was at the forefront of our minds that, as we entered lockdown, some people would be affected not necessarily by Covid-19 but by violence within the home. It is very gratifying to hear that noble Lords are so concerned about it. One of the first things I did was to get in touch with the domestic abuse commissioner, Nicole Jacobs; everything that she requested from the sector has now been put in place, including the #YouAreNotAlone campaign and other funding packages. There is also IT support, which is incredibly important; if you cannot get out of the house, you need to get that support somehow.

[Baroness Hamwee (LD)]

The current pressure-cooker situation does not have a retirement age—quite the opposite. Older people can be particularly vulnerable, not just to alcohol-fuelled abuse but particularly to financial abuse. The specialist charity which supports older people is also taking referrals from large organisations, carers and care homes. Will the Government ensure that both awareness and financial support extend to what is a less well-known problem?

[Baroness Williams of Trafford]

The Government, particularly the Home Office, are getting more and more evidence of financial abuse, particularly among older people. Economic abuse is now seen as a form of domestic abuse, so the noble Baroness is absolutely right. There is not only economic abuse of the elderly; as was raised with me in a Question last week, older people are more subject to scams.

Child Refugees: Turkey and Greece

Baroness Hamwee Excerpts

Wednesday 11th March 2020 Lords Chamber

[Baroness Williams of Trafford]

I understand what the noble Lord is saying, in the sense that those children are now in a European country as opposed to coming from whatever region in the world they come from. We will absolutely stand by our commitment to helping children from around the world who need our help. We are in dialogue with Greece and we will work closely with UNHCR, which both identifies and refers children who may need our resettlement.

[Baroness Hamwee (LD)]

My Lords, it is likely that some of the children in this situation have relatives in the UK and therefore have a right to be reunited with their family in this country. What proactive—I stress that word—steps are the Government taking to help them exercise their right? Secondly, when do the Government expect to publish the Statement on family reunification, as required by legislation?

[Baroness Williams of Trafford]

In terms of proactivity, clearly, we engage with our European counterparts. We are still engaged in the Dublin process, which goes both ways; in fact, we take more children than we transfer back. On the Statement, we will lay an Act Paper by 22 March on our policy regarding future arrangements between the UK and the EU for family reunion of unaccompanied asylum-seeking children.

Domestic Abuse Bill

Baroness Hamwee Excerpts

Monday 9th March 2020 Lords Chamber

[Baroness Williams of Trafford]

I think the one way the new Bill differs from the original Bill is that it introduces a statutory duty on tier 1 local authorities in England to provide support for victims of domestic abuse and their children in safe accommodation. The other thing that might help the right reverend Prelate is that statutory guidance will also reflect the effect on children.

[Baroness Hamwee (LD)]

My Lords, while I welcome the Bill, which was well overdue even before it was delayed by events, can the Minister tell the House when she anticipates that, assuming its smooth passage through Parliament, it will actually come into force?

[Baroness Williams of Trafford]

All things being equal, it should be in force this time next year.

Extradition Act 2003 (Amendments to Designations) Order 2020

Baroness Hamwee Excerpts

Monday 9th March 2020 Grand Committee

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

My Lords, this order is essential for the UK to fulfil its obligations under several treaties. It is required to implement an extradition agreement between the EU and Norway and Iceland to which the UK is party during the transition period, and to implement bilateral extradition treaties with Kuwait and Morocco. I shall explain in a little more detail why these changes are being brought at this time and the effect that they will have on our extradition arrangements.

First, the first part of this order will replace the designation of Norway and Iceland as category 2 territories, currently based on the European Convention on Extradition. It makes it clear that Norway and Iceland become territories designated under category 1 of the Extradition Act, based on the surrender agreement between the EU and Norway and Iceland, which entered into force on 1 November 2019. The agreement will facilitate the exchange of warrants between judicial authorities, which is executed through a simplified decision-making system.

In short, this will mean that Norway and Iceland will be treated in a similar way to EU countries for the purposes of extradition. However, there are some differences. Notably, parties can refuse to extradite their own nationals and can refuse extradition on the basis that the offence concerned is “political”. This agreement also allows parties to require that an extradition take place only where the offence concerned is a criminal offence in both countries—something known as “dual criminality”.

As the Committee is aware, during the transition period, the EU justice and home affairs tools that the UK has opted into, including this agreement, will continue to apply. The legislation will ensure that there is no disparity between our international obligations and domestic law, which could result in legal uncertainty and impunity for wanted fugitives.

The second part of this order will implement the extradition treaties concluded between the UK and Morocco in 2013 and the UK and Kuwait in 2016. The designation of these countries under category 2 of the 2003 Act will allow the UK to process extradition requests from Kuwait and Morocco in line with the obligations of these treaties. Both treaties set out a timeframe in which a full extradition request must be provided to the UK by Kuwait and Morocco when an individual has been arrested on a provisional arrest warrant.

This order therefore also ensures that this is reflected in our legislation by setting out that, in the case of Kuwait and Morocco, the judge must receive the papers within 65 days of the person’s provisional arrest, in line with standard practice. This allows for the countries to provide the request to the Secretary of State within 60 days, as the treaty provides for, and for the Secretary of State to have five days to certify the request and send it to the appropriate judge.

Once the designations have been made, the Kuwait and Morocco treaties will be ratified. The introduction of the formal bilateral basis for extradition for conduct covered by these treaties will lead to a more efficient and effective process for extradition between the UK and the respective countries. Morocco and Kuwait are important partners for the UK, and these treaties will enhance our ability to work in close co-operation with them on important issues.

I urge the Committee to consider the amendments made by this statutory instrument favourably to ensure that the United Kingdom can comply with its obligations under the relevant international extradition arrangements. When considering any request for extradition, our arrangements are balanced by the provisions in the Extradition Act 2003, which serve to protect an individual’s rights, including their human rights, where extradition is not compatible with our law.

