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

Brendan O'Hara Excerpts

Committee stage & Committee Debate: 6th sitting: House of Commons
Tuesday 16th June 2020 Public Bill Committees

[Holly Lynch]

The new clause would require the Government to commission the Migration Advisory Committee to produce a report on the impact on the health and social care sector of ending free movement.

I very much welcome some of the new developments that the Minister outlined earlier, to do with the changes in the way that the Migration Advisory Committee will operate. The group includes a number of new clauses, and we very much recognise the merits of all of them. In essence, they all plead with the Government fully to think through the implications of putting this hard stop on free movement in place without the systemic reforms to health and social care that would be required to address the workforce issues in those co-dependent sectors.

At the evidence session last week, we heard some pretty damning evidence from witnesses, even though, interestingly, none of them were there explicitly to represent the health or care sectors. Martin McTague of the Federation of Small Businesses told the Committee that the FSB felt that the £25,600 minimum income threshold

“should be lower, because there are quite a few jobs, especially in the care sector, that pay less than £25,600.”

He went on:

“That is why we have called for a care sector visa, because we think the requirements of that sector will always be uniquely different from most of the rest of the economy.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 6, Q5.]

In response to a follow-up question from my hon. Friend the Member for Kingston upon Hull North, Martin McTague said:

“It is clear from the experience that we have had over the last few months that this sector is under massive pressure. Any major changes would be disastrous.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 11, Q16.]

We can all agree that this Bill represents a major change in immigration.

Brian Bell of the Migration Advisory Committee made a number of scathing points, which we should all reflect on. He said that

“immigration has historically been used as an excuse to not deal with the problems of the social care sector.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 21, Q44.]

He is right. The problem is, when we suddenly turn off freedom of movement at the end of December and the Government are not able to deliver the radical reforms required in that timeframe, what happens to social care?

I will answer that. Unless we have a significant breakthrough with a vaccine, care homes and the care sector will still be battling the coronavirus. If we do not do our due diligence on this, by adopting the new clause, the Bill will be set recklessly to undermine social care at a time when it can least afford it.

A MAC report is necessary, and would give the Government an opportunity to develop a coherent strategy by conducting the exercise annually for the health and care workforce. That could inform both the domestic skills agenda and our immigration policy, allowing us to create fast tracks within immigration based on our needs at the time. Without that, the NHS will struggle to function. According to the British Medical Association, 29% of doctors in the NHS are from overseas. Freedom of movement has greatly facilitated that, as for years EEA staff have benefited from the flexibility it grants, allowing them to work in the UK and EEA simultaneously.

We have discussed in earlier stages of the Committee the potential introduction of visas and the costs attached to the changes brought about by the Bill. That might act as a major disincentive against attracting the best talent to the NHS. As always, there should be a clear national commitment to training future healthcare workers. Nevertheless, it is hard to imagine that the domestic workforce alone will be able to deliver. For a long time, the workforce has been supplemented with EEA workers.

The NHS reported nearly 90,000 job vacancies between October and December 2019. That has already led to rota gaps across the medical profession, and to well-founded concerns about the ability to staff services adequately. It can take up to 10 years to train a doctor. It is unrealistic to believe that a domestic push will address that vacancy shortage or likely subsequent shortages due to the UK’s decision to leave the EU and free movement.

Domestic recruitment drives also have barriers to overcome. The Royal College of Nursing has reported that the Government’s much publicised increase of 50,000 nurses consists of 12,000 more international nurses, 15,000 student nurses and another 15,000 retained nurses who had previously left the profession. In reality, therefore, only about 27,000 nursing vacancies have been filled, and that fails to address adequately the 40,000 nursing vacancies reported in the NHS in November 2019.

In the evidence session, Brian Bell, interim chair of the MAC, stated that occupational shortages were

“a failure of the British education system”.––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 24, Q49.]

If the Government seek to prioritise domestic healthcare recruitment over immigration, some pretty urgent steps must be taken to address that.

The threat of ending free movement for the NHS is incredibly concerning. The threat of ending free movement for our social care sector is existential. The proposal to extend the tier 2 visa system to EEA nationals would sever recruitment and compound gaping occupational shortages.

The Institute for Public Policy Research modelled the impact on EEA nationals currently living in the UK and working in social care, and found that 79% of EEA employees—about four in five—working full-time in social care would have been ineligible to work in the UK under the skills and salary thresholds proposed by the MAC. Unison reports that there are currently 110,000 vacancies in social care, and while I suspect the Minister will tell me that his aspiration is to fill those solely through domestic recruitment, I wonder what assurances he can give us that that is possible in the timeframes required.

It was encouraging to hear the MAC report that senior care workers would be eligible to be included in future shortage occupation lists, yet we fear that deterring the recruitment of care assistants and more junior care workers from overseas may lead to a further increase in job vacancies in the care sector. We have all heard the warnings from Brian Bell that migrant workers cannot continue to act as a sticking plaster, working their socks off on low pay to mask the systemic problems in social care, but it is clear that we will be exacerbating the workforce issues impacting on the quality and availability of care unless the Government undertake a full and regular review. I urge the Government to adopt new clause 21 in order to fully understand the ways in which the new immigration system will affect patient care across all health and social care settings.

[Brendan O'Hara (Argyll and Bute) (SNP)]

As always, it is a pleasure to serve under your chairmanship, Mr Stringer. I will speak to new clause 61, which seeks an independent evaluation of the specific impact of the Bill on the health and social care sectors across the United Kingdom. This independent evaluation would follow from consultation between the Secretary of State for Health and Social Care, the relevant Ministers in the Scottish and Welsh Governments, the relevant Northern Ireland Ministers, service providers, those requiring health and social care services, and others. The new clause would require the Secretary of State to lay a copy of that report before both Houses of Parliament

“no later than one year after this Act is passed”,

and would require a Minister to make arrangements

“no later than six months after the report has been laid before Parliament”

for it to be debated and voted on in Parliament.

The new clause has gathered support from service users, third-sector organisations, trade unions and charities from every part of the UK, among them the Scottish and Northern Irish councils for voluntary organisations, Disability Wales, Unison, Camphill, Scottish Care, and the Welsh and Northern Irish branches of the British Association of Social Workers. I think the reason why they and many others have supported this independent assessment is that, as people who work on the frontline of health and social care every day, they are extremely worried that the Bill, which will end freedom of movement and introduce a points-based immigration system, will adversely affect hundreds of thousands of their clients: disabled people, children and young people, older people, unpaid carers and those with long-term health conditions—those who rely most on the health and social care services to look after them every day.

There is no doubt that the current coronavirus pandemic has given us all the opportunity to see just how precious our national health service and social care sector are. The NHS has risen to the challenge magnificently, as has everyone who works in it, and we are all hugely indebted to them. It has also reinforced just how lucky we are to have our national health service—should that have needed reinforcing—and we must do everything we can to protect it, so that future generations can have what we currently enjoy. We cannot afford to take chances with the future of our NHS or our social care services, and I believe that anyone who took chances with them would never be forgiven.

That is why so many in the health and social care sector are deeply concerned about what is contained in the Bill: they recognise that there is already a crisis in social care across the United Kingdom. On top of the seemingly relentless pressure on funding, we have an ageing population with increasingly complex care needs. The health and social care sector is battling every day to find and keep the workforce it requires, yet this Government have cut off a source of labour, with no clear plan as to what will replace it.

At the end of September 2019, NHS England reported having more than 120,000 unfilled posts—an increase of 22,000 on the previous year. Both the Care Inspectorate and the Scottish Social Services Council have found that 40% of social care organisations have unfilled vacancies going back over a year.

--- Later in debate ---

[Kevin Foster]

I have great respect for the hon. Member for Argyll and Bute, but I think people outside the House listening to the debate will wonder whether he has looked at today’s worrying figures on the employment market and the economic impact of covid-19. He asks where people might be found, but a significant number of people will be looking for new employment.

I welcome the opportunity to put on the record again the fact that the Government recognise the vital nature of the health and social care sector to the United Kingdom. I recognise that, in their view, hon. Members tabled the new clauses to protect a key sector. I assure members of the Committee that health and social care will be at the heart of the UK’s new points-based immigration system. The new skilled worker route will be open to a broader range of roles than the current tier 2 general route, following expansion of the skills threshold.

Under the current immigration system, only those coming to do graduate-level jobs are able to come to the UK under tier 2. In the future, our points-based skilled worker route will encompass jobs requiring school leaver qualifications. That means that all migrants—not just those from within the EU or EEA—will be able to apply for jobs meeting the skills threshold, including, as has been mentioned, senior care workers, giving a global reach to recruitment in the sector.

