Criminal Finances Bill

Debate between Baroness Hamwee and Lord Rosser

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

[Baroness Hamwee]

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

[Lord Rosser]

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

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

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

--- Later in debate ---

[Lord Rosser]

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

[Baroness Hamwee]

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

Criminal Finances Bill

Debate between Baroness Hamwee and Lord Rosser

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

[Baroness Hamwee]

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

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

“fundamental components to an effective supervisory regime”.

TI also quotes the Macrory report:

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


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

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

[Lord Rosser]

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

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

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

Policing and Crime Bill

Debate between Baroness Hamwee and Lord Rosser

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

[Lord Rosser (Lab)]

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

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

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

and, crucially, that,

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

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

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

the Association of Policing and Crime Chief Executives—

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

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

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

[Baroness Hamwee]

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

“in such manner as the commissioner thinks appropriate”,

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

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

Debate between Baroness Hamwee and Lord Rosser

Thursday 15th December 2016 Lords Chamber

[Baroness Hamwee (LD)]

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

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

we have heard about that—

“and that the misuse is having harmful effects”.

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

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

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

[Lord Rosser (Lab)]

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

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

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

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

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

Policing and Crime Bill

Debate between Baroness Hamwee and Lord Rosser

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

[Lord Rosser]

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

[Baroness Hamwee]

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

Policing and Crime Bill

Debate between Baroness Hamwee and Lord Rosser

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

[Baroness Hamwee]

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

[Lord Rosser]

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

Investigatory Powers Bill

Debate between Baroness Hamwee and Lord Rosser

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

[Baroness Hamwee]

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

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

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

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

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

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

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

[Lord Rosser]

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

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Rosser, and will resist the temptation that he laid in my path. As he observed, the government amendments have been tabled to give effect to the recommendation of David Anderson’s bulk powers review.

The review demonstrated that the bulk powers are crucial. Mr Anderson’s report concludes that the powers,

“have a clear operational purpose”,

and,

“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”,

and that, where alternatives exist to their use,

“they were likely to produce less comprehensive intelligence and were often more dangerous (for example to agents and their handlers), more resource-intensive, more intrusive or – crucially – slower”.

The review also concludes that bulk powers are vital across the full range of security and intelligence agency activity, including counterterrorism, cyberdefence, combating child sexual exploitation and organised crime, and supporting military operations; and that they have been used to disrupt terrorist activity, prevent bomb attacks, facilitate the rescue of hostages, thwart cyberattacks and save lives.

Mr Anderson’s report included a single recommendation, which was:

“The Bill should be amended to provide for a Technology Advisory Panel, appointed by and reporting to the IPC”—

that is, the Investigatory Powers Commissioner—

“to advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability and development of techniques to use those powers while minimising interference with privacy”.

Following careful consideration of this recommendation, we agree with Mr Anderson’s assessment that those authorising, approving and overseeing the exercise of bulk powers must be alert to the impact of technological change on those powers’ utility and impact. These amendments therefore give effect to Mr Anderson’s recommendation in full.

The amendments provide that a Technology Advisory Panel must be established by the Investigatory Powers Commissioner and, in line with Mr Anderson’s recommendation, members of the panel would be appointed by, and clearly accountable to, the commissioner. They also provide that the role of the panel is to advise the Investigatory Powers Commissioner, the Secretary of State and Scottish Ministers on precisely those matters set out in David Anderson’s recommendation —namely, the impact of changing technology on the exercise of investigatory powers, and the availability and development of techniques to use such powers while minimising interference with privacy. The Investigatory Powers Commissioner would have the power to direct the panel to provide advice on any issue relevant to these matters.

While David Anderson’s review was in relation specifically to the bulk powers in the Bill, we agree with his view that there is no reason to restrict the scope of the Technology Advisory Panel just to those powers. Indeed, the panel giving advice in relation to the targeted powers could be just as valuable. As such, the amendments make clear that the panel’s role would extend to providing advice on all investigatory powers whose exercise is subject to review by the commissioner, which of course includes all the investigatory powers under the Bill.

To ensure that the panel would be able to undertake its role effectively, the amendments also make clear that its members would have the same right to access information as judicial commissioners. This means that any relevant person, such as any member of a public authority, must disclose or provide to a member of the panel all such documents and information as that member may require in order to carry out their functions.