Extradition is a valuable tool in combating cross-border crime, and offenders should not be able to escape justice simply by crossing international borders. No one should be beyond the reach of the law. Having efficient, clear and effective extradition arrangements is vital for safeguarding our security and preventing fugitives escaping justice. I commend the regulations to the Committee and beg to move.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for explaining the order. Kuwait and Morocco both still carry the death penalty; according to Human Rights Watch, there were seven executions in Kuwait in 2017, and I understand that it outlaws same-sex relations. Does the Minister have any information about seeking assurances in the past from these countries? She says that they are important partners, but are they trusted partners—as regards their judicial system or how politically expedient their approach to these matters sometimes is?

Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020

Baroness Hamwee Excerpts

Monday 9th March 2020 Grand Committee

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

My Lords, these regulations are introduced under the powers in Section 11 of the European Union (Withdrawal Agreement) Act 2020. They provide an important right of appeal against immigration decisions on citizens’ rights. The regulations are required to meet our obligations under the withdrawal agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement.

The Government have been clear in our commitment to protect the rights of EU, other EEA and Swiss citizens who have made this country their home. They are our friends, our family and our neighbours, and we want them to stay.

The EU settlement scheme makes it easy for EU citizens and their family members who want to stay in the UK to get the immigration status they need. As announced last month, we have already had more than 3.2 million applications, with nearly 2.9 million people granted status. If an applicant disagrees with the decision in their case, they can apply again to the scheme completely free of charge and they have until 30 June 2021 to do so. They can also apply for an administrative review, meaning that their case is reviewed again by Home Office caseworkers, if they are refused on eligibility grounds or granted pre-settled status rather than settled status. The fee for this service, which is £80, will be refunded if the original decision is withdrawn due to a caseworker error. These appeal rights provide further reassurance to EU citizens that they remain welcome and can continue to live and work in the UK and that we will uphold our commitment to guarantee the rights of EU citizens.

The regulations basically do two things. First, they establish appeal rights against a wide range of decisions affecting a person’s right to enter and live in the UK under the EU settlement scheme. This includes those refused leave under the scheme or those granted pre-settled status rather than settled status. It also includes those refused entry clearance in the form of an EU settlement scheme family permit or travel permit. The regulations provide an appeal route for those whose rights under the scheme are restricted; for example, where their status is revoked or curtailed.

Secondly, the regulations ensure that existing rules and procedures are applied to the operation of appeal rights. They go further than required under the agreements by providing appeal rights in line with the UK’s more generous domestic implementation. This means that anyone who can make an application under the scheme, including non-EU family members, will have a right of appeal if refused or granted pre-settled status.

Appeals under the regulations will follow the same process as current immigration appeals. They will be heard by the immigration and asylum chamber of the First-tier Tribunal. With permission, there will be a further onward right of appeal to the Upper Tribunal on points of law. The exception is where the decision is certified on national security grounds or where sensitive information cannot be made public. As with current immigration appeals, these cases will be referred to the Special Immigration Appeals Commission.

The regulations are undeniably complex. This is because of the number of situations requiring a right of appeal under the agreements. There is also a need to apply existing rules relating to appeal rights, which are themselves complex.

However, we are committed to making the appeals process as simple as possible for applicants. The decision letter will tell them whether they can appeal and will direct them to the relevant information on GOV.UK. There is also support available by phone, in person or in writing for those who do not have access to online facilities or who need additional assistance.

These regulations ensure that we comply with the requirements of the agreements and are an essential part of our commitment to protecting the rights of EU citizens. I commend them to the Committee. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister. She mentioned administrative review. I want to take this opportunity to ask her about the experience so far. I came across a blog, although I cannot remember whose. I think it was a barrister’s. It seems to have become the custom for members of the Bar—I am very glad of it—to blog as their way of advertising their services. I will probably get some complaints, having said that. This blog said that, following a freedom of information request, the inquirer found that 89.5% of applications that had gone for administrative review were successful.

The noble Baroness mentioned refunds. Does she know how much has had to be refunded, what the associated costs of doing so might be and whether the Home Office has a view about why this is happening with so much success at that stage?

Since the order came into force on 31 January, when will time start running in the case of decisions made before today or before the matter goes to the House—in other words, before the SI is approved?

I confess to having some concern about Regulation 14, which allows for an appeal from outside the United Kingdom. Will it not be the case that many appellants will have been required to leave? Concerns have been expressed in other parts of the immigration forest about the difficulties of appealing from abroad.

Am I right in thinking that this SI will be the basis for any claim with regard to invalidity—for instance, if the Home Office has said that the applicant is not an EU citizen and is therefore not in the settled status scheme?

Given the number of grants of pre-settled status that have been made, has the Home Office made any assessment of the numbers of appeals against that status from people who think that they should have been granted full settled status? It seems to me that there could be an early and considerable spike in the work.

The Minister mentioned the considerable help currently available from a number of organisations that have received grants to assist applicants for settled status. The EU Select Committee—it may have been the EU Justice Sub-Committee—heard from some of the organisations a couple of weeks ago. At that stage, they were waiting to hear whether their funding would continue after the end of this month. If she has any news on that, the Committee—and, even more so, the organisations concerned—would be glad to hear it.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the noble Baroness, Lady Williams of Trafford, for explaining the regulations to the Grand Committee this afternoon. The noble Baroness, Lady Hamwee, raised all the points I was going to raise—

[Baroness Hamwee]

Sorry about that—

[Lord Kennedy of Southwark]

It is absolutely fine. I shall not repeat them because it would detain the Committee longer than necessary, but the noble Baroness has raised some very important points. I support the regulations and we are pleased they are here, but our concern and worry is that the people who are vulnerable are those who have not picked up on the need to use this system. If they do not use it, they will find themselves, in June 2021, to be in the UK illegally, even if they have been here for many years. That is what we are worried about.

The other point of concern is that there have been a few issues in the Home Office in terms of appeals and other problems in the past. We are very worried that someone might find themselves in difficulty, so what we are looking for from the Minister is some reassurance about that and about how people will be treated. What will the Government do to ensure that people know they need to apply for this? It may well be that some of those people who are here from elsewhere in Europe are in quite low-paid jobs, do not have a lot of money and are just not picking up on it. What we do not want is a situation where people do not understand that they need to apply and find themselves in difficulty with the authorities and potentially being removed from this country when, had they applied, they would have been given the right to stay here. That is the reassurance every noble Lord here is looking for. In principle, I am very happy with there now being a right to appeal, so I will leave it there.