The general salary threshold will be set at £25,600, or the appropriate rate for the job that the person is coming to the UK to undertake. For a number of roles in health and social care, the rate will reflect the current national pay scales. We are also removing the cap and resident labour market test to make it quicker and easier to recruit workers from overseas where necessary. That will benefit all migrant workers and their employers, including those in the health and social care sector.

As with all immigration routes, we will continue to keep the points-based system under review. These changes are the first phase, and we will continue to develop and refine the points-based system based on experience.

[Brendan O'Hara]

On a point of clarity, did the Minister say that there will be sufficient capacity in the labour market to move the people losing their jobs as a result of coronavirus into the health and social care sector? Was that his argument? Does he recognise that there are currently 122,000 vacancies in England alone, and that there are projected to be another 320,000 over the next 10 years due to retirement? Does he really think that that will be made up by people losing their jobs?

[Kevin Foster]

Many people will be surprised to hear the hon. Gentleman suggest that one of the issues that the UK is facing at the moment is a shortage of labour. Sadly, we are seeing the impact of covid, and we know that health and social care will play a key part in providing job opportunities for those who need new employment. I am seeing that in my constituency. Many people would be surprised if there were Members in this building who did not think we should prioritise getting people who have faced the impact of the economic change into new skills and employment. That should not be a controversial point. I suspect that many of his constituents would be rather surprised if that is the point that he wished to make.

[Brendan O'Hara]

I am trying to stick to the Bill, but is the Minister saying to the country and people who are losing their jobs that, contrary to what the Prime Minister and the Chancellor have been saying, those jobs are not coming back, and they had better go find something else? The message has been that this is a temporary blip, we will recover from it, and the jobs will be coming back.

[Kevin Foster]

Thankfully, we will see many jobs come back. The Chancellor himself said that it will be difficult to save every role, and we can see that some of the changes in our economy, particularly in the retail sector, have been sped up. I am sorry that the SNP is looking to put its political philosophy ahead of the practical situation. I do not think it is controversial to say that, in Scotland, where there are vacancies, we should be trying to make sure Scottish-based workers are going back to work. I think the SNP will find it very interesting when it meets the electorate next May and explains why that was not its priority.

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

Brendan O'Hara Excerpts

Committee stage & Committee Debate: 5th sitting: House of Commons
Tuesday 16th June 2020 Public Bill Committees

[Stuart C. McDonald]

The economic impact of coronavirus is of course a tragedy, and every lost job is an absolute tragedy as well. Yes, of course we will focus our efforts on ensuring that people are back in work as soon as we can do that, but we cannot design our immigration system for the next decades based on this calamity. If the only reason Conservative Members can come up with to support this system being implemented in Scotland is that we are going through a pandemic, that is pretty farcical, given that these proposals have been in existence for the last few months, so no, I do not accept that it is any reason for shying away from the points that I am making. The system will cause huge long-term damage to Scotland’s economy and Scotland’s public finances. It is not just me saying that; a whole host of organisations have real concerns.

Again, I am not expecting the Government to do a 180-degree U-turn today, but I do want at least some recognition that there are genuine issues that require more than just our being told that this system will somehow work for Scotland, Northern Ireland or any other devolved nation.

[Brendan O’Hara (Argyll and Bute) (SNP)]

It is a pleasure to serve under your chairmanship again, Sir Edward. Although the United Kingdom’s population is projected to rise by about 15%, it is reckoned that the population of our rural areas, including my own constituency of Argyll and Bute, will fall by as much as 8%. The situation is absolutely unsustainable because, despite Argyll and Bute being an exceptionally beautiful part of the world, we have an ageing and non-economically active population and our young people leave to spend their economically productive years outside Argyll and Bute.

To give credit to the council and to the Scottish Government, they are doing what they can to make Argyll and Bute a place that young people do not feel that they have to leave before coming back to retire—many of them do—but before that long-term goal reaches fruition, a cornerstone of Argyll and Bute Council’s plan for economic regeneration was predicated on continuing access to EU nationals and attracting them into the area. Regrettably, and through no fault of our own, that option has been taken from them; and the UK Government, having taken that option from them, now have a responsibility to provide a solution that will help those areas suffering from depopulation to recover. It is becoming increasingly clear that a major part of that would be the introduction of a regional immigration policy similar to that which works in Canada, Australia, Switzerland and other countries, and one that reflects the different needs of different parts of the country. There is no reason, other than political will, why that cannot happen here.

[Douglas Ross]

Does the hon. Gentleman therefore suggest that if we had an independent Scotland, with its own immigration system, there would be a regional variation between Argyll and Bute and Edinburgh?

[Brendan O’Hara]

Ultimately, that would be a decision for any incoming Scottish Government to make.

[Douglas Ross]

What does the hon. Gentleman think?

[Brendan O'Hara]

Personally, I think that the greater devolution of power, as widely as possible across any nation state, is an exceptionally good thing. Anything that can attract people to come, live, work, invest and raise families in our rural communities must be looked at and broadly welcomed. It was broadly welcomed in the recent Migration Advisory Committee report, which said:

“The current migration system is not very effective in dealing with the particular problems remote communities experience. If these problems are to be addressed something more bespoke for these areas is needed…The only way to address this question in the UK context would be to pilot a scheme that facilitated migration to these areas, then monitor what happens over several years and evaluate the outcomes.”

As my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East said, that idea was welcomed by the right hon. Member for Bromsgrove in a ministerial answer on 23 July 2019, where he accepted the need for the development of a pilot scheme. To date, there has been very little movement and we fear that there has been backtracking by the UK Government about what they plan to do next about setting it up.

The Minister knows that the Scottish Government stand ready to work with him to design and develop a solution that is tailored to meet Scotland’s needs. I can tell him that if the MAC is willing to provide the advice, and the Scottish Government is minded to follow that advice, then Argyll and Bute is prepared to put it itself forward as a pilot area for such a scheme. I spoke yesterday to the chief executive of Argyll and Bute Council, Pippa Milne, who confirmed that the council would be happy to work with the UK Government and the MAC to see how a bespoke regional immigration system would work in practice. Will the Minister act on the MAC recommendation, which was supported by the former Home Secretary, and help Scotland to fight the curse of depopulation?

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to serve under your chairmanship once again, Sir Edward. I will briefly outline our position on amendment 17 and new clause 33. We are entirely sympathetic to amendment 17 for the reasons that have just been outlined, seeking to protect Scotland from the impact of this hard stop on free movement without a plan for mitigating the effects on key sectors. On more rural areas, our focus will continue to be on finding a solution for the whole of the UK rather than just Scotland. We understand that the Scottish National party has not given up on its aspiration of independence for Scotland, but I am afraid that that is where our parties diverge. To have an immigration system for Scotland that is different from that of the rest of the UK without that broader sense of a more regional approach affecting every area of the UK would open a raft of further questions around the management of that system and the means of enforcing it geographically. We say this in the spirit of loving Scotland and wanting it to stay and prosper as part of the United Kingdom. On that basis, we cannot support amendment 17.

We welcome the approach behind new clause 33 in principle, but again feel that it misses the opportunity to consult with the English regions as part of the process. Richard Burge of the London chamber of commerce said in last week’s evidence session that the MAC was slow and unwieldy. He said that it needs

“to involve business much more directly and that, it is hoped, will enable it to be much more responsive”.––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 12, Q18.]

Frustration with the MAC and a genuine and well-founded scepticism that, without radical reform, we would not be able to respond in anything like realtime to emerging workforce issues and skill shortages was a recurring theme in the evidence session and has been throughout our engagement with stakeholders ahead of the Committee. With this in mind, we are inclined to agree that one way of making immigration rules and shortage occupation lists more responsive would be to grant the devolved Administrations a greater say.

As I have already said, however, the glaring omission in new clause 33 is that it does not propose to consider the needs of the English regions in quite the same way. As a Yorkshire Member, it would be remiss of me not to reflect on the fact that the population of Yorkshire is comparable to, or greater than, those of the devolved nations. We hope that a report of the kind outlined in new clause 33 might take into account our needs and those of other regions, alongside those of the devolved Administrations. As a party, we will be looking to review the MAC and the shortage occupation list process in their entirety, shaping our own proposals for transformation in due course. On that basis, we broadly support new clause 33, but we will be shaping our own proposals in the coming months.

[Kevin Foster]

I am grateful to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and his hon. Friends for tabling the amendment and new clause. Having said that, there was a certain predictability about them given the SNP’s aim of separating our United Kingdom and wish for borders to be created across this island.

