Investigatory Powers Bill (Tenth sitting)

Debate between Gavin Newlands and Keir Starmer

Committee Debate: 10th sitting: House of Commons
Thursday 21st April 2016 Public Bill Committees

[Gavin Newlands]

It is a pleasure to serve under your chairmanship, Mr Owen. May I add to your comments that I will miss the exchanges with the hon. Member for North Dorset? I wish his replacement well.

Clauses 109 and 110 deal with issues about compelling a third party to provide assistance in the execution of a warrant and extraterritoriality, which is the subject of amendment 293. In speaking to the amendment, and to the clause more generally, I will unavoidably stray into matters relating to clause 110, as the two are inextricably linked.

Clause 109 provides the UK Government with the power to issue warrants that in turn force third-party organisations or individuals outside the UK to assist in acquiring information for the means of equipment interference. The clause states that

“any person whom the implementing authority considers may be able to provide such assistance”

can be served with a warrant to assist in carrying out a targeted hacking warrant. Under clause 110(2), this warrant may be served at a person’s principal office or specified address in the UK, or by making it available for inspection in the UK after appropriate steps have been taken to bring the contents of the warrant, and its very existence, to the attention of the person.

First, the problem here is the lack of judicial authorisation in this part of the process. Privacy International rightly points out that this compelled assistance will not be subject to judicial authorisation. Although law enforcement and security and intelligence agencies will have to seek a warrant to gain access to people’s devices and computers, it is correct that those authorities are not required to seek judicial approval to compel technology companies to assist in their investigations.

Secondly, we should be mindful of the difficulty that this places on any individuals or organisations who are forced to comply with the Government’s demands. These issues were heard by the Science and Technology Committee, where serious concerns were raised about the security implications of forcing companies to, for example, upload and install malware, as well as the fear that equipment interference could jeopardise their business model. The Science and Technology Committee took note of these issues and concluded that

“the industry case regarding public fear about ‘equipment interference’ is well founded.”

Amnesty International UK is deeply concerned about the dangerous precedent that this broad, aggressive power will set in forcing third-party companies to engage in hacking without any independent provision or scrutiny, and to do so in secret.

Thirdly, the extraterritorial measures in clauses 109 and 110 may cause more problems than they solve. That is why amendment 293, which stands in my name and that of my hon. and learned Friend the Member for Edinburgh South West, seeks to delete subsection (3) entirely, thereby removing the extraterritorial aspect. If we serve hacking warrants on those outside the UK, what sort of message does that send to other countries? We need to be mindful that introducing this type of clause could open the floodgates for other countries to follow suit, which will ultimately have an impact on companies based in the UK. That point was articulated by Yahoo!, which said:

“Extraterritoriality encroaches on the sovereign rights of other governments and risks retaliatory action, including against UK CSPs operating overseas.”

On that point, the Government’s independent reviewer’s report suggests that, when countries seek to extend their legislation extraterritorially, those powers may come into conflict with legal requirements in the country in which companies being asked to comply with a legal request are based. Companies explained to the reviewer that they did not consider it was their role to arbitrate between conflicting legal systems. The protection of vital human rights should not be left to the goodwill and judgment of a company. The concerns of the industry were articulated in this perfect quote. The industry

“expressed concerns that unqualified cooperation with the British government would lead to expectations of similar cooperation with authoritarian governments, which would not be in their customers’, their own corporate or democratic governments’ interests.”

I shall finish with this comment from Yahoo! It states:

“The current legal framework comprises the law in the requesting country, law in the receiving country and the international agreements that connect the two.”

It is additionally possible that the requesting and receiving countries’ laws may be in conflict. For example, the receiving country’s law may outlaw the provision of content data outside their own legal process. It continues:

“Taken as a whole, this framework is fragmented, with gaps and conflicts which have gone unaddressed for many years. In this more global communications environment, this fragmentation has become more and more obvious and creates a patchwork of overlapping and conflicting laws which overseas and domestic UK CSPs must navigate in order to discharge their legal obligations to safeguard users’ privacy and to respond appropriately to valid requests for access to data… It also creates a complex environment for users to navigate and establish their privacy rights.”