[Baroness Williams of Trafford]

My Lords, I thank both noble Lords for their points. I thought this would be the easy SI and that every noble Lord would be so happy with the appeal processes. The noble Baroness, Lady Hamwee, asked why so many appeals are successful. An appeal may succeed where new information is provided.

[Baroness Hamwee]

Does the Minister mean an administrative review?

[Baroness Williams of Trafford]

I apologise. I meant that an administrative review may succeed when new information is provided. I understand that about 900 applications for the admin review have been received. The noble Baroness asked when it starts—I am assuming 31 January.

On what happens if people miss the deadline, we have been very clear that where there are reasonable grounds for missing the deadline people will be given a further opportunity to apply.

[Baroness Hamwee]

I am sorry; I did not think I had asked terribly difficult questions. On my question about the time running, there are time limits for appeals, but we have gone beyond the point when the SI is effective because that date is 31 January. I am not clear whether the time from 31 January to now is taken off the time available to an appellant to get the appeal in. This is quite a practical point. I will go on rambling so that the Minister can talk to her officials and is able to get this on to the record as I think that would be helpful. Perhaps I was clear in my question.

[Baroness Williams of Trafford]

We have some clarity now. It will run—is the noble Baroness asking me how long it will run for?

[Baroness Hamwee]

No. I am asking whether the period between 31 January and whatever the date is in March counts for the period towards the number of days within which an appeal has to be lodged because the order is in force but people will presumably will not be making applications under it until has gone through the parliamentary process.

[Baroness Williams of Trafford]

They are already doing it.

[Baroness Hamwee]

I wonder why we are here.

[Baroness Williams of Trafford]

On pre-settled status appeals, there are 900 applications for administrative review, but whether they are for pre-settled status I do not know. If I have the figures, I will provide the noble Baroness with them. On her question about immigration control, this is not for the purposes of immigration control. I thought the noble Baroness might be concerned about that. The funding for the groups that are helping runs through the financial year.

[Baroness Hamwee]

I am sorry for treating this as a conversation, but I understand that their funding goes to the 31st of this month, but they need to know, if they do not know already, whether they will be able to employ people to continue the service.

[Lord Kennedy of Southwark]

I understand that when this came up in the Commons the Minister said the thing should be resolved in a couple of weeks. That was a week ago.

[Baroness Williams of Trafford]

That is because we will be announcing the arrangements for the financial year 2020-21 shortly—in the Budget, I am guessing. I hope that rather clumsily answers the noble Baroness’s questions.

[Baroness Hamwee]

I wish to make it clear from these Benches that we do not think that is satisfactory. We understand about financial years and so on, but for a small organisation, or a medium-sized or quite large organisation, which does not know whether it will be able to continue the service it is pretty difficult that it will be within a couple of weeks of the end of the year.

[Baroness Williams of Trafford]

I totally understand that point. It is frustrating for any group or organisation waiting for future funding announcements to be in this position right at the end of the financial year; I really get that. I just want to answer the last point made by the noble Lord, Lord Kennedy, on vulnerable people. As he knows, we have set out some funding for organisations who will help vulnerable people. I think they are the last cohort of people on whom our attention will need to focus: as he says, people who do not even know that they must apply. That work is well under way across the country and, given the number of applicants, which is 3.2 million, it is clearly going well for most people, but he is right to raise that final cohort.

Extradition (Provisional Arrest) Bill [HL]

Baroness Hamwee Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Thursday 5th March 2020 Grand Committee

[Baroness Hamwee (LD)]

My Lords, red notices are indeed controversial because they are open to abuse by authoritarian regimes seeking the apprehension of dissidents or “criminals” whose crime is dissidence. The House has talked about abuse in the cases of Russia, China, Turkey and a number of other countries. I understand that there are also sometimes queries about red notices from Latin American and Middle Eastern states. Of course there is a risk of political abuse, corruption and malicious notices.

I had forgotten, but recalled when I was preparing for today, the case of the footballer granted refugee status and residence in Australia three years ago, after fleeing Bahrain. He was arrested on his honeymoon in Thailand and held in detention for a while until he got back to Australia. Questions were raised about Interpol’s neutrality. I appreciate that reforms have been introduced over the past five or so years, but controversies do and will continue over red notices and Interpol’s diffusions, which serve as an international alert mechanism.

It is important to have as much transparency and availability of information as possible on how the recipient of the notice treats its subject, which is why the involvement of the judiciary at a later stage has such importance, and on how the NCA or any other designated authority triages the information—we seem to have adopted that term.

The fact that there is a risk of abuse seems no reason not to proceed with the legislation and I acknowledge that the amendment does not propose that. In any event, I understand that the certificate, not the red notice, is the basis for arrest, which is an important distinction.

I wonder whether this is the moment to ask the Minister about the EU’s future relationship with other European countries. The document published last week on the future relationship refers to achieving extradition arrangements with

“appropriate further safeguards for individuals beyond those in the European Arrest Warrant.”

I am sorry that I did not think to warn the Minister that I would ask this, but I imagine that it is pretty much at the top of everybody’s minds. What are the “appropriate further safeguards”? In other words, what are the problems with European arrest warrants that led to that statement in the document?

I am a member of your Lordships’ EU Select Committee. We took evidence on Tuesday about the future relationship. I asked an academic who was giving evidence what he thought this was about. He said that it was probably about human rights concerns. Of course, the noble Baroness will understand that I will not object to human rights safeguards.

On the noble Lord’s second amendment, as I have said, transparency is important. However, I was not aware that there was a major concern about discrimination, which is what is protected—as it were—by the protected characteristics. One would perhaps want to know the situation in other countries. I thank him for raising the issues and giving us the chance to discuss these subjects.