I turn to some of the more specific points. I have had direct contact with the hon. Member for Na h-Eileanan an Iar. He is very passionate about the Gaelic language and the role it plays in contemporary life. I have also had representations from Ministers and Members in Wales about the strong role that the Welsh language plays in our culture today, enriching our Union as a whole. Certainly, we will see what we can do to incorporate Welsh, Irish and Gaelic into our migration system. It is probably worth noting that the vast majority of fluent speakers of those three languages are either citizens of the United Kingdom or the Republic of Ireland, and therefore effectively not subject to migration control; they have rights to live and work within the United Kingdom and settle in any part of it they choose.

It was interesting to hear the comments of the hon. Member for Halifax, my Labour shadow, about how separate systems would be enforced. Like me, she does not want to see an economic version of Hadrian’s Wall between England and Scotland, although I recognise that others on the Committee perhaps do.

We are looking at how to make the Migration Advisory Committee’s role responsive and how it can choose some of its own reports—we will come on to that when we discuss some of the new clauses. The issue is not purely about a commission. I am thinking particularly about how the MAC can send out a more regular drumbeat of reviews, and commentary on reviews, for the shortage occupation list. That should fit in with our wider labour market policies rather than being considered apart from our skills and training policies. I hope we can find some sensible consensus on that.

The MAC has launched its call for evidence for the shortage occupation list and the advice that it is going to give Ministers about the new points-based system. I hope people will engage with that; there is certainly good strong engagement from many businesses. It would be good to see the Scottish Government promote the idea that businesses in Scotland should be getting involved and positively engage in the process—not least given that the MAC has indicated its intention for there to be shortage occupation lists for each of the four nations of the United Kingdom. It will probably not be a great surprise if many of those are very similar, given the similar types of skill shortages across the United Kingdom.

I was interested to hear the comments from the hon. Member for Argyll and Bute, in particular the idea that we could start having immigration policy for individual council areas. That is interesting. It is worth saying that the MAC suggestion was about remote areas. We both went to see the first HM naval base on the Clyde, in his constituency; as he knows, he is not exactly remote from the vibrant heart of culture and economy that is Glasgow—that is rather different from the concept of, let us say, eastern and western Australia in terms of distance.

I will be very clear: a range of powers is available to the Scottish Government. If the same pull factors that created the challenges today still exist, this look into the migration system is not going to provide a solution. With other Members from Scotland, including my hon. Friend the Member for Moray, we have looked at the fact that there is a determined drive—luckily, the Scottish Government have the powers around economic development—to create those strong opportunities in communities. Ultimately, if we create a migration opportunity but the pull factors are still there and have not been addressed, the situation will become a revolving door. That is why we have to look at those core issues first —why people are moving out—and not just look to a migration system as a magic bullet for those problems.

[Brendan O'Hara]

At the risk of giving a geography lesson, I point out that when the Minister visited Argyll and Bute he visited the easternmost tip of the constituency, nearest to Glasgow. The constituency spreads over 7,500 sq km, has 26 remote island communities and is not part of the vibrant central belt hub. That is why it and many other areas of the highlands and islands of Scotland need a bespoke solution. The problems we face in Argyll and Bute are not those that many large conurbations in the United Kingdom face. There is a need to recognise that.

--- Later in debate ---

[Stuart C. McDonald]

I will come to that point in a minute. In short, the point made to me by the Catholic Church and other faith groups—we had a debate on this issue in Westminster Hall around the time of the changes—is that, actually, the system for non-EEA nationals used to work but does not work now, precisely because of the changes that the Home Office made 18 months or so ago.

The system is much more expensive now, and it is beyond most parishes’ ability to pay the fees for ministers to come in and lead worship. If they come in under tier 5, which is the much cheaper option, they are no longer allowed to lead worship or whatever else. They can perform a range of functions, but not the ones that are really needed, including leading worship.

The issue is already a problem now and it will be made infinitely worse, because at the moment parishes can still rely on priests or other leaders coming from the EEA. They do not have to pay for the expensive tier 2 visa; they can just come in under the free movement of people. When free movement comes to an end, the same regime will apply and parishes will have to pay all sorts of fees, even to have priests come in from France, Italy, Poland or wherever else. They are not looking forward to that prospect at all.

As I was saying, visiting clergy not only allow the local community to continue to function, but benefit and enrich the whole community, as the community gains from cultural exchange and from sharing the knowledge and experience of priests from other parts of the world. They educate new communities about life in their country, and they open up avenues for local parishes to support communities in need. What was most surprising about the changes was that, as far as the SNP was aware, there had been no problems with visas for the Catholic Church or any of the other faith organisations that made use of the tier 5 route. The new requirement introduced in 2019 for anyone preaching to use tier 2 minister of religion visas has instead more than doubled the costs incurred by parishes arranging supply cover. For some parishes that is unsustainable, compromising people’s opportunity to practise their faith.

Furthermore, they point out that seminaries conducting formation in English are not necessarily recognised by the Home Office as meeting the English requirement under the tier 2 route, meaning that many priests educated to postgraduate level in English are nevertheless required to take a language test, with the extra logistical and cost implications. The new arrangements more than double the costs, making supply cover essentially unaffordable. I have heard directly from religious leaders in my constituency that that is the impact of those arrangements. Unless reforms are made, the situation will be worsened by the end of free movement, as I said in response to the intervention from the right hon. Member for Scarborough and Whitby (Robert Goodwill). I simply ask the Government to engage with faith communities about the challenges that this is causing them to face, and to see if we might be able to come to a solution that makes these sorts of arrangements continue to function in the years ahead.

[Brendan O'Hara]

As my hon. Friend said, the tier 5 religious visas were operating perfectly smoothly for the many Churches and religious organisations that relied on them until these unexpected changes were made. Catholic parishes throughout the UK—including my own in the Archdiocese of Glasgow—regularly used these visas as routes for priests to come to the UK on supply placements.

The changes that came into force in January are already causing something of a headache for a whole host of religious organisations that require clergy to visit to cover for periods of illness, holiday, religious retreat, or when priests or other clergy are away on pilgrimage. This is a time of a crisis in vocation, clergy are becoming increasingly elderly, and more and more parishes and dioceses are turning to priests from outside the UK to cover such absences, sicknesses and holidays, so it beggars belief that the measure would have been introduced in this way.

It is important that the Minister realises that the tasks of a parish do not stop when the existing or resident priest falls ill, or goes on a well-earned holiday or retreat. As pointed out by my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East, the church is more than just a place of worship, it is also a community hub providing both spiritual and practical support to the sick, elderly and vulnerable, as demonstrated by the great work of a number of organisations including the Society of Saint Vincent de Paul. The Bishops’ Conference of Scotland has been clear in saying that much of the positive work done in and around Catholic parishes which engenders that sense of community is being seriously undermined and compromised by these changes. The Home Office has to understand and recognise the benefits of allowing priests from other parts of the world to come in on a tier 5 visa. They enrich the whole community. It is a cultural exchange, it is a share of knowledge, a share of experience by priests and clergy from other parts of the world.

It is not just the Catholic church. Indeed, the Church of Scotland is on record as saying that it opposes the measure. Many of us are confused as to why these changes were deemed necessary. What grave issue has arisen that needed to be addressed in such a draconian fashion? The Scottish bishops said that for years they had sponsored priests through the tier 5 process, and they are completely unaware of any abuse of the system whatever. For years, priests came here, they worked and preached in Scotland and across the UK, and then returned home. Indeed, 25 years ago this summer at St Helen’s church in Shawlands in Glasgow, Father Stephens from Malawi was the celebrant who married me and my wife, rather successfully I am happy to report. But the question remains: why did this have to happen? What was the motivation behind it? Can the Government not see the harm they are doing to our religious communities, and can they not act to stop it?

Finally, exactly a year ago in a debate on that in Westminster Hall, my hon. Friend the Member for Glasgow North (Patrick Grady) invited UK Ministers to meet the Bishops’ Conference of Scotland. Did Ministers take up that invitation? Did that meeting ever take place and, if it did, what was discussed and what outcomes were agreed? If it never took place, why not?

Windrush Compensation Scheme

Brendan O'Hara Excerpts

Tuesday 9th April 2019 Commons Chamber

[Caroline Nokes]

The hon. Lady makes an important point about the publicity surrounding events and the importance of doing it in a meaningful way. I am conscious that we have a schedule of events planned, but I am never happy when I think that information is provided at too short notice. I will undertake to ensure that that does not happen and that not only Members but affected members of the community are given adequate information about when events will take place.

We designed the application form and scheme in consultation with members of the Windrush generation, and we sought to make the form as straightforward as possible. Of course, there are sections that will be relevant to some claimants and not to others. I certainly hope it is clear that people are not expected to fill in every single section of the form. Where they are asked for evidence, that is if evidence is available. The Home Office is determined to work alongside individuals to ensure that where evidence is not available, people are assisted either to find it or directed towards the tariff route, where evidence will not be required to the same extent. It is important that we get the balance right, but the hon. Lady has made some important points that we will certainly take on board.