We also agree with David Anderson that it should be mandatory for the Technology Advisory Panel to produce an annual report on the exercise of its functions. The amendments would therefore require that the panel make such a report to the Investigatory Powers Commissioner as soon as reasonably practicable at the end of each calendar year. At the same time as providing the report to the commissioner, a copy would also need to be sent to the Secretary of State and to Scottish Ministers where the report related to matters for which Scottish Ministers are responsible. To ensure sufficient transparency about the panel’s work, the amendments would require the Investigatory Powers Commissioner to include information about the work of the panel in their annual report.

I turn to the opposition amendments that have been tabled to the new clause establishing the Technology Advisory Panel. The first of these amendments would expand the role of the panel explicitly to provide advice to the commissioner on safeguards. While I appreciate what is intended by the amendment, I do not think it is necessary. The panel’s role is to advise on the impact of changing technology on the exercise of investigatory powers. Therefore, if technology changes in a way which means that existing safeguards are no longer appropriate or if new safeguards are needed to protect privacy, the panel can provide such advice to the commissioner and the Secretary of State. The panel must provide advice when asked to do so, but may also provide advice as it considers appropriate. While I appreciate the intent behind the amendment, I believe that the clause as drafted already provides for such advice to be given by the panel. Therefore, I do not believe that the noble Baroness’s amendment is necessary.

The second amendment to which she referred would expand the role of the panel to provide advice on an additional matter, namely,

“the impact of changing technology on the interpretation of the law and any amendments to legislation required to ensure the application of the provisions of this Act to changed technology”.

This amendment is neither necessary nor desirable. The role of the panel would, rightly, be squarely to provide advice on the impact of technology on the exercise of investigatory powers. This clearly defined role will ensure that members of the panel will be exactly what we need them to be: technical experts. David Anderson’s recommendation was designed to fill a gap. He was conscious that the Investigatory Powers Commissioner and judicial commissioners will be senior judicial figures. So, while they will be experts in the law and the interpretation of the law, they will not necessarily be experts in technology. What he felt was needed, and what the Government agree is needed, is technical experts to provide technical advice. In seeking to expand the panel’s remit to provide legal advice as well, I strongly fear we would end up with lawyers rather than technical experts. Indeed, David Anderson specifically warned that,

“the technological expertise of the TAP should not be unduly diluted”.

I pause to wonder whether one could ever dilute something with a lawyer, but I continue. That is exactly what this amendment would do, and that is why we firmly believe that it should be resisted.

This brings me to the amendment, which would permit the commissioner to make a report on his or her views about the legal operation of the Bill but would not place a duty on the commissioner to do so. I appreciate the sentiment behind the amendment, but I believe it is unnecessary. Clause 212 already gives the Investigatory Powers Commissioner a very wide remit to report on any matter relating to the functions of the judicial commissioners. That will, of course, permit the IPC, as he or she thinks fit, to report on the legal interpretation of the Bill. However, I hope that the IPC will not feel it necessary to do so, or at least to do so often. That is because the Bill serves to put beyond doubt the powers available to the state and the safeguards that apply to them. In the words of David Anderson, the Bill,

“restores the rule of law and sets an international benchmark for candour”,

but if the commissioner felt the need to report on the legal operation of the Bill, he could already do so.

Finally, Amendment 178C would require the panel to have regard to the same matters which a public authority must have regard to, as set out in Clause 2, which is referred to as the privacy clause. I appreciate the spirit of this amendment, but I believe it is unnecessary. Clause 2 is already clear that whenever exercising certain powers, such as to authorise warrants, all public authorities must have regard to the issues outlined in the privacy clause, but of course the Technology Advisory Panel will not be exercising such powers, so the amendment does not, in that context, make sense. If the intention is that when the panel gives advice it should bear in mind the various privacy considerations contained in Clause 2, then the amendment is also unnecessary, since the requirement, contained in government Amendment 178, that the panel advise on,

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

already includes advising on the ability to exercise those powers within the statutory framework and subject to all the safeguards contained in the privacy clause. Of course, the whole point of the Technology Advisory Panel, as specified in the government amendment, is to advise on techniques to “minimise interference with privacy”. So I really think that this amendment is unnecessary.

I invite the noble Baroness to withdraw the amendment.

Investigatory Powers Bill

Debate between Baroness Hamwee and Lord Rosser

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

[Lord Rosser]

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

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

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

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

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

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

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

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

[Baroness Hamwee]

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

Policing and Crime Bill

Debate between Baroness Hamwee and Lord Rosser

Wednesday 14th September 2016 Lords Chamber

[Baroness Hamwee]

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

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

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

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

“in the interests of public safety”.

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

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

[Lord Rosser]

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

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

and,

“in the interests of public safety”.