This issue is global, and national laws cannot resolve global issues.

[Keir Starmer (Holborn and St Pancras) (Lab)]

I will be brief. Members will have observed that the amendments in my name are in keeping with my previous amendments about implementation, service and extraterritoriality in relation to other warrants. I will not repeat the points I made then. The only one that is different is amendment 646, a simple proposed change to clause 109 that would add the provision:

“A warrant may be implemented only to the extent required for the purpose for which the warrant was issued.”

I think that may be implicit. If the Minister could indicate that that is his understanding, that might allay concerns and the amendment would not need to be pressed.

[The Minister for Security (Mr John Hayes)]

As the hon. and learned Gentleman says, we have been down this road before. I well recall discussing similar amendments to the targeted interception provisions in part 2. The Bill maintains the existing position in relation to extraterritorial jurisdiction and those obligations that apply to overseas companies. I am unhesitating in my view that overseas companies, because of their important role in communications, must do their bit to do the right thing, as I said previously and memorably. As a result, I will not tire the Committee by going into that argument in great detail.

Amendment 293 to clause 109 seeks to remove the ability to serve a warrant on an overseas provider and amendment 645 seeks to remove the ability to serve a warrant on an overseas provider when a mutual legal assistance agreement is in place. I draw the Committee’s attention once again to David Anderson’s comments in his report, in paragraph 11.26:

“There is little dispute that the MLAT route is currently ineffective.”

I will not quote it at length but he goes on to say that it is because it is too slow and so on. I do not think that those amendments are in line with either his view or mine.

The effect of accepting the first amendment is evident. It would mean we could serve an equipment interference warrant only on a provider based in the UK. The second amendment seeks to assert mutual legal assistance arrangements as the only route. For the reasons I have already given, that is not appropriate.

The hon. and learned Gentleman asked, in the context of his amendment, whether that matter was implicit. Yes, it is implicit and I can confirm what he thought might be the case.

The arguments have already been made and, on careful reconsideration, the hon. Member for Paisley and Renfrewshire North will realise that his amendment and argument are pseudodox and will withdraw on that basis.

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[Gavin Newlands]

I shall do my best impression of her, Mr Owen, but I fear it will be inadequate.

I beg to move amendment 296, in clause 113, page 91, line 22, at end insert—

“(A1) Material obtained via a warrant under this Part may only be shared with overseas authorities in accordance with the terms of an international information sharing treaty.”

This amendment would require that information obtained via an equipment interference warrant is only shared with overseas authorities where a mutual legal assistance treaty has been put in place for the purpose of doing so.

Clause 113 deals in part with the overriding issue of information obtained through equipment interference being shared with overseas authorities. We should take note of the oral and written evidence submitted by Amnesty International on this point about the lack of any proper controls over intelligence sharing with foreign authorities. The human rights implications may be very serious indeed. For example, there is nothing in the Bill to prevent data being shared with an overseas authority when that might lead to the abuse, or possibly torture, of an individual or group. Surely we should set an example by ensuring that data gathering does not lead to torture; that should be the minimum standard expected of a civilised country such as ours.

However, if the SNP and Amnesty International are a little left-wing for hon. Members’ tastes, I give them the Intelligence and Security Committee, which also criticised the lack of clarity on this point when it noted that the Bill

“does not…meet the recommendations made in the Committee’s Privacy and Security Report that future legislation must set out these arrangements more explicitly, defining the powers and constraints governing such exchanges.”

The written evidence submitted by Yahoo! and others expressed concern that the Government’s apparently unilateral assertions of extraterritorial jurisdiction

“will create conflicting legal obligations for overseas providers who are subject to legal obligations elsewhere.”