[Brendan O'Hara (Argyll and Bute) (SNP)]

I have been in correspondence with the Home Office for almost a year about the case of my constituent, Bobbi Vetter, who came to the UK as a baby 54 years ago and has lived nowhere else but the UK. Last year, she was offered a job in Oban but could not prove residency for a six-year period while she was here—a time when she was having and raising her children. Bobbi was unable to take that job and has been forced to live on universal credit. What compensation will Bobbi be entitled to? Will the Minister resolve to look at Bobbi’s case urgently to right this terrible injustice?

[Caroline Nokes]

I am sure that the hon. Gentleman would not expect me to stand at the Dispatch Box and indicate a level of compensation for his constituent, but I will very happily take away the details of the case, if he will provide them, and look into it.

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

Brendan O'Hara Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons & Ways and Means resolution: House of Commons
Monday 28th January 2019 Commons Chamber

[Brendan O'Hara (Argyll and Bute) (SNP)]

My hon. Friend is making an excellent speech. Does he recognise the particular problems faced in the western highlands of Scotland, where there is a depopulation crisis? Urgent action is required, yet the Government have turned a blind eye and a deaf ear to the needs of rural Scotland time and again. Even after an offer by Argyll and Bute Council to host a pilot scheme to test a regional immigration policy, they absolutely refused to do that. Will he join me in calling for the immediate devolution of immigration policy to the Scottish Parliament, because a “one size fits all” policy cannot and will not work for the whole UK?

[Stuart C. McDonald]

I am happy to support my hon. Friend in that call. Like my hon. Friend the Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry), he makes an important argument about rural Scotland.

If the Government were to succeed in reducing net migration to the tens of thousands, it is projected that Scotland’s working age population would decline by 4.5%, or 150,000, between 2016 and 2041. It is time that the Home Office engaged with these concerns. So far it has veered between platitudes about the useless Scottish shortage occupation list and total disinterest in the issue. I ask the Home Office: please, look at the analysis that has been done and proposals about how a differentiated or devolved system can work—not just from the Scottish Government but from academics such as Christina Boswell, Sarah Kyambi and Eve Hepburn. Look at what think-tanks such as the Institute for Public Policy Research are saying; see what works internationally in Canada, Australia and other countries.

Whatever our differing views on Scotland’s constitutional future, migration and demographics must be recognised as huge issues for the future of Scotland. The total lack of interest from the Home Office is just shocking. If it fails to start engaging and addressing the issue, there is no better illustration of why we need decisions on immigration to be in Scotland’s hands.

For all those reasons, the Bill must be refused a Second Reading. For such a short Bill, it risks remarkable damage. We will all be poorer if it passes. We say no to terminating our mutual rights to free movement and no to giving the Government a blank cheque to implement a disastrous alternative policy. We say no to extending the hostile environment and anti-family policies, and no to damaging Scotland’s future. For all those reasons, and all the reasons set out in the reasoned amendments tabled by the Greens and the Liberal Democrats, as well as that tabled by the SNP, the Bill must be refused a Second Reading.

--- Later in debate ---

[Sir John Hayes]

I do agree, and part of that is about scale. Part of that is about the absorption of new peoples, about building the kind of common sense of identity that I called for, and about ensuring that what we share is more important than that which divides us, as I also said a few moments ago. If we are to build that kind of social cohesion and that civil harmony, it is important to recognise, as my hon. Friend says, the consequences of immigration, where they are both positive and less so. Many communities across Britain felt at the time of the referendum—using that as an expression—that some of the changes were not positive. That is partly because free movement tended to bring people to particular communities in the east of England, including in my county of Lincolnshire, and other similar places, so that the number of people who came was not spread out evenly. People were often concentrated in small towns that changed very radically very rapidly, and it is the extent of that change that causes some of the concerns that I have attempted to amplify.

[Brendan O’Hara]

Does the right hon. Gentleman agree that those of us in areas that have had a positive experience of immigration should continue to have the right to have that experience? Will he therefore back our call to devolve immigration to the Scottish Government so that we can continue to have that positive experience of immigration?

[Sir John Hayes]

I take the view that this is our sovereign Parliament, that Home Office policy should be made here, and that the Government govern for the whole of our kingdom. That may seem a bit unconventional to Scottish nationalist eyes, but it is certainly my view. As I recall, it was also the view of the majority of Scots when their opinion was tested in a referendum, so let us move on from the idea of devolving this policy.

As I said, the figures speak for themselves. There have been unprecedented levels of mass net migration for a decade. Of course, the fact that most of those migrants came from outside the EU goes back to the point made quite persuasively by the shadow Home Secretary, which is that this debate must be contextualised. We need to talk about migration as a whole, rather than simply immigration from the EU. Nevertheless, in the views of many, free movement became a totem for the kind of lack of control of our destiny and our borders that the EU embodies.

Future Immigration

Brendan O'Hara Excerpts

Wednesday 19th December 2018 Commons Chamber

[Sajid Javid]

I believe the system will work for all parts of the UK. I do not recognise the point that it will do damage to the Welsh economy, which would be the wrong conclusion to draw from the system. I had a discussion this morning with the First Minister of Wales in which we went through the White Paper in a bit more detail. Obviously the First Minister needs to look at it more carefully, and I am happy to sit down with him and with hon. Members who represent Wales to discuss it further.

[Brendan O'Hara (Argyll and Bute) (SNP)]

Will the Home Secretary confirm that, in preparing this White Paper, careful cognisance was given to the needs of every part of the United Kingdom? That being so, can he explain exactly what part the rural west of Scotland—a fragile, low-wage economy in an area that desperately needs more people—played in shaping his thinking?

[Sajid Javid]

The hon. Gentleman makes an important point about making sure the White Paper works for all parts of the UK, which is why in preparing it my right hon. Friend the Immigration Minister held roundtables with business, for example, and had other forms of engagement in every part of the UK, including Scotland. I have had extensive engagement with Scottish Conservative Members, who have taken a deep interest in this. [Interruption.] I am happy to listen to the hon. Gentleman and others, and together we can make sure that, as we finalise them, the plans set out in the White Paper work for all parts of the UK.

European Union (Withdrawal) Act

Brendan O'Hara Excerpts

Wednesday 5th December 2018 Commons Chamber

[John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)]

It is an honour to follow the hon. Member for Caerphilly (Wayne David).

Since the EU referendum result in 2016, we have all been grappling with the result and what it means for our constituents and our country, and with how we should best respond in the interests of our country. I believe the public, rightly, are tired of Brexit. For many, it has become an issue that is far too abstract, legalistic and confusing. Frankly, they want us to get on with it, but our constituents are relying on us to get it right. This debate and vote may be one of the most important that right hon. and hon. Members in this place will have to make a decision on. Probably it is one of the most important votes, if not the most important vote, that we will cast in our parliamentary careers.

Almost everyone I have spoken to, whether or not they support this deal, has a huge amount of respect for the Prime Minister and admiration for the job that she is doing. Negotiating a Brexit deal with the European Union was an almost impossible job. I have never doubted the Prime Minister’s desire to achieve the best for our country, and she has poured her heart and soul into every aspect of these negotiations. My admiration for our Prime Minister is making this decision for me all the more difficult. It goes without saying that I am loyal to this Government and to this Prime Minister. Our country is undoubtedly better served by this Government than by any alternative. After 10 years in the Scottish Parliament and 18 months here, I understand the significance of even contemplating voting against my Government and colleagues. However, my job here is also to consider the national interests and those of my constituents. That is why I am listening carefully to contributions from all parts of the House during the course of this debate, and particularly those of Ministers in reaction to some of the concerns that colleagues, especially those on the Conservative Benches, have raised.

Part of my decision-making process has been considering what happens if Parliament rejects this agreement. We have been told it is this deal, no deal or Brexit could be stopped. The default position for this process is clear: we leave the EU at 11 pm on 29 March next year with no deal. That is due to both the EU treaty and the European Union (Withdrawal) Act which, when it was passed earlier this year, was amended to include the date and time of exit. In my view, it is regrettable that there has not been greater clarity from the Government about what will happen in the event, as seems increasingly likely, that this place does not give its support to the withdrawal agreement. We are being asked to support this agreement without any proper understanding of the alternatives. We are in effect balancing risks as part of our decision-making process—the risks associated with this agreement as opposed to the risks of the unknown.

Turning to the withdrawal agreement itself, the fishing industry along the Berwickshire coast in my constituency has been decimated in recent years. I know that many of my local fishermen and women are looking forward to a life outside the common fisheries policy. While I have been reassured by the words from the Prime Minister, I am less comforted by the views expressed by other European leaders, notwithstanding the fact that fishing could still be sacrificed as part of the trade deal negotiations. I am happy to accept the words of our Prime Minister and her commitment to Scotland’s fisheries, but my fear is that the precise arrangements will be decided at some point in the future. No Government can bind their successors, so no promise now will necessarily have any effect in the future.