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

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

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

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

and it being,

“in the interests of public safety”,

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

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

[Baroness Williams of Trafford]

My Lords, where a PCC is interested in taking responsibility for fire and rescue, he or she will work with the local fire and rescue authority to prepare a business case setting out their assessment of the benefits and any costs of a transfer. The business case will then be subject to local consultation. The business case would need to show the Home Secretary how the proposals would be in the interests of economy, efficiency and effectiveness on the one hand or public safety on the other. The Home Secretary is able to make the order only if she is satisfied that one or other of these tests has been met. Amendments 12, 30 and 44 would instead require both tests to be satisfied. Amendment 99 seeks to apply the same change to the single employer model operated by a combined authority mayor.

The provisions as currently drafted mirror those for fire and rescue authority mergers. Section 2(2) of the Fire and Rescue Services Act 2004 sets out that the Secretary of State may make a scheme combining two or more fire and rescue authorities only if it would be in the interests of economy, efficiency and effectiveness or public safety. This is a long-established test, enacted by the previous Labour Administration, for the closer alignment of two services, and we therefore do not agree that an amendment is required.

We would expect that any assessment of the impact of a proposed transfer of governance on effectiveness would include an assessment of its impact on public safety, which is a primary function of the emergency services. In forming a view on the first test of economy, efficiency and effectiveness, the services’ role in protecting the public should therefore be paramount in the PCC’s consideration.

However, the provisions which, as I have said, mirror those that have been tried and tested for fire mergers, also provide for a separate test based on public safety. There may be exceptional circumstances where a current service is failing to protect the public and urgent action is required. In such a case, it is right that the Home Secretary should be able to make a Section 4A order solely on the grounds that to do so would be in the interests of public safety.

While I do not agree with the proposed amendments, I recognise the principle behind them. Police and fire and rescue services perform an important function in protecting the public, and we would not want a transfer of governance to have a negative impact on public safety. It is absolutely not the intention for these provisions to permit cases that would save money but damage front-line provision—which I almost said in my answer to Amendment 1—and the Home Secretary would not approve such a proposal. Indeed, such a proposal would not satisfy the test that it would be in the interests of economy, efficiency and effectiveness for a Section 4A order to be made.

However, there might be other ways of incorporating the spirit of these amendments in Clause 8 of and Schedule 1 to the Bill in order to make it absolutely clear that there is no question of an order being made that would have a detrimental impact on public safety. If the noble Lord, Lord Rosser, would be content not to move the amendment, I will reflect further on what he and the noble Lord, Lord Paddick, have said in advance of Report, although they will understand that I cannot give a commitment at this stage to bring forward a government amendment.

Amendments 10 and 11 are on assessing the duty to collaborate. I cannot be so accommodating with these amendments. As I have set out, where a PCC wishes to seek responsibility for fire and rescue, they will be required to prepare a local case setting out their proposal. The Home Secretary will then give consideration to whether it would be in the interests of economy, efficiency and effectiveness or public safety for the order transferring the functions to be made.

Amendments 10 and 11, proposed by the noble Baroness, Lady Hamwee, in the place of the noble Lord, Lord Paddick, would, in effect, additionally require the Home Secretary to assess the extent to which opportunities for collaboration under the provisions of Chapter 1 of Part 1 had been maximised before she decides whether to agree to the PCC’s business case for a Section 4A order.

I do not agree that such additional steps are required. The duty to collaborate and the fire governance provisions in the Bill are distinct. It is not necessary for a PCC to have exhausted all local opportunities for collaboration in order to make a case for a transfer of governance. While PCC governance of both police and fire and rescue services can maximise the opportunity for collaboration between policing and fire and ensure that best practice is shared, the benefits extend beyond collaboration alone. As Sir Ken Knight found in his efficiency review, the directly accountable leadership of police and crime commissioners can clarify accountability arrangements to the public.

On the basis of that and the undertaking that I will reflect further on Amendments 12, 30, 44 and 99, I hope the noble Lord, Lord Paddick, will be content not to press his amendment.

Investigatory Powers Bill

Debate between Baroness Hamwee and Lord Rosser

Monday 5th September 2016 Lords Chamber

[Lord Rosser]

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

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

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

“extend and augment the oversight”,

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

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

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

[Baroness Hamwee]

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

“extend and augment the oversight”.