[Lord Inglewood (Non-Afl)]

My Lords, if I may, I shall raise one small point. We are talking here about the ability to effect an arrest, not an obligation on the person who discovers and identifies somebody who is suspicious and to be arrested. To clarify, if it against public policy for somebody to be extradited, there is no obligation on the person concerned who has been granted this power to carry out the arrest. Is that correct?

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Moved by

[Baroness Hamwee]

3: The Schedule, page 2, leave out lines 17 to 19
Member’s explanatory statement
This amendment precludes the period of imprisonment extending beyond 24 hours before the person is brought before a judge.

[Baroness Hamwee]

My Lords, I tabled this amendment following the speech of the noble and learned Baroness, Lady Clark of Calton, at Second Reading. She raised the issue of the time that a suspect—the person who has been arrested—might spend in custody before coming before the court. Someone arrested on the Friday before a bank holiday weekend might not go before the court until the Tuesday, if one excludes weekends and bank holidays. The impact assessment tells us that the legislation is likely to involve only half a dozen people, so without wanting to impose too much on our judiciary—I accept that it is pretty hard pressed these days—I do not see that it would be too much of an extra strain on them or on the police to deal with these matters over the weekend.

I am grateful to the Minister for calling me just before we started the Committee stage to say that, basically, I had got the drafting wrong. Okay, this is what Committee stages are about: to raise issues and to see how we can deal with them. The schedule provides that in calculating the 24-hour period before a person is brought before a judge, no account is taken of weekends, bank holidays and so on. Reference is made to provision elsewhere. I understand that the noble Lord, Lord Parkinson, will deal with this matter. I look forward to him explaining this to me because I believe the argument is that that would mean that no one could be arrested on a Saturday or a Sunday. I am not quite sure that I follow that, but no doubt he will put that right.

When the noble and learned Baroness, Lady Clark, spoke at Second Reading on 4 February, she asked, at col. 1743, for some statistics on the number of arrests. I thought I should check on whether those have been made available. It may be that the matter was not pursued, the Minister having spoken to her. But as she said then, if there is a problem in relation to extradition to category 2 territories, the solution might be better co-ordination between the police and the judiciary to enable a warrant to be obtained at an early stage, or the involvement of the judiciary in a screening process instead of the designated authority. This is a useful opportunity for us to consider these points and I beg to move.

[Lord Kennedy of Southwark]

I rise briefly to welcome the noble Lord, Lord Parkinson of Whitley Bay. If he will now be covering some Home Office matters, we will be spending a lot of time together and will get know each other well, so that will be welcome.

The amendment moved by the noble Baroness, Lady Hamwee, is very sensible and I am happy to support it. She set out the issue clearly: someone can be picked up on the Friday before a bank holiday weekend and potentially wait until the Tuesday morning before being brought before a judge. That is a fair point. If people are arrested, they should be brought before a judge quickly, so I look forward to the noble Lord’s response.

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[Lord Parkinson of Whitley Bay]

I thank noble Lords for their forbearance on this, my first outing. It is our intention to replicate the existing provisions under the Extradition Act. It may be helpful for me to speak to the noble and learned Lord and others in greater detail about the statutory intention of what the Government propose. We seek to mirror the provisions already there, which are caught up in the usual formulation of “as soon as practicable” that already exists in the Extradition Act. There are precedents for these arrangements for provisional arrest under Part 1, under which a person may be provisionally arrested without warrant and brought before the appropriate judge within 48 hours of their arrest, subject to exactly the same conditions as set out in the schedule under discussion here.

My noble friend Lady Williams of Trafford has already cited the letter sent by the Director of Public Prosecutions to the Security Minister earlier this week, which welcomes the way the Bill, as drafted, will avoid unnecessary delay and ensure initial judicial scrutiny as early as possible, before the case proceeds through extradition proceedings in the usual way. It is for that reason that the Government are not persuaded that the amendment is needed. I hope that gives some reassurance to the noble and learned Lord, the noble Baroness and others.

[Baroness Hamwee]

My Lords, I did not expect it to go in this direction, but I thank the noble Lord for his explanation. I am left a bit thrown and not entirely satisfied. I decided that I would not bring my iPad into Committee to scroll up and down through the 2003 Act; I reckoned it could wait until later, but clearly I should do so.

If this provision is to mirror the 2003 Act, which talks about bringing someone before a court as soon as practicable and in any event within 48 hours, that still does not meet the provisions of new Section 74A(4) because, as I said, if someone is picked up on a Friday afternoon, 48 hours lands them on a Sunday. There is an important point of principle in this: the way it operates—the noble Lord used the term “workability”—in terms of the position of the Executive and the work it has to do with the police and the rights of the individual who is the subject of this. That is why the judiciary is involved: to ensure that that person’s rights are properly protected. It looks as if the noble and learned Lord, Lord Mackay, wants to intervene.

[Lord Mackay of Clashfern]

I shall wait until the noble Baroness has finished.

[Baroness Hamwee]

I think I pretty much have finished.

[Lord Mackay of Clashfern]

I think the position is that, as times have changed and we are more modern than we once were, a judge is now available at all times to deal with this matter. Therefore, it is not necessary to leave out weekends or bank holidays because the reason that was put in was that the judge might not be there. Now, under the rules of the system, the person can have his case before the judge in the holidays because a judge is always there. Therefore, it needs to be changed to take account of that. That is my understanding. I hope the noble and learned Lord, Lord Judge, agrees with me.

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[Baroness Hamwee]

As my noble friend Lord Paddick says, this is what Committee is about. He has reminded me that some courts are open on a Saturday to deal with custody cases, which adds another dimension to this. I look forward to discussing this to get the right balance, which is what we always seek. I thank the noble Lord, Lord Parkinson. I am sorry that, as the noble and learned Lord, Lord Judge, said, we have been bowling him googlies on his first outing. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Moved by

[Baroness Hamwee]

4: The Schedule, page 3, line 9, at end insert “and
(e) it is satisfied that the request is not politically motivated.”Member’s explanatory statement
This amendment is to probe the propriety of requests, and whether paragraph (d) provides adequate protection.