As a Unionist, I also have serious concerns about the provisions for Northern Ireland, given that there will be at least a risk of Northern Ireland being treated substantially differently from the rest of the United Kingdom. That would certainly be contrary to the articles of Union, as I understand them. The main nationalist parties in Northern Ireland have signed up to the agreement. However, both the Ulster Unionist party and the Democratic Unionist party have said that they are completely opposed to it. That causes me a serious problem. Given the troubled history in Ireland, any constitutional change needs to have the support of both communities in Northern Ireland. Some say that the Unionists in Northern Ireland need to take a pragmatic approach and that they need to compromise. I would suggest that that fundamentally misunderstands Unionism in Northern Ireland. I have every sympathy with those in this place who represent Unionism in Northern Ireland, who have expressed concerns about the potential impact of the agreement on the constitutional status of Northern Ireland within the United Kingdom.

My fundamental concern is that so much of the EU withdrawal agreement is an agreement to agree something further down the line. The can is being kicked further down the road. As someone who studied law at Glasgow University and trained and worked at Freshfields along the road from here, one of my lasting memories from law school and from those teaching me how to draft legal documents is the danger of drafting something that could be construed as an agreement to agree. Why is that a problem? My hon. Friend the Member for East Surrey (Mr Gyimah) touched on some of the political aspects, but the consequence is that agreements to agree lack sufficient certainty to constitute a legally enforceable commitment.

There have been many reassuring words about the high standard imposed by the “best endeavours” commitment in the withdrawal agreement, but the reality is that it is meaningless if the obligation itself lacks certainty. The withdrawal agreement was supposed to be a bridge to a permanent relationship with the EU, but the danger is that it will become the norm. We are putting off so many of the outstanding decisions for a later date.

I have wrestled with this for many hours and have lost much sleep over the past few weeks. I have spoken to many businesses and residents in my constituency. I am here to represent their views as their Member of Parliament. I am trying to reconcile my deep misgivings about the agreement with my loyalty to the Prime Minister and the Government. It is not easy. In fact, it is proving to be probably the hardest decision of my political life. I have until Tuesday to decide what I am going to do, and I am going to carefully judge what—[Interruption.] Perhaps SNP Members could show me some respect rather than mocking my decision-making process—I am wrestling with a very difficult decision on behalf of my constituents and my country.

[Brendan O'Hara (Argyll and Bute) (SNP)]

We have heard so much from the hon. Gentleman and his colleagues about threatening to resign if Northern Ireland is treated any differently from anywhere else in the United Kingdom. His own Attorney General’s legal advice said it will be treated as a third country, but and he is still wrestling with it. It is patently clear. Have the courage of your convictions and vote this down. It is bad for Scotland, and it will be bad for the rest of the UK.

[John Lamont]

I have not threated to resign from anything. I have just reinforced the point that I am here to represent my constituents, many of whom have concerns about the withdrawal agreement. I am here, as somebody sitting on the Government Benches, to express such concerns and misgivings, and to try as honestly as I possibly can to articulate to the House, and hopefully to my constituents, the thought process I am going through. That will take as long as I need. I will certainly not be intimidated or bullied by SNP Members to make that decision any more quickly. I will take my time, and on Tuesday I will cast my vote for what I think is in the national interest and in the interests of my constituents.

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[Brendan O'Hara (Argyll and Bute) (SNP)]

It is an honour and, indeed, a challenge to follow the excellent contribution of the hon. Member for Gedling (Vernon Coaker).

It will surprise no one when I say that I, along with every one of my SNP colleagues, will vote against the Prime Minister’s withdrawal agreement when the House divides on Tuesday. I will vote against it because it is a very bad deal for Scotland, but also because it is a potentially catastrophic deal for the people of my constituency. What we in Argyll and Bute are being asked to do by the Prime Minister is to support a deal that by every analysis will make us poorer and that will put us at a competitive disadvantage to our near neighbours in Northern Ireland, just a few miles across the water from the Mull of Kintyre. It would be a dereliction of duty if I were to back the deal, because I would not be acting in the best interests of my constituents, my country or, indeed, the rest of the United Kingdom if I were to support a deal that I believe would be harmful to the social, economic and cultural wellbeing of the people of Argyll and Bute.

For the past two years, the Prime Minister has told us repeatedly that no deal is better than a bad deal. We were assured that there were no circumstances in which she would sign up to a bad deal, yet what we are being asked to vote for next week is exactly that: a bad deal—a very bad deal. Any deal that puts Scotland at a competitive disadvantage can only be a bad deal. Any deal that prevents us from attracting people from right across Europe to Argyll and Bute to live, work, invest or raise a family in order to reverse a decades-long stream of depopulation is a very bad deal. I commend and 100% endorse the remarks made last night by my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) when he said to the EU nationals who have chosen to make Scotland their home, “You are welcome.” We thank them for choosing to live in Scotland and welcome the contribution they make to our lives and our economy. Their presence enriches our culture.

That point was forcibly made to me last night by a constituent, Mr Graeme Lyon, who wants to know how the Prime Minister can justify causing such economic and social harm by ending the freedom of movement that has enriched everyone in this country. How could I possibly support an agreement that will have such disastrous consequences for our inshore fisheries fleet and our world-famous shellfish and fin-fish industries, that fails to protect our fragile west coast hill-farming sector, and that denies our vital tourism industry access to the continent-wide pool of labour it so desperately needs? I cannot and will not support the deal.

Of course, none of that should come as a surprise to the Prime Minister, because she came to Scotland last week to meet the people and to listen to their concerns—aye, right, so she did. Meeting and listening to the people of Scotland does not mean arriving at Glasgow airport at 3 o’clock and driving 12 minutes to a factory in Bridge of Weir, where a hand-picked group of journalists were waiting while the rest stood outside in the rain. It is not about firing out that old cliché about “our precious Union” before jumping back in the car for the 12-minute drive back to Glasgow airport to be in the back in the air and out the country by 6 o’clock that evening. That is nobody’s definition of meeting or listening to the people. In fact, it is an insult to the people of Scotland.

If the Prime Minister really wanted to hear the voice of Scotland, she should have a listen to the CNN report by Erin McLaughlin from Glasgow on the same day that the PM flew into Bridge of Weir. The report showed that the people of Scotland were insulted by the contempt shown by the Prime Minister and this sham of a PR stunt. It also showed that the people of Scotland do not want to be dragged out of the European Union against their will. Indeed, one young Glaswegian gentleman was so incensed that he, inadvertently perhaps, used a form of industrial language rarely heard on the streets of the “dear green place”.

The CNN report also showed that the people of Glasgow and of Scotland are moving from no to yes on the question of Scottish independence. This is not the future Scotland was promised back in 2014 when we were told that only by voting no in the independence referendum would we be able to retain our EU citizenship. No one was told when they voted no back in 2014 that not only would they be giving the green light to Scotland being dragged out of the European Union, but that Scotland would become poorer and that we would be put quite deliberately at a competitive disadvantage compared with other parts of the UK.

Another of the hollow promises made by those advocating a no vote in 2014 was that the Scottish Parliament would be the world’s most powerfully devolved Parliament. However, from that day to this, the Scottish Parliament has been ignored, sidelined and disregarded. Tonight, that Parliament rejected the Prime Minister’s withdrawal deal by 92 to 29. I wonder what cognisance this Government will take of the opinion of the world’s most powerfully devolved Parliament. I suspect we already know the answer to that, but I sincerely urge the Government to take on board what the Scottish Parliament has said, because it is absolutely right. An escape route is being offered, and I urge the Government to take it. Despite the Prime Minister’s bluster, this is not a take it or leave it situation.

This whole Brexit process has been an embarrassing fiasco. Over the past two years, we have heard about a hard Brexit, a soft Brexit, and a blind Brexit. Well, after yesterday we are now in the realms of a burst-ba’ Brexit. Regardless of how the fiasco is resolved, Scotland needs the full powers of an independent Parliament not just to stop and reverse this Brexit chaos, but to ensure that Scotland will never again be reduced to a passive bystander while things are done to it and for it by Governments and Prime Ministers whom the people of Scotland have overwhelmingly and consistently rejected.

Data Protection Bill [ Lords ] (Second sitting)

Brendan O'Hara Excerpts

Tuesday 13th March 2018 Public Bill Committees

This debate will grow over the years to come. We hope that the Government can take the opportunity now to incorporate some fairly common-sense safeguards into the Bill, because none of us on this Committee wants old injustices to be hard-coded into new injustices. That is the risk that the Bill is running.