David Anderson has also noted the lack of detail in this section of the Bill. He called for information sharing with foreign countries to be subject to strict, clearly defined and published safeguards. His report states:

“The new law should make it clear that neither receipt nor transfer as referred to in Recommendations 76-77…should ever be permitted or practised for the purpose of circumventing safeguards on the use of such material in the UK.”

However, such safeguards and guarantees are notably absent from the Bill. Furthermore, the independent reviewer’s report described the international trade in intelligence between the “Five Eyes” partners—the UK, the USA, Canada, Australia and New Zealand. In so far as material gathered by the British services is shared with other countries, the report explained that the security services take the view that, under their founding statutes, information should be shared only if it

“is necessary for the purpose of the proper discharge of the security and intelligence agencies’ functions.”

When it is considered that the test is met, certain safeguards apply under the Regulation of Investigatory Powers Act 2000. However, the report concluded that

“in practical terms, the safeguards applying to the use of such data are entirely subject to the discretion of the Secretary of State.”

The 2000 Act and the codes of practice are silent on British services receiving or accessing information from foreign services, with security services limited only by the general constraints placed on their actions by various statutes. It was only during Liberty’s legal action against the security services in the Investigatory Powers Tribunal that limited information was revealed about the way in which the security services approach such situations. In its first finding against the agencies, the IPT held that, prior to these disclosures, the framework for information sharing was not sufficiently foreseeable and was not therefore in accordance with law. The tribunal held that, because the litigation had resulted in disclosures of information, the security services were no longer acting unlawfully when accessing information from the US. Based on the concerns that Amnesty International, Liberty and others have raised, the SNP has tabled amendment 296, which would insert a new subsection into clause 113. The language of the amendment is plain.

[Keir Starmer]

I have listened carefully to the hon. Gentleman’s comments. On the sharing of information with authorities that may engage in torture or other serious ill-treatment, can the Minister confirm the long-standing practice that our security and intelligence services do not share information where there is a risk of torture, because of their obligations under other international treaties, and that this provision sits within that framework of assurances?

[Mr Hayes]

I can confirm that, and I can say a little more. My residual generosity is such that I take the view that these amendments are well intentioned, but they are unnecessary. Let me say why.

Clause 113 already provides that the Secretary of State must ensure that satisfactory and equivalent handling arrangements are in place before sharing UK equipment interference material with an overseas authority. The Secretary of State must determine that they provide corresponding satisfactory protections. Furthermore, those obligations sit alongside those in, for example, the consolidated guidance to intelligence officers and service personnel on the detention and interviewing of detainees overseas, and on the passing and receipt of intelligence relating to detainees, as well as the gateway provisions that allow for intelligence sharing in the Intelligence Services Act 1994 and the Security Service Act 1989.

In addition, the overseas security and justice assistance guidance provides an overarching mechanism that sets out which human rights and international humanitarian law risks should be considered prior to providing justice or security sector assistance. This is supplemented by the draft code of practice on equipment interference, which is clear about the safeguards on the handling of information. It seems to me that the protections, absolutely necessary though they are, are comprehensively dealt with by that variety of means, rendering the amendment unnecessary. I invite the hon. Gentleman to withdraw it.

[Gavin Newlands]

I thank the Minister for his comments, and I am somewhat reassured, but I still do not understand the Government’s reticence about putting this in the Bill; it is only a sentence that is required. Nevertheless, we are minded to withdraw the amendment at this time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 113 ordered to stand part of the Bill.

Clause 114

Duty not to make unauthorised disclosures

[Keir Starmer]

I beg to move amendment 649, in clause 114, page 91, line 42, after “not”, insert “without reasonable excuse”.

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[Keir Starmer]

I have said all that I need to say on the amendment. Members of the Committee will appreciate that the amendment has been tabled for each of the offence provisions for the reasons I set out the first time we encountered it. That was dealt with by the Solicitor General, so I shall say no more about it at this stage.