[Baroness Hamwee]

My Lords, I beg leave to move Amendment 4 and will speak to my Amendments 11, 11A and 11C.

Amendment 4 would insert into the criteria for a certificate under new Section 74B that the designated authority is

“satisfied that the request is not politically motivated.”

This takes us back to our first debate and is intended to probe how the propriety of requests is dealt with. We already have new Section 74B(1)(d), which says that the authority

“is satisfied that the seriousness of the conduct constituting the offence makes it appropriate to issue the certificate.”

I am not sure quite what that paragraph means. What is “appropriate”? It may go only to the offence for which the possible sentence meets the threshold. What is the seriousness of conduct constituting the offence? How does one assess the conduct as distinct from the offence as it is legally defined in the country in question? I am quite prepared for the Minister to tell me that this is in the 2003 Act and that there is case law on it. I will wait and see.

Amendment 11 would amend new Section 74C, which concerns the validity of requests, including from the requesting authority. The designated authority —in our case, the NCA—must believe that the authority in the other state has the function of making these requests. As my explanatory statement says:

“The amendment is to probe whether the designated authority should rely on a request if there is any doubt as to whether the requesting authority has this function,”.


The word “believes” made me hesitate over this provision.

Amendment 11A would provide that, where someone has been discharged, the person should not be arrested again in reliance on the same certificate. There should be a further certificate. I am not sure that we have the amendment in quite the right place. However, it seemed worth raising the issues of concern to the organisation Justice, which has been following—and, in some cases, leading us on—the proceedings on the Bill. It is concerned about it being quite wrong for there to be a new power in respect of the same extradition request should the designated authority issue a fresh certificate. Justice understands that the Government do not intend for fresh certificates to be issued where the first has been produced incorrectly and that this would be a matter for judicial scrutiny. I am again grateful to the Minister for having a word with me about this. I hope she will put on record what I know to be the Government’s position on this.

Amendment 11C would provide for

“the affirmative procedure for regulations to designate the ‘designated authority’.”

We have been told that the designated authority will be the National Crime Agency, although it is not specified in the Bill. Given that reorganisations in the police service are not that unusual, I understand why one might need the opportunity to change the reference. There is clearly concern about ensuring that a future designated authority has the requisite expertise, as there is in the service at the moment. It would therefore be appropriate to use that procedure. I beg to move.

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[Baroness Williams of Trafford]

I thank the noble Lord, Lord Kennedy, and the noble Baroness, Lady Hamwee, for their points on these amendments. They have been grouped together as dealing with the functions of the designated authority and the criteria applied by it in certifying requests.

Amendment 4 proposes a new criterion for certification. This would require the designated authority to be satisfied that the request is not politically motivated. Making consideration of political motivation a precondition of certification for the designated authority would reverse the present position for arrests under the Extradition Act 2003. Presently, the courts are required to consider during the substantive extradition hearing whether any of the statutory bars to extradition apply. These statutory bars include whether the request for extradition is made for the purpose of prosecuting or punishing an individual on account of their political opinions—that comes under Section 81 of the Extradition Act 2003. The Government’s position remains that it is right that the judge considers these points based on all the evidence before him or her during the substantive hearing and not the NCA prior to arrest. It is the judge who is ultimately accountable.

Furthermore, we are all aware that the Extradition Act contains substantial safeguards in respect of requests motivated by reason of the requested person’s political views. These safeguards will continue to apply, and we fully expect the courts to continue to exercise their powers of scrutiny as usual.

Arguments of political motivation are of course not usually simple. It is right that the question of whether an individual extradition request can be described as politically motivated should be assessed by a judge before an open court. It is vital, of course, that the requested person should be able to put their arguments on this basis to a judge, but it is also crucial, in the fulfilment of our obligations under the international arrangements on extradition that give rise to such proceedings, that the requesting authority should be able to respond to such arguments and put their own case as to why the request is not politically motivated. This should be openly and fairly arbitrated, so importing this consideration into the process for determining whether an individual may be arrested would be at odds with existing extradition law. Noble Lords will be aware that judges and justices of the peace are not required to consider such factors when deciding whether to issue an arrest warrant under Section 71 or Section 73 of the 2003 Act.

Were the designated authority to make such a deliberation in effectively, it would need to be able to invite representations on the point from both the requesting authority and the requested person in each case before certification. Not only would this be hugely resource-intensive, it would also advertise to the wanted person that they are wanted. I should note that the designated authority, as a public body, would already be under an obligation to act compatibly with convention rights under Section 6 of the Human Rights Act 1998. At the point of certification, this will include consideration of whether an arrest is ECHR-compatible.

I bring the attention of noble Lords to the types of territories proposed as appropriate specified territories. These are democracies whose criminal justice systems are rooted in the rule of law. I am certain Parliament would not accept the addition to the schedule of territories that we believed would send the UK politically motivated arrest requests. I hope I have been able to persuade the noble Baroness that there is no gap in safeguards here and that, consequently, she will be content with withdraw her amendment.

She also asked what is meant by the “seriousness of the conduct”. The language mirrors the test in Part 1 of the Extradition Act 2003. As she thought, there is indeed case law on the point. The intention is to capture only conduct sufficiently serious to ensure that the power is used only where proportionate. For example, the minor theft of an item of food from a supermarket or a very small amount of money is unlikely, without exceptional circumstances, to be sufficiently serious. Only when the designated authority decides that the offence satisfies the test will it be able to certify the request.

I turn now to Amendment 5, which seeks to define the designated authority as the National Crime Agency in the Bill. Our approach here mirrors that of the designation of the authority responsible for certification of European arrest warrants under Part 1 of the Act. The Government consider that the designation of the authority responsible for issuing a certificate is an appropriate matter to be left to secondary legislation. A regulation-making power affords the appropriate degree of flexibility to amend the designated authority in light of changing circumstances, including alterations to the functions of law enforcement bodies in the UK. To future-proof the legislation, the Government believe that the current drafting leaves an appropriate amount of flexibility. As I said, the Government’s intention is initially to designate the NCA, which is the UK’s national central bureau for Interpol, as the designated authority. I hope I have persuaded the noble Lord that we have got the balance right and that he will be content not to press his amendment.