[Brendan O'Hara (Argyll and Bute) (SNP)]

I will speak to amendments 130, 133 and 135, which appear in my name and that of my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East. Our amendments seek to provide protection for individuals who are subject to purely automated decision making, specifically where we believe that it could have an adverse impact on their fundamental rights. The amendments would require that where human rights are or possibly could be impacted by automated decisions, ultimately there are always human decision makers. The amendments would instil that vital protection of human rights with regard to the general processing of personal data.

The amendments seek to clarify the meaning of a decision that is based solely on automated processing, which is a decision that lacks meaningful human input. That reflects the intent of the GDPR, and provides clarification that purely administrative human approval of an automated decision does not make that decision a human one. It is simply not enough for human beings to process the information in a purely administrative fashion, but to have absolutely no oversight or accountability for the decision that they process. We strongly believe that automated decision making without human intervention should be subject to strict limitations to ensure fairness, transparency and accountability, and to safeguard against discrimination. As it stands, there are insufficient safeguards in the Bill.

As the right hon. Member for Birmingham, Hodge Hill said, we are not talking about every automated decision. We are not talking about a tech company or an online retailer that suggests alternatives that someone may like based on the last book they bought or the last song they downloaded. It is about decisions that can be made without human oversight that will or may well have long-term, serious consequences on an individual’s health, financial status, employment or legal status. All too often, I fear that automated decisions involve an opaque, unaccountable process that uses algorithms that are neither as benign nor as objective as we had hoped they would be, or indeed, as we thought they were when we first encountered them.

We are particularly concerned about elements of the Bill that allow law enforcement agencies to make purely automated decisions. That is fraught with danger and at odds with the Data Protection Act 1998, as well as article 22 of the GDPR, which states:

“The data subject shall have the right not to be subject to a decision based solely on automated processing”.

Although there are provisions in the GDPR for EU member states to opt out of that, the opt-out does not apply if the data subject’s rights, freedoms or legitimate interests are undermined.

I urge the Government to look again at the parts of the Bill about automated decision making, to ensure that when it is carried out, a human being will have to decide whether it is reasonable and appropriate to continue on that course. That human intervention will provide transparency and capability, and it will ensure that the state does not infringe on an individual’s freedoms—those fundamental rights of liberty and privacy—which are often subjective. Because they are subjective, they are beyond the scope of an algorithm.

There are serious human rights, accountability and transparency issues around fully automated decision making as the Bill stands. Amendment 130 says that any human involvement has to be “meaningful”. We define meaningful human oversight as being significant, of consequence and purposeful. As I have said, that is far beyond the scope of an algorithm. If an individual’s rights are to be scrutinised and possibly fundamentally affected, it is an issue of basic fairness that the decision is made, or at least overseen, by a sentient being. I hope the Government accept the amendments in the faith in which they were tabled.

[Margot James]

The amendments relate to automated decision making under the GDPR and the Bill. It is a broad category, which includes everything from trivial things such as music playlists, as mentioned by the hon. Member for Argyll and Bute, and quotes for home insurance, to the potentially more serious issues outlined by the right hon. Member for Birmingham, Hodge Hill of recruitment, healthcare and policing cases where existing prejudices could be reinforced. We are establishing a centre, the office for artificial intelligence and data ethics, and are mindful of these important issues. We certainly do not dismiss them whatsoever.

Article 22 of the GDPR provides a right not to be subject to a decision based solely on automatic processing of data that results in legal or similarly significant effects on the data subject. As is set out in article 22(2)(b), that right does not apply if the decision is authorised by law, so long as the data subject’s rights, freedoms and legitimate interests are safeguarded.

The right hon. Member for Birmingham, Hodge Hill, mentioned those safeguards, but I attribute far greater meaning to them than he implied in his speech. The safeguards embed transparency, accountability and a right to request that the decision be retaken, and for the data subject to be notified should a decision be made solely through artificial intelligence.

--- Later in debate ---

[The Chair]

Does the hon. Member for Argyll and Bute wish to press amendment 130 to a Division?

[Brendan O'Hara]

I would like to press the amendment to a vote, or should I do that on Report?

[The Chair]

The hon. Gentleman can press the amendment to a vote now. If it is carried, it will be part of the Bill. If it is defeated, it will not be, and it may then be moved on Report, subject to the Speaker’s discretion. If the hon. Gentleman does not press the amendment now, it may be that there is more of a likelihood of its being picked on Report, but that is a matter for the Speaker.

[Brendan O'Hara]

In that case, I will not press the amendment now.

[Margot James]

I beg to move Government amendment 10, in clause 14, page 8, line 4, leave out “21 days” and insert “1 month”.

Clause 14(4)(b) provides that where a controller notifies a data subject under Clause 14(4)(a) that the controller has taken a “qualifying significant decision” in relation to the data subject based solely on automated processing, the data subject has 21 days to request the controller to reconsider or take a new decision not based solely on automated processing. This amendment extends that period to one month.

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[Liam Byrne]

I beg to move amendment 156, in schedule 2, page 136, line 30, leave out paragraph 4.

This amendment would remove immigration from the exemptions from the GDPR.

We are trying to provide some careful and considered constraints on the exemptions that the Government are asking for, in particular the exemptions that Ministers seek for the purposes of immigration control.

The Bill has been drafted essentially to enable the Home Office to do two things: win cases and create a hostile environment for those who are here illegally, where it has no capacity to trace and deport individuals. In conducting its work, the Home Office draws on a wide range of private providers, from G4S to Cifas. They have a mixed record, including on data protection. The carve-out that the Government seek for immigration purposes has caused widespread concern. It has drawn concern from the other place, the Information Commissioner and the Joint Committee on Human Rights.

The Minister will try to assure us by saying there are safeguards wrapped around the exemption and that there are limits on the way it can be used, but those limits are drawn so vaguely and broadly that they are not safeguards at all. They have been drafted to apply where matters are likely to prejudice immigration control. Who gets to judge the likelihood of prejudicing immigration control is not terrifically clear. In my Home Office days, we used to call that carte blanche.

Through the powers and exemptions in the Bill, the Home Office seeks to collect data for one purpose and then use it without informed consent. Where the rubber hits the road is that, crucially, the effect will be to ensure that subject access requests are basically put beyond the scope of someone seeking information that they might be able to use either in representations that we all might make to Ministers or, more importantly, in an immigration tribunal.

I want to sound a warning note to the Minister, as I hinted on Second Reading. I was brought into the Home Office as a Minister in 2006 and, after a glorious fortnight as Minister for Police and Counter-terrorism, I was moved by my boss John Reid to become Immigration Minister, where I was asked to conduct the biggest shake-up of our immigration system for 40 years.

I created the UK Border Agency; I took UK visas out of the Foreign Office; I took Customs out of the Treasury. We created a Border Agency that could run a biometric visa programme abroad, checking fingerprints against police national computers before anyone got on a train, plane or boat to our country. We introduced much stronger controls at the border, increasing those nice new blue signs, creating smart uniforms for immigration officials, and we increased immigration policing by around £100 million a year

I said earlier that to err is human but it takes a computer really to foul things up. That is a lesson that I learned with some force during my time at the Home Office. The dedicated, fantastic officials in the Home Office and the extraordinary officers who work in what was the UK Border Agency—it has since been revised a couple of times—do an amazing job. They are dramatically underfunded by the Treasury. They have been underfunded by the Treasury under this Government and, in my view, we did not get enough out of the Treasury in my day.

However, they are human and make mistakes. That is why we have such a complicated immigration tribunal system, where people can take their complaints to a first tier tribunal but very often need to seek a judicial review down the line. The challenge is that, if the Home Office wants to create a process and an administration for making the right decision, which can be defended in a tribunal and in a judicial review case, that process must be robust. When we streamlined the immigration tribunal system, we realised that we had to change, improve and strengthen the way that we took decisions in the Home Office because too many were made in a way that was not JR-proof. We were losing JRs and therefore denying justice to those who brought a legitimate claim against the Crown.

There were occasions when I lost cases because of information that was disclosed to the applicant through a subject access review. SARs are one of the most powerful instruments by which anybody in this country, whether a citizen or someone applying to become a citizen, or applying for a legal right to remain, can acquire information that is crucial to the delivery of justice. Many of us are incredibly sympathetic to the job that the Home Office does. Many of us will want a tougher regime in policing immigration, in particular illegal immigration, but I suspect every member of the Committee is also interested in the good conduct of justice and administrative justice. As someone who served in the Home Office for two years, I had to take some very difficult decisions, including to release subject access request information that I absolutely did not want to go into the public domain. Sometimes it was right to release that information because it helped ensure that justice was done in the courts of this land.