[Gavin Newlands]

I will not detain the Committee long. I hear what the hon. and learned Gentleman says and broadly agree with it. I rise merely to point out the differences between the two amendments before us. The SNP’s amendment would insert an additional subsection that adds the additional defence and leaves subsection (3) in, whereas the Labour amendment removes that.

Investigatory Powers Bill (Eighth sitting)

Debate between Gavin Newlands and Keir Starmer

Committee Debate: 8th sitting: House of Commons
Tuesday 19th April 2016 Public Bill Committees

[Keir Starmer]

I cannot double check on my feet, but that sounds like the further evidence that was put before the Joint Committee when it was in the middle of its deliberations. In fairness, the Home Office did go beyond websites to include some, maybe all, of the matters to which the hon. and learned Lady just referred.

The way this will operate in practice is a cause of real concern. The Secretary of State, without the double check of a judicial commissioner, and operating against a low-level threshold—clause 53(7)—can issue a retention order that will permit the retention of a record of all the websites that somebody has visited. That record will then be kept for 12 months, albeit with a different test if it is to be accessed later.

The amendments—I think you have called them the first set of amendments, Ms Dorries—are intended to construct in the first instance a different framework around this power, because it is so extensive, and put it in the hands of a judicial commissioner rather than the Secretary of State. That would provide a greater safeguard in relation to clause 78, with independent oversight through the function of the judicial commissioner. Alternatively, amendments 152, 153 and 222 would give the Investigatory Powers Commissioner some oversight. In other words, the intention behind these amendments is to put some rigour and independence into the exercise of what is a very wide power that, in fact, is the starting point for the exercise of all the other powers under the parts of the Bill that we are now concerned with.

Anxiety has been expressed on a number of occasions about cost. Huge amounts of data could be required for retention under clause 78. The Government have estimated the cost at £170 million. That is considered to be a gross underestimate by those who will no doubt be called upon to actually retain the data. For those reasons, these amendments are intended to tighten up a clause that is very wide and very loose. It permits a huge amount of data to be retained, including websites visited by you, by me, or by our constituents.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a great pleasure to rise as part of this ongoing scrutiny, and to offer my hon. and learned Friend the Member for Edinburgh South West brief respite in this Committee. It is also a great pleasure to serve under your chairmanship, Ms Dorries. It is great to follow the hon. and learned Member for Holborn and St Pancras, who in his customary fastidious and engaging manner has covered in a short space of time all the aspects of many amendments. Some of that bears repeating, and I will speak to new clause 10, which is tabled in my name and that of my hon. and learned Friend the Member for Edinburgh South West.

My hon. and learned Friend spoke at length about the important role that the judiciary, in the form of judicial commissioners, should bring to this process. We do not think it is good enough that the Bill only proposes to use judicial commissioners to review the process used by the Secretary of State in making a decision. The Government may claim that it is important that the Home Secretary retains the power to issue retention notices to internet service providers, as it will ensure that democratic accountability is a salient feature of the process, but I do not accept that to be the case. In fact, I would argue that because of the political arena that any Home Secretary operates in, it is right that this power is handed to and delegated to an independent official such as a judicial commissioner.

It is also worth noting that we know very little of the various notices that the Home Secretary issues, and as such there is no possible opportunity to hold her to account for them. Building the role of judicial commissioners into this part of the process will help to ensure that we have appropriate checks and balances when it comes to the retention of communications data. This is vitally important, because it is the proper constitutional function of the independent judiciary to act as a check on the use of intrusive and coercive powers by state bodies, and to oversee the application of law to individuals and organisations. Liberty rightly points out that judges are professionally best equipped to apply the legal tests of necessity and proportionality to ensure that any surveillance is conducted lawfully.

I turn now to new clause 7. Schedule 4 provides a lengthy list of bodies that are able to access or retain data, including several Government Departments, such as the Department for Transport, and a range of regulatory bodies, such as the Food Standards Agency and the Gambling Commission. This suggests that access to communications data may be allowed for a range of purposes which may be disproportionate and inconsistent with the guidance offered by the European Court of Human Rights.