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

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

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

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

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

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

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

on the Secretary of State to consider,

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

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

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

--- Later in debate ---

[Baroness Hamwee]

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

[Lord Rosser]

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

Investigatory Powers Bill

Debate between Baroness Hamwee and Lord Rosser

Monday 5th September 2016 Lords Chamber

[Baroness Hamwee]

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Rosser (Lab)]

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

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

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

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

Immigration Bill

Debate between Baroness Hamwee and Lord Rosser

Tuesday 10th May 2016 Lords Chamber

[Baroness Hamwee (LD)]

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

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

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

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

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

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

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

[Lord Rosser (Lab)]

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

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

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

Immigration Bill

Debate between Baroness Hamwee and Lord Rosser

Tuesday 26th April 2016 Lords Chamber

[Baroness Hamwee (LD)]

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

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

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

[Lord Rosser (Lab)]

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

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

--- Later in debate ---

[Baroness Hamwee]

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

[Lord Rosser]

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

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

Immigration Bill

Debate between Baroness Hamwee and Lord Rosser

Tuesday 12th April 2016 Lords Chamber

[Baroness Hamwee]

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

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

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

His Recommendation 10 was that they should be excluded.

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

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

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

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

He added that the Government’s view,

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

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

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

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

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

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

Our report went on to say:

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

The report continued:

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

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

[Lord Rosser]

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

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

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

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

--- Later in debate ---

[Lord Rosser]

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

[Baroness Hamwee]

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

Immigration Bill

Debate between Baroness Hamwee and Lord Rosser

Monday 21st March 2016 Lords Chamber

[Lord Rosser (Lab)]

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

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

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

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

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

[Baroness Hamwee (LD)]

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

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

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

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

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

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

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

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

Immigration Bill

Debate between Baroness Hamwee and Lord Rosser

Tuesday 15th March 2016 Lords Chamber

[Baroness Hamwee]

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

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

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

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

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

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

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

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

[Lord Rosser]

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

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

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

In his conclusions, Mr Shaw stated:

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

He ended by saying:

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

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

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

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

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

Immigration Bill

Debate between Baroness Hamwee and Lord Rosser

Wednesday 9th March 2016 Lords Chamber

[Lord Rosser]

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

“knows or has reasonable cause to believe”,

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

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

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

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

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

[Baroness Hamwee]

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

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

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

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

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

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

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

Immigration Bill

Debate between Baroness Hamwee and Lord Rosser

Tuesday 9th February 2016 Grand Committee

[Baroness Hamwee]

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

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

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

So far, so good.

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

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

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

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

“and for different roles or descriptions of roles”.

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

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

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

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

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

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

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

The Race Equality Foundation says,

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

It is obviously concerned about these requirements expanding that likelihood.

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

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

It talks about:

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

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

The institute also points out that:

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

Another of its comments says,

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

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

[Lord Rosser]

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

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

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

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

Immigration Bill

Debate between Baroness Hamwee and Lord Rosser

Monday 1st February 2016 Lords Chamber

[Baroness Hamwee]

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

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

delivering,

“better value for the taxpayer”.

[Lord Rosser]

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

--- Later in debate ---

[Baroness Hamwee]

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

[Lord Rosser]

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

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

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

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

--- Later in debate ---

[Lord Rosser]

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

[Baroness Hamwee]

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

Immigration Bill

Debate between Baroness Hamwee and Lord Rosser

Monday 1st February 2016 Lords Chamber

[Baroness Hamwee]

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

[Lord Rosser]

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

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

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

Psychoactive Substances Bill [HL]

Debate between Baroness Hamwee and Lord Rosser

Tuesday 26th January 2016 Lords Chamber

[Lord Rosser (Lab)]

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

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

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

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

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

[Baroness Hamwee (LD)]

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

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

Immigration Bill

Debate between Baroness Hamwee and Lord Rosser

Monday 18th January 2016 Lords Chamber

[Baroness Hamwee]

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

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

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

[Lord Rosser]

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

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

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

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

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

Asylum Support (Amendment No. 3) Regulations 2015

Debate between Baroness Hamwee and Lord Rosser

Tuesday 27th October 2015 Lords Chamber

[Baroness Hamwee (LD)]

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

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

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

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

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

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

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

save as regards the non-cash items.

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

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

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

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

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

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

were,

“recognised as essential living needs for this group”,

that is, babies and children, but were,

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

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

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

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

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

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

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

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

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

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

[Lord Rosser (Lab)]

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

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

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

Psychoactive Substances Bill [HL]

Debate between Baroness Hamwee and Lord Rosser

Tuesday 30th June 2015 Lords Chamber

[Baroness Hamwee]

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

[Lord Rosser]

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