I turn finally to Amendment 11, on requests made in the “approved way”. My noble friend’s amendment suggests that a request should be considered to have been made in the approved way only if it is made by an authority that has the function of making such requests in the territory concerned, rather than an authority which the designated authority believes to have this function.

Perhaps I may momentarily be a bit philosophical. The amendment attempts to base the assessment of the authority’s function on an objective truth. That is admirable from the point of view of legal certainty, but the designated authority does not have a monopoly on truth. The best it could do in practice, when making the assessment described in the amendment, would be to decide, to the best of its ability, whether the authority in question has the function of making such requests, arriving at what I think we would characterise as being a belief that it does so. Of course, the designated authority, as a public body, must take decisions that are reasonable and rational.

As such, we expect there to be no difference between how the assessment would be made in practice under the amendment and how it would be made under the existing text. The benefit of the text, as we have proposed it, is that it mirrors language elsewhere in the Extradition Act—for example, when the designated authority under Part 1 may issue a certificate in relation to a warrant and when the Secretary of State may issue a certificate under Part 2.

On the perceived risk implicit in Amendment 11A—that an arrested person could be rearrested for the same thing, having been discharged by a court, perhaps because they were not produced at court on time or for some other failing—I reassure the Committee that this is neither the intention nor the effect of the new sections in the Bill. New Section 74A(8) makes clear that an arrested person may

“not be arrested again in reliance of the same certificate”

if they have previously been discharged. The intention of this drafting is to stipulate that an individual may not be arrested again on the basis of the same international arrest request once a judge has discharged them. This mirrors Section 6 of the Extradition Act 2003, which provides for the same thing, where a person provisionally arrested on the basis of a belief relating to a European arrest warrant may not be arrested again on the basis of a belief relating to the same European arrest warrant.

On top of that, new Section 74B(3) requires that a certificate has to have been withdrawn before any arrest takes place to allow a new one to be issued relating to the same request. This again illustrates that a further certificate cannot simply be issued on the basis of the same request once an individual arrested under this power has been discharged by a judge.

Of course, it is vital that a certificate can be issued on the basis of a new request, or on the basis of a wholly different request, so that an individual wanted for another crime is not immune to any further arrest because they were once arrested and discharged for a different crime. Organised transnational offences, such as people trafficking, often involve offences in different countries, on different dates, with different victims, and no individual should be able to avoid answering for more than one serious crime using a legal loophole. The amendment would create that impunity. For that reason, I hope I have been able to persuade the noble Baroness and that she will be happy not to press that amendment.

Amendment 11C would require an affirmative resolution procedure to apply to any statutory instrument that designates an authority as a “designated authority”. Given that the framework and criteria for the issuing of a certificate are provided for in the Bill, we consider that the negative resolution procedure affords an appropriate level of parliamentary scrutiny. We have plainly set out what the designated authority will do and how they must do it. Which particular body exercises that function is not, in our view, a matter that needs to be subject to debate in both Houses. The use of the power to designate an authority is necessary to accommodate any changing circumstances, including alterations to the functions of law enforcement bodies in the UK, and we consider it appropriate that we can respond to this promptly. The application of the negative procedure is also, again, completely consistent with the procedure for designating an authority for the purposes of issuing a certificate in respect of a European arrest warrant under Part 1 of the Extradition Act 2003.

I am sorry for my long-winded response to these several amendments. I hope the noble Baroness and the noble Lord are happy not to press their amendments.

[Baroness Hamwee]

I do not think the Minister was long-winded; it is quite a long group of amendments. I am grateful to her for that. I should have brought my iPad so that I could have followed all the references to the 2003 Act. I take all the points that the Minister made—in particular, the point about organised crime. One does not always remember how the nature of crime changes. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

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Moved by

[Baroness Hamwee]

6: The Schedule, page 3, line 34, leave out “, vary”
Member’s explanatory statement
This amendment is to probe the variation of a reference to a territory, as distinct from an addition or removal.

[Baroness Hamwee]

My Lords, I beg to move Amendment 6; I also have Amendments 7, 9 and 10 in this group. I start with Amendment 9, which I think is the most important. This amendment would restrict additions to Schedule A1 to one territory at a time. Orders are not amendable; one says either yes or no—and it is rarely no—to the whole thing. Let us consider an order seeking to add, say, Turkey and the Netherlands—it might not happen but I am thinking of two very different states—where one might want more protections than are proposed by the Government, but one would not want to reject an order to add the Netherlands. I think that is a sufficiently stark pairing to enable your Lordships to understand why I am concerned about this. I have written myself a note about the delegated powers memorandum. I cannot now find it but I am sure that it said something quite relevant. I might be able to find it by the end of the debate. Anyway, that is my particular concern. I do not think that I need to expand on it any further. I am grateful to the noble Lord and the noble and learned Lord for adding their names to this.

Amendment 6 is to probe how a territory can be varied, as distinct to being added or removed. It did not seem to me that one could vary a territory to make it part of a state. If it is about a change of name—some states do change their names—surely legislation here is not necessary. Amendment 7 is to take out the provision in new Section 74B of the Act that regulations can amend new Section 74C consequential on the addition, variation or removal of reference to a territory. New Section 74C is about the validity of requests for an arrest, which have to be made in an approved way; so, again, I am probing. What could be amended other than that the request comes from an authority with the requisite function? I table this because I am uncomfortable that there might be regulations in contemplation that widen the category of authorities entitled to make the request.

Amendment 10 would deal with the basis on which the Secretary of State may add a territory. The Minister at Second Reading said that we would apply the provisions only to

“alerts from countries that do not abuse Interpol systems, that respect the international rules-based system and that have criminal justice systems we trust; and only to alerts relating to sufficiently serious offences.”—[Official Report, 4/2/20; Col. 1727.]

I do not quarrel with a word of that. This amendment seeks to transfer those words into the legislation. I beg to move Amendment 6.