The Minister has some very strong safeguards in the Bill. There are strong safeguards that create exemptions for her where the interest is in crime prevention, such as, for example, illegal immigration. However, the power that the provision seeks, at which we take aim in our amendments, is a step too far and risks the most terrible injustices. It risks the courts being fouled up and our being challenged in all sorts of places, including the European Court of Human Rights in the years to come. It is an unwise provision. If I were a Home Office official, I would have tried it on—I would have tried to get it through my Minister and through the Houses of Parliament, but it is unwise and a step too far. I hope the Minister will accept the amendment and delete the provisions.

[Brendan O'Hara]

I will speak in favour of amendment 156. On Second Reading, I said that I would raise this matter again in Committee and I make no apologies for doing so. We regard this new exemption as extremely concerning. It permits the Government to collect and hold data for the purposes of what they describe as “effective immigration”.

It also concerns me that nowhere in the Bill does there seem to be a legal definition of effective immigration control. I am worried that “effective immigration control” is highly subjective and highly politicised. It exposes individuals, weakens their rights and makes them vulnerable to whatever change in the political tide happens to come along next. This broad-ranging exemption is fundamentally unfair. It is open to abuse and runs contrary to safeguarding basic human rights. I believe that the UK’s proposed immigration exemption goes much further than the scope of restrictions afforded to member states under GDPR, with all the consequences of that, which we discussed in such great detail this morning around adequacy decisions.

--- Later in debate ---

[Ian Murray (Edinburgh South) (Lab)]

The hon. Gentleman makes a powerful case against this particular exemption. He will know as well as me as a constituency Member of Parliament that one of the first things checked when someone comes to seek our advice is whether the Home Office has the correct information on an individual. Nine times out of 10, because of sheer workload, the Home Office just has it wrong. Then the visas and so on can be processed. Am I right in saying that, under this exemption, we would be unable to do that?

[Brendan O'Hara]

The hon. Gentleman is absolutely correct; I was just getting on to the point about the information held by the Home Office. If it cannot be checked and if it is wrong at source, it is wrong at the end of the process. As far as I can see, there are no safeguards against that. He is absolutely correct that one early error in data collection and processing becomes an irrefutable and indisputable fact by the time it reaches the Home Office. The Home Office could then base its case against an individual on that wrong information.

The hon. Gentleman is right—as constituency MPs, there is not one of us, I am sure, who is not painfully aware of wrong information being held not just by the Home Office, but by a whole range of Departments. That makes the exemption fundamentally unfair. This is an issue of basic fairness and there is little wonder it has been so loudly and roundly condemned by civil liberties groups and many in the legal profession. If we go ahead with the schedule as it stands, it fundamentally changes how we can operate and how we can help people who require our assistance.

At the moment, we have subject access requests. As matters stand, the Home Office and the subject or their legal representative have a right to access the same information, on which legal claims and challenges are based. Surely, if both sides do not have access to the same information, the fairness of any legal proceedings is inevitably compromised. Subject access requests are often the only route through which a legal professional can make representations on very complicated issues on behalf of their client. Indeed, for clients who have been victims of domestic abuse and are fleeing an abusive partner, sometimes a subject access request is all that stands between them and a successful application to remain.

This exemption will reduce legal representatives’ ability to best represent their clients and it removes a fundamental tool for holding the Home Office to account when it either gets things wrong or chooses to ignore or misrepresent the facts. The exemption is fundamentally unfair and as unnecessary as it is disproportionate. I urge the Government to reconsider.

[Darren Jones]

I support the amendment tabled by my right hon. and hon. Friends, because there are some harsh realities about this exemption for effective immigration control, including the harsh reality that such an exemption right does not exist under the GDPR. Indeed, it is a new exemption compared with the law that exists today under the Data Protection Act 1998.

This broad, undefined exemption really must be restricted. I declare an interest. My wife is Australian and is here on a spousal visa. I therefore assume that, as a British citizen, I too could be subject to my rights being exempted for the effective control of immigration in order to understand what my wife is up to. I should declare for the record that her staying here in the UK is perfectly legitimate. This is a wide-ranging exemption that could apply to EU citizens, non-EU citizens and, as I say, British citizens who are connected with those who are subject to immigration controls.

This is not just an issue for the Home Office; there is data across various Departments that could be of use to the Home Office for the effective control of immigration. Indeed, we have been waiting for quite some time for the Government to publish the biometric strategy, setting out how they intend to use lots of biometric data across Government Departments. We have been waiting for a couple of years to see how the Government intend to do that.

My understanding is that if all the photographs held on our passports and driving licences were collated, in essence the Government would have the power to have a virtual ID card for the bulk of the adult population in this country. How on earth would that information be used for the effective control of immigration, which would potentially be applied to so many people here in the UK?

This exemption creates a derogation for many rights: the right to information, the right to access, the right to explanation, the right to erasure, the right to restriction of processing, the right to data portability, the right to object, and all the principles set out in article 5 of the GDPR. This is an enormous derogation from rights that our colleagues in Europe think are important. Again, this relates to the risk of failing to seek adequacy in our negotiations with the EU.

I seek not only to support the amendment but to ask the Minister to clarify something. If the Government do not support the amendment, how does the exemption fit within the language of article 23 of the GDPR, which states that it can only exist

“when such a restriction respects the essence of the fundamental rights”—

which we have already noticed today are being repealed by this Government—

“and freedoms and is a necessary and proportionate measure in a democratic society”?

My assertion is that this exemption goes too far and, therefore, that the amendment tabled by my right hon. and hon. Friends is perfectly sensible. I look forward to it receiving Government support.

EU Nationals

Brendan O'Hara Excerpts

Wednesday 29th November 2017 Commons Chamber

[Brendan O'Hara (Argyll and Bute) (SNP)]

I agree with my hon. Friend the Member for North East Fife (Stephen Gethins) that it is an absolute disgrace that, 18 months after the referendum, our highly valued EU nationals still do not know with any certainty what lies in store for them. Those well respected, hard-working, tax-paying members of our society have been treated appallingly by this Government who, despite numerous opportunities to do so, have ignored all opportunities to make a unilateral guarantee to our EU nationals that their current status will remain unaltered when the UK leaves the European Union. I repeat the appeal today: regardless of what others do, please will the Government do the right thing and guarantee to those EU citizens, who are living, working and contributing economically and socially to the wellbeing of this country, that their status will not change with Brexit and that they are welcome here?

Like other Members who have spoken, my mailbox has been full with letters from worried people, and my surgeries have a steady stream of people looking for some certainty. Let me give the Minister one example—that of Katarzyna Zalewska, a Polish EU citizen who has lived in my home town of Helensburgh for the past 12 years with her young son.

Katarzyna is a highly qualified, respected and experienced multilingual social worker, working in the area of domestic violence reduction among communities in which English is not the first language. She recently applied for UK citizenship, so keen is she to stay in Scotland after Brexit. On 9 October, she received a letter from the Home Office informing her that her application had been refused on the minor technicality that she had not provided her blue residence card. UK Visas and Immigration could not be satisfied that she was a permanent resident on the date of her application for naturalisation. It said to her:

“The fact that that you have been refused is not because you do not qualify for Permanent Residence, it is because you have not provided a Permanent Residence Blue Card.”

That is patently absurd. Her blue card may have expired, it may have been lost, but she has provided references from her employers and a host of other documentary evidence. The irony is that, very shortly afterwards, we all received the updated Home Office guidelines on settled status which said that EU citizens

“will not have their applications refused on minor technicalities.”

I ask the Minister to look again at Katarzyna’s case.

Looking at the wider picture, I have to ask why we are putting people through this emotional wringer. Why are we deliberately making it so difficult for people who simply want to get on with their lives?

I wholeheartedly agree with my hon. Friend the Member for North East Fife that Scotland needs a bespoke immigration policy. If the Government here cannot provide what Scotland needs, then they must devolve immigration policy to the Scottish Government. We want a policy of thanking and appreciating those from abroad who have chosen to make their home in Scotland.

Scotland: Demography and Devolution

Brendan O'Hara Excerpts

Thursday 9th March 2017 Westminster Hall

[Brendan O'Hara (Argyll and Bute) (SNP)]

As always, Mr McCabe, it is a pleasure to serve under your chairmanship.

I begin by commending the report of the Scottish Affairs Committee. It is a significant contribution to the debate and it is supported by numerous experts. It makes it very clear that Scotland’s population needs to grow and that Scotland requires immigration in order to make that happen.

As my hon. Friend the Member for Perth and North Perthshire (Pete Wishart) rightly said, the United Kingdom’s population is projected to increase by 15%, while it is reckoned that the population of my constituency of Argyll and Bute will fall by 8%. That situation is unsustainable and unworkable, because despite being an exceptionally beautiful part of the world, my constituency is—almost uniquely—suffering depopulation. We have an ageing and increasingly non-economically active population, and our young people are leaving to spend their economically productive years outside Argyll and Bute.