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[Keir Starmer]

Clause 78 is important for all the reasons that I have set out, but at this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Gavin Newlands]

I beg to move amendment 303, in clause 78, page 61, line 12, leave out—

“of all data or any description of data”

and insert

“of specified relevant communications data”.

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[Gavin Newlands]

I am content to withdraw the amendments at this stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I rise to speak to amendment 152, in clause 78, page 61, line 36, at end insert “, and

(c) only when approved by the Investigatory Powers Commissioner.

(5A) In deciding whether to approve a notice, the Investigatory Powers Commissioner must determine whether a notice is—

(a) that the conduct required by the notice is necessary for one or more of the purposes in section 53(7); and

(b) that the conduct required by the notice is proportionate to what is sought to be achieved by that conduct.”

Investigatory Powers Bill (Second sitting)

Debate between Gavin Newlands and Keir Starmer

Thursday 24th March 2016 Public Bill Committees

[Gavin Newlands]

Q So at the moment the Bill is not clear enough on that aspect?

Mark Hughes: It could be clearer, and we are thinking about proposing an amendment specifically to over-the-top providers, making it clear that they are responsible for that.

[Keir Starmer]

Q Can I come back to the question of what constitutes an internet connection record? It is the record that you may be responsible for keeping and passing over, so it is important that you have clarity. I take it from your previous answers that you have said some of it will be data that you are already collecting for your own purposes, and some of it will be other data that you are not currently retaining but will retain as a result of the Act. What are the data you are currently retaining? What is the bit that you keep already?

Mark Hughes: I gave an account number as an example. We obviously know our customers’ account numbers, so that is something that we currently have, and we have other types of information, as I went through, which are potentially subject to other pieces of legislation on retaining data. The point about the internet connection record is that it is rather like a series of ingredients, which you have to put together to create the record.

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[Gavin Newlands]

I might not have used easyJet for several months, but the app still connects my phone to easyJet’s service provider. Likewise, I have a British Airways app. None of that limits any effectiveness for you?

Chris Farrimond: What I would expect to get is something showing you connected to easyJet for two minutes rather than for a nanosecond, or for an upgrade coming through. If we saw two minutes, we would say, “He did something with easyJet at that point.”

Richard Berry: Things like the tracking cookies you have on normal websites are not relevant information for our purposes. To offer a point of reassurance, we have a decade of experience of looking at what relevant data should be retained. ICRs are no different to that principle. Prior to any retention notice being served on a particular provider, law enforcement, the Home Office and the provider will be looking at the operational benefit, the cost and the technical feasibility of what data they hold and what data we would use. It almost takes each provider on a case-by-case basis to ensure we are gathering only relevant information. We could see those feeds back—the little connections you are talking about—being ruled out of the data we need to retain.

[Keir Starmer]

Q May I go back to the definition of internet connection record? To take it in stages, you are obviously concerned about your ability to deal with serious crime and the visibility of what you can do; I completely understand that. You make an ask of the Home Office, which as you said, is basically, “Who? When? Where? How?” That is where you think you need to go next, to maintain the ability you have now, because of the different ways people are communicating.

From that, you said, “Well, therefore The Guardian is enough for us, not that someone went to a page on Libya or clicked on something about Libya bombings, because that is not within our ask.” My difficulty is not to challenge why you want that, what you use it for or its utility. I just cannot see how the definition in the Bill is limited to your ask; in other words, it appears to go as far as you want to go.

Tell me if this is an unfair question, because it is about the words on the page, but which bit of the definition you understand to be the word or words that limit it to what you say you are asking for, rather than letting it go any further? At the moment, I cannot see that bit of the jigsaw. In other words, which is the trigger word in the definition of internet connection record that says The Guardian website but not “within The Guardian, the words ‘Libya’ or ‘bomb’” or whatever it may be that means we cannot go beyond what you have asked for?