[Lord Deben]

My Lords, I very much support this Bill. My Amendment 11B relates to the names of territories that were not in the original legislation but are in this Bill. My noble friend perfectly reasonably suggested that I might be objecting to our extradition system in general and that that would not be suitable. I agree with her. However, this Bill has a list of “trusted partner” countries. That is true of all but one of them. All the others have a system of justice that is removed as far as humanly possible from politics. In this country, we are proud of that. That would not matter if one could not show—as I hope to—that the United States, because of its different kind of legal system, is using the extradition arrangements in a way that my noble friend rightly objects to, and why quite a number of other countries are not this list. The problem is that, by putting the United States on this list, we are making a statement about its use of extradition which seems unjustified. I will explain why.

We know that, unlike with the other countries, there is no reciprocal arrangement because the United States has said that it is contrary to its constitutional arrangements to have reciprocity. Our original Act is not reciprocated by the United States. I find that difficult anyway, but we are not discussing that issue here. In the case of the United States, unlike many other countries with which we have had and probably will have reciprocity after negotiation, we accept that it will not extradite people to us in circumstances in which we are extraditing people to it. We are confirming that by saying that we will extend our extradition procedure—perfectly properly in other circumstances, I think—to enable us to arrest people in the circumstances that this Bill makes clear.

We are very fortunate in this country because the whole system is overseen by the judiciary. It would be arguable that it does not matter because the new arrangements will mean that the judiciary will still be able to oversee that. After all, we are not putting every country on the list. We are not saying that the judiciary oversees everybody; we are saying it about these countries and distinguishing them from others.

I will remind your Lordships about two cases that show why I think that this is very real. We have the case of a woman who killed a British boy in Britain, has admitted it and has not been extradited although we have asked for that extradition. Not only has she not been extradited but the United States has refused to reveal what it claims are the special and secret arrangements under which the extradition cannot take place because the person is supposedly covered by diplomatic immunity. However, the United States will not publicly explain the special arrangement. Not only is the lady not extradited, although we have asked for it, but it is on a basis that the United States has refused to reveal. Were this Turkey, Bangladesh or another country, this would be a very good reason for not putting the name on this list.

There is a second reason: the use of the extradition arrangements to pursue a political or commercial end. For the United States it is very often a commercial end. In this I speak of the case of my former constituent Dr Mike Lynch, chairman of one of our most successful companies. He sold his British company to an American company; it was sold under British law in Britain, bought by an American company and operated in Britain. After a bit, the American company had so badly mucked up the running of this business that it wanted an excuse for the sum it had paid, so it called on the British authorities to prosecute Dr Lynch, saying he had misled it. That may or may not be true. It had done very extensive due diligence before, so it is difficult to believe that so great an American company with so much opportunity to look beforehand should have been misled, but that is what it said.

The British authorities investigated and found that there was no case to answer. Therefore, they declined the prosecution. The American company, Hewlett Packard, perfectly rightly—I have no objection to this—went to the civil courts to claim its case. That case has now been heard at great length. It is probably the longest case of this kind ever held in this country. Dr Lynch was cross-examined for many days. The case is over as far as the evidence is concerned, but there has so far not been a judgment, so we do not know whether the civil courts in this country will find my former constituent guilty or innocent. Hewlett Packard is clearly worried about this case. Indeed, to read it one might be worried oneself if one were on that side. But still, we do not know. It is for the judge to decide.

British justice is known internationally as the fairest system in the world. That is why lots of companies that are not here agree with other companies that are not here for their court cases, should they come up, to be decided in British courts; they know that they will get a fair deal. Hewlett Packard has however demanded that Dr Lynch be extradited from Britain to have the case heard not in this country but in the United States. I am quite sure the reason is that it feels a United States court is more likely to make a decision which pleases it—particularly given the geographical position of the court calling for the extradition and its long-standing relationship with Hewlett Packard—and more likely to accept its case than the British one.

We all know that there are many situations in which British companies have found that courts in the United States make decisions that we would find, let us say, commercially political rather than judicially objective. Here we are, saying that this “trusted partner” should be treated in the same way as Canada, Australia, New Zealand, Switzerland and Liechtenstein, all of which have systems that any of us in this Room would be happy to be tried before, but how many of us would genuinely say that, if we had a commercial disagreement with an American company with power and political punch, we would wish to be charged before an American court? That is a different situation.

I have tabled the amendment not because I seek to undermine the original Act, although I think it was a mistake to allow a non-reciprocal arrangement with the United States. I am merely saying that I do not think that the United States should be one of those countries that benefits from a perfectly proper extension of our laws.

My noble friend said that she would not want to have this kind of arrangement with anyone whose judicial system was subject to political influence. President Trump has pointed out that he has changed the judges in the Ninth Circuit because it was

“a big thorn in our side”.

He has now appointed judges who will not be a big thorn in his side. He has made, I think, 181 judicial appointments and encouraged the majority Republican Senate to change as many as possible while he is there so that they get the judges who will to make the sort of judgments that suit the right-wing Republican that he is.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I will say a word on Amendment 9. I obviously agree with what has been said by a number of noble Lords about it. The views of the noble and learned Lord, Lord Judge, suggest that a Minister putting forward a list would have to be mightily careful that the list was of all good, or at least equally good, countries. If there was a doubtful one it would have to be separate. That lesson should be taken to heart. It is very unwise to have a great big list where we are not sure about two or three countries, because we would just lose the whole lot. I suspect that we may be faced in due course with a fair group about which we have some knowledge already. I do not think that that has anything to do with the Bill, but it might be a consequence of granting this power. I imagine that any Minister contemplating this who wished to be successful would be very careful to leave a country out of a list of very good countries and have it in a separate list if he thought that it would risk the others.

I have my own view on how judges are appointed in the United States and am rather anxious that nothing of the sort should appear here. On the other hand, judges in the United States, although they may be appointed for various reasons, have responsibility as judges. The point about this matter is that extradition to the United States or any other country will be decided by a judge, though ultimately subject to the discretion of the Home Secretary. The judiciary here will be in charge of that and obviously the degree to which the explanation given by the United States carries weight will be quite important.