We desperately need people to come to work in our rural communities. We need EU nationals and others to be able to come to Argyll and Bute, and we welcome the overwhelmingly positive contribution they make day in and day out to Argyll and Bute and to Scotland generally. We need that to continue, so we need a system that will allow Scotland to find a bespoke immigration policy, one in which Scotland’s needs are met, rather than simply being subsumed into the needs of the rest of the United Kingdom, and—

[Ian Murray (Edinburgh South) (Lab)]

I apologise for interrupting the hon. Gentleman; he was in full flow and I perhaps should have waited. Nevertheless, I am delighted to be able to intervene now.

In this report, we have concentrated a lot on migration. I agree with the report, which says there should be a much more flexible approach to immigration, right across the country—in all parts of the UK and not just in Scotland. Indeed, there is maybe even an argument for internal Scottish-type different approaches to immigration. One of the key recommendations of the report was about the number of young people in particular who leave Scotland to live in the rest of the United Kingdom. We need to find ways of making sure that those young people not only stay but are able to contribute to the economy. That is not about migration, because I am talking about young Scots who are moving. How does he suggest that we should deal with that issue?

--- Later in debate ---

[Brendan O'Hara]

I take on board what the hon. Gentleman is saying, but I think there are two strands to it. In Argyll and Bute, we need to keep our young people and attract young people back into the constituency. That is about physical connectivity, digital connectivity and making Argyll and Bute an attractive place for young people to come back to and to not leave in the first place, but that in itself will not be enough. We have to be able to attract EU nationals and others to Argyll and Bute and make them stay. It is not an either/or situation; we should be able to keep our young folk and at the same time attract people into Argyll and Bute to live and work and to make it home.

Part of that is having a bespoke Scottish solution. If Australia, Canada and Switzerland can have immigration policies that differentiate between the different needs of the different parts of the country, surely there is no reason, other than political will, why that cannot happen here. Argyll and Bute Council’s plan for economic regeneration was predicated on it continuing to be able to attract EU nationals into the area. I am afraid to say that that plan seems to have been holed below the waterline since last June.

When I was first elected to this place almost two years ago, I came here knowing that I would fight austerity and oppose Trident renewal and that we would seek to deliver the vow in full, as was promised after the 2014 referendum. Never in my wildest dreams did I think that my colleagues and I would have to stand in this place to defend the right of the almost 200,000 EU nationals living in Scotland to remain in the country they have chosen to call home. I did not imagine a scenario where I would have to stand in this place and argue that 1,800 of my constituents—EU nationals in Argyll and Bute—should have the basic right to remain in the country in which they have chosen to settle, raise their family and contribute.

What have we become? How in the 21st century are we debating whether 1,800 of my constituents—mums, dads, husbands, wives, brothers, sisters, employers and employees—have to choose whether to stay or go? They are genuinely fearful for the future. I put it to the Minister that that is because the Government have chosen not to guarantee their future status within the United Kingdom. As my hon. Friend the Member for Dundee West (Chris Law) said, that policy, coupled with the Government’s immigration policy, is holding Scotland back.

In the past week, five families from my constituency have contacted me, all deeply concerned. Last weekend, Rita Windham-Wright, a Hungarian national living in Oban with her Scottish husband and children, informed me that because of the uncertainty, they were thinking of leaving Scotland. Celia Krezdorn from Helensburgh—she is a Swiss national married to a German, and she has brought her children up in Scotland—said she was deeply worried about what the future holds and what the lack of clarity will mean for her family. Jean Michel Voinot, a French national living in Lochgilphead with his wife and young children, asked, “Will my family be allowed to stay?”

On Wednesday, another Hungarian woman, Edit Makai, asked me whether it would be okay to take her child to meet her Hungarian grandmother in Budapest. She was worried they might have problems getting back into the country. Just yesterday, Josianne, a French national who has lived and worked in Rosneath for more than 20 years—she is a highly active member of the community —contacted me to say that she is fearful she may have to leave her home and her family post-Brexit. The Minister may well dismiss those cases, but he has to accept that those are the genuinely held fears of constituents who have approached me as their Member of Parliament asking questions that I would never have expected to have to answer.

[Mr Goodwill]

Does the hon. Gentleman think that Scottish or British people living elsewhere in Europe deserve similar assurances, or is he prepared to move ahead unilaterally to guarantee the rights of EU nationals living here without getting the same guarantees for the status of Scottish people living abroad?

[Brendan O'Hara]

I will come on to that point in just a moment, because it is a vital question, and I will answer it. As I was saying, those are the genuine concerns of real people, and I have to ask: what kind of Government know they are causing such fear and alarm, yet refuse to act on it? I raised many of those cases at Home Office questions on Monday, and I was told by the Home Secretary that it was up to me to reassure them of how valued they are. I have done that; I have written to every single EU national in my constituency telling them how valued they are, but it is not in my gift to make the problem go away. The only people who can give that cast-iron guarantee and reassurance are the Government, and sadly they have refused to do it—they have chosen not to do it.

[Steven Paterson]

My hon. Friend is making a powerful case on one of the most important points. I have many similar stories. For example, in Tyndrum—it is just next to his constituency and on the edge of my constituency—I met with the staff of the Real Food Café, most of whom are workers who have come from the European Union. They were extremely distressed about what the future held for them and what the rules were. My frustration was that I could not give them any real answers to most of the questions that came up because the Government have not given us any real answers. Does he agree that the Government need to get their skates on and give us some idea of how this is supposed to look, so that we can reassure these people about their futures?

[Brendan O'Hara]

Sadly, it is a familiar tale. People are genuinely worried about the future, and the Government have to do something. They have to say to these folk that their future is guaranteed, come what may. It is not too late for the Government to do the right thing. Indeed, I implore them to do the right thing. I have heard the Government make the argument many times that only when other countries guarantee the position of UK citizens living in the European Union will they do the same. In direct response to the Minister’s question, I do not think that is good enough. I do not think that is doing the right thing. It is playing politics with people’s lives.

Doing the right thing is saying unequivocally—regardless of what others do—to those EU citizens living, working and contributing economically and socially to the wellbeing of this country, “We guarantee your status will not change with Brexit and you are welcome here.” If the Government choose not to guarantee European nationals the right to remain, history will judge it a national disgrace. I am proud and delighted that history will show that my colleagues and I had no part in that and opposed it every step of the way. So far as we are concerned, every single EU national living in Scotland is very welcome, and we thank them all for the positive contribution they have made, making our country a better place for all of us.

Finally, in my maiden speech in May 2015, I said that the Government had to recognise that the four constituent parts of this United Kingdom had, for the first time ever, voted four different ways and that as a result there could be no more one-size-fits-all policies covering everyone and everything from Truro to Thurso. That includes immigration. Our needs are not necessarily the rest of the country’s needs. If the Government are genuine about the respect agenda, they have to respect that and guarantee that our country can grow economically, culturally and politically into something different, if it chooses so to do, and that is with our EU nationals. I urge the Government to act accordingly and change their policy immediately.

Oral Answers to Questions

Brendan O'Hara Excerpts

Monday 6th March 2017 Commons Chamber

[Martyn Day (Linlithgow and East Falkirk) (SNP)]

6. If she will make it her policy for non-UK EU citizens resident in the UK to retain full residency rights after the UK has left the EU.

[Brendan O’Hara (Argyll and Bute) (SNP)]

10. If she will make it her policy for non-UK EU citizens resident in the UK to retain full residency rights after the UK has left the EU.

[The Secretary of State for the Home Department (Amber Rudd)]

The Prime Minister has made it clear that one of her 12 negotiating priorities is to secure the status of EU nationals already living in the UK as soon as possible, once formal negotiations have begun. She has also made it clear that she seeks a deal based on reciprocity, which also secures the status of UK nationals living elsewhere in the EU.

[Amber Rudd]

I will of course read the report with the respect and interest that it deserves. Nevertheless, I feel that reciprocity is an important part of securing the position not only of the EU nationals, who add such value to our economy and are so welcome here, but the UK citizens who live their lives abroad in the EU.

[Brendan O’Hara]

This weekend, Rita Windham-Wright, a Hungarian national living in Oban told me that she and her family were considering leaving Scotland, Celia Krezdorn from Helensburgh, a Swiss national married to a German, whose children are Scottish, told me they have no idea what the future holds for them, and Jean Michel Voinot from Lochgilphead asked whether his family will be able to hold together. Given that the Exiting the European Union Committee said it would be “unconscionable” if such people were to be denied clarity about their future, how do the Government intend to—