Chris Farrimond: It is a bit difficult for us, because as law enforcement officials, we have no hand in writing the Bill.

Immigration Bill (Fourteenth sitting)

Debate between Gavin Newlands and Keir Starmer

Tuesday 10th November 2015 Public Bill Committees

[Keir Starmer]

This is a daunting number of amendments, but most relate to extensions with respect to Scotland, Northern Ireland and Wales.

There are three substantive points. First, as the background to amendment 230, schedule 8 inserts new schedule 4A into the Immigration Act 1971. It covers enforcement powers

“exercisable by immigration officers, English and Welsh constables and enforcement officers”

in relation to ships. We spoke this morning about the power to stop, board, divert and detain a ship, and about the power to search and obtain information under new paragraph 3. Under new paragraph 3(2) the “relevant officer” may search

“the ship; anyone on the ship; and anything on the ship”.

The provision to which amendment 230 relates is new paragraph 3(8), which states:

“A power conferred by this paragraph may be exercised on the ship or elsewhere.”

“Elsewhere” is obviously widely defined. There is a power to search the ship and anyone or anything on it, which suggests that it is ship-focused, but sub-paragraph (8) is open-ended and provides for a power to search on the ship or anywhere. To some extent the amendment may have a probing function to enable us to understand the reasoning behind the provision, but our concern is that the power is very broad and we seek assurance that it is not intended that the power under the schedule could be exercised literally anywhere, at any time.

Secondly, to give the context to amendment 239, new paragraph 4 deals with the power of arrest and seizure; new paragraph 5 is on protective searches of persons—searches that can be made of individuals to seize and retain items; and new paragraph 6 deals with searches for nationality documents.

Then comes new paragraph 7, which is odd. The “relevant officer” appears pretty well through the Bill and is the officer with the relevant powers, training, duties and so on. New paragraph 7(1) provides for assistants:

“A relevant officer may…be accompanied by other persons”.

Then sub-paragraph (2) creates a very broad power:

“A person accompanying a relevant officer under sub-paragraph (1) may perform any of the officer’s functions under this Part of this Schedule, but only under the officer’s supervision.”

If that means what it says, anybody can exercise powers of search, including searches of people, and other powers without the need for any of the normal training and safeguards around the exercise of that power. On the face of it, simply anybody with the officer who is deemed to be an assistant can carry out all of these functions. That is an extraordinarily wide power. I do not think that exists in other areas of the law. Designating someone as an assistant in that way certainly does not exist in relation to police officers or other enforcement officers. That is a very broad power.

Thirdly, on amendment 242, we turn again to page 116 and the same set of provisions:

“A relevant officer is not liable in any criminal or civil proceedings for anything done in the purported performance of functions under this Part of this Schedule if the court is satisfied that—

(a) the act was done in good faith, and

(b) there were reasonable grounds for doing it.”

That is a very wide-ranging immunity which is as broad as anything I have ever seen. If, heaven forbid, there were a fatality when someone was being held or searched or force was used—as has tragically happened in immigration cases—this would exempt from any criminal or civil proceedings anyone acting in good faith with reasonable grounds, notwithstanding the other common law and statutory defences that would be available. On the face of it, that would prevent a court looking into the exercise of these powers. That is obviously a deep cause for concern. Although there are many amendments, those are the three core issues that run through the set.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

We can all agree that we do not want to see anyone attempt to gain illegal entry into the UK by means of being smuggled in an overcrowded boat or vessel. Ensuring that immigration officials have the proper power to carry out their important duties is important not only in terms of enforcing our immigration control but with regards to increasing safety at sea.

That said, part 6 and, in particular, schedule 8 introduce a raft of new powers for immigration and maritime officers. It is only right and proper that we scrutinise those powers appropriately to ensure that the proper powers are being introduced to the correct officers and that they balance appropriately with the liberties that people are entitled to. I am not convinced that these provisions in their current form meet that aim and balance the equipping of immigration officers with the power that they need with ensuring that they treat international citizens with the respect that they deserve. Therefore, the aim of the amendments is to strike that balance between protecting an individual’s liberty and human rights and giving Home Office officers sufficient, important powers to carry out their duties. I accept that this is a difficult balance for the Home Office to strike.

We should be concerned about the regular use of the word “elsewhere” throughout this section of the Bill and what that implies. This in particular relates to the searches that will be conducted into the personal lives of individuals. In earlier sittings of the Committee, we have spoken about the dangers of speculative searches and the Home Office’s poor track record on completing them. I will not repeat the arguments already made but I will stress that these searches could have a significant and deteriorating impact on community relations and social cohesion.

Amendments 239, 240 and 241 make the point that, regardless of what happens with the Bill and the form it ends up taking, regardless of what law is finally passed, we all need to be sure that we have fully trained, capable and appropriate individuals carrying out the checks and enforcement that the law will demand. They will have powers of arrest without warrant, search, arrest and seizure. The Bill proposes that persons wholly unspecified may be able to carry out all these powers without limitation, under supervision of an immigration officer. Any powers under these provisions should be exercised by immigration officers alone. The amendments will ensure that the Home Office has the appropriate immigration officers carrying out the proper checks. The power and functions relating to this section of the Bill are wide and varied, including arresting without warrant, seizing property and conducting searches. The implications for the individuals concerned are so severe that these functions must be exercised by fully trained immigration officers. There is no excuse for them not to be.

The responsibilities of immigration officers who are operating at sea are arguably more demanding than those who are operating on land. Not only do they have to be qualified in immigration law, but they have to be experienced at dealing with ships at sea. This is an extremely important point. Safety concerns are at stake and I again make the point that we cannot make a half-hearted attempt on who we delegate these powers to. Schedule 8 may not have been one of the most widely discussed provisions in the Bill, but that should not distract our attention from it. Events over the summer have highlighted the danger that exists in trying to gain asylum through a vessel of some sort. Schedule 8 grants officers the

“Power to stop, board, divert and detain”

ships for immigration offences. Safety concerns arise in that regard and therefore careful consideration should be given to the schedule and the amendments that have subsequently been proposed.

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[Gavin Newlands]

They say that a country should be judged based on how it treats the most vulnerable, but the way that we have treated people who are attempting to gain asylum into the UK has been, at times, shocking.

The UK is the only country in Europe that uses detention with no official end date and that should shame us all. I am sure that I am not the only one who has been appalled at some of the detention stories that we have read about or seen on television. In particular, “The Glasgow Girls” served as a harrowing reminder of the cruelty that the UK’s detention policy brings about. Even though the policy of detaining children was ended in 2010, the Scottish Refugee Council has highlighted that children are wrongly assessed as being of adult age and therefore are still being detained. The council says:

“A small number of children are still detained at the end of the asylum process, after their case is heard by an independent panel, in Cedar’s Pre-Departure Accommodation. It is run by private companies…with welfare services provided by Children’s Charity Barnardo’s. This ‘open’ facility is designed as a last resort, before families are removed to their countries of origin. But there are still concerns about the affect its use has on children—many of whom are sent from Scotland on their way to their countries of origin.

In addition, some children who have been wrongly age assessed as adults find themselves detained, often for long periods of time.”

I hope that the new clause serves as a catalyst for further investigation, so that these young people/children are treated with dignity and respect, and are not detained full-stop. Westminster might still favour the policy of detention, but I think that we all agree that detaining young people is cruel and inhumane, and I ask the Immigration Minister to look further at this issue.

The case of Souleymane, who was detained for three and a half years, was highlighted in the detention inquiry report, and it serves as another cruel reminder of the policy of detention. There is no excuse for such a long period of detention. The case highlighted that detainees were being transported from one detention centre to another. The length of time that Souleymane spent in detention had an obvious and significant impact on his mental health, and I must ask, is that something that we are proud of?

New clause 3 does not go far enough, in that it has a caveat that