[Baroness Hamwee]

My Lords, this is an interesting group. With regard to the United States and one of the Five Eyes seeing things a bit differently, if this matter comes back on Report, as it may, it would be helpful if the Minister could explain to the House how the human rights criteria that will be applied at the judicial stage would apply in any given situation without using specific cases. That is part of the whole picture.

On Amendment 6 and my suggestion that the word “vary” be deleted, we are told that this is to future-proof the arrangements in case one part of a territory secedes. I find it difficult to envisage all this and I do not see why the Government would not in that situation just delete the original but add the substituted territory. On Amendment 7, I confess I need to read properly what the Minister said. On the criteria listed in Amendment 10, the Minister said that Parliament would have to reject a territory if the criteria were not met. Actually, that is not the way round the amendment is written. Parliament would not be required to reject it but a reference to a territory could be added “only if”. I think those are different; these are on minima.

However, I see absolutely no down side to agreeing the amendment which at the start I said was the most important of this group with respect to the position of the United States. The justification proposing it is that it is not common practice. That does not mean that it is good practice in every situation. I am absolutely with the noble and learned Lord, Lord Judge, who said that it is entirely consistent with support for the Bill. I will not follow his cricketing analogies because I will probably get them wrong again. As I said at Second Reading, we should not be in the business of bulk orders, if I may put it that way.

The Minister said that the affirmative resolution procedure gave Parliament the opportunity to scrutinise. Scrutiny means different things to different people, but it does not mean that you go straight from scrutiny to the remedy you are seeking. I do not think that it is an adequate response to an amendment which I really do not think would cause, as has been said, much more than a few more pieces of paper—a little more typing and standing up and sitting down. We will come back to this at the next stage. It ought to be such an easy one for the Government to concede to divert us from other amendments. For the moment, I beg leave to withdraw Amendment 6.

Amendment 6 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

12: The Schedule, page 10, line 14, leave out sub-paragraph (2)
Member’s explanatory statement
This amendment removes the provision in the bill that allows regulations to amend, repeal or revoke any provision made by primary legislation.

[Baroness Hamwee]

My Lords, I shall speak also to Amendments 13, while Amendment 14 in the name of the noble Lord, Lord Inglewood, is also in this group. Amendment 12 would remove the provision allowing

“regulations to amend, repeal or revoke any provision made by primary legislation.”

This is something to which I have a natural aversion. I appreciate that the regulations in question, in paragraph 29(2) of the schedule, are limited by paragraph 29(1) which refers to regulations

“consequential on the amendments made by this Schedule.”

Is paragraph 29(2) necessary? It suggests that the drafters were anxious that they did not have time to prepare the Bill. I have looked at what the 2003 Act says on this point. Section 219 provides for amendments, repeals and revocations but can deal only with one

“contained in an Act passed in a Session after that in which this Act is passed.”

I do not think that alters my central point, which is my natural aversion to regulations amending primary legislation. Amendment 13 deals with the same point. I beg to move.

[Lord Inglewood]

My Lords, I shall speak to Amendment 14 in this group. I owe the Committee an apology for not adding an explanatory statement, but essentially this is a probing amendment. The reason is that when I tabled it, I was not entirely sure exactly what my anxieties about the proposed legislation might be, but I have spoken to the Minister about my general unhappiness. Interestingly, the noble Baroness, Lady Hamwee, has just talked about paragraph 29(2). It strikes me as extremely clumsy and I am uneasy about it. As I say, that is why I have tabled this amendment and discussed it with the Minister.

Throughout the passage of the Bill thus far, the Government have emphasised that it is about powers of arrest. Of course, much of the Bill is about those powers, but it is clearly set within the context of the extradition system as a whole. One has not only to look at the Title of the Bill to see that; if you look at its substance, it becomes apparent. In the nicest possible way, I think “the Lady complaineth too much” in talking about the focus of the Bill on powers of arrest. The Bill is essentially about the workings of our extradition system as a whole. As the Committee knows—and does not need me to point out—it is essentially divided into two parts; I oversimplify, of course. There is the bit that relates to the European arrest warrant and the bit that relates to the rest.

--- Later in debate ---

[Baroness Williams of Trafford]

I am very happy to do that.

[Baroness Hamwee]

My Lords, I acknowledged that the regulations referred to in paragraph 29(2) must be within paragraph 29(1). I come back to the point that good housekeeping should be done before a Bill is presented to Parliament, not least because it would reduce the amount of time needed on the Bill in Parliament. For many years, I have recognised that it is a great deal easier to sit on this side of the House or Committee and pick holes than it must be to draft this stuff. Nevertheless, it is our job to pick some holes.

I do not apologise for raising this and cannot say that my concerns are wholly allayed: the words “necessary” and “expedient” were used in the delegated powers memorandum, along with “detailed and technical” about the nature of the amendments. I would like to assure myself that the words in the Bill reflect what has been said. I will possibly talk to the noble and learned Lord before the next stage. I beg leave to withdraw Amendment 12.

Amendment 12 withdrawn.

Immigration: Points-based System

Baroness Hamwee Excerpts

Tuesday 25th February 2020 Lords Chamber

[Lord Rosser (Lab)]

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

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

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

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

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

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

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

[Baroness Hamwee (LD)]

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

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

Yesterday in the Commons, the Home Secretary said the Government

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

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

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

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

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


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

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

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

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

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


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

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

Immigration: Refugee Doctors

Baroness Hamwee Excerpts

Monday 24th February 2020 Lords Chamber

[Baroness Hamwee (LD)]

The noble Baroness, Lady Finlay, referred to co-operation and collaboration between the various agencies and the Government to enable refugees who are doctors to practise. Can we add the availability or non-availability of clinical attachments to that list? After all, many of these doctors are among—I hate the term, but the Government use it—the brightest and the best.

[Baroness Williams of Trafford]

Some clinical attachments will, if people have the skills required, come under the purview of doctors, nurses and other medical staff on the shortage occupations list. If not, obviously the requisite salary will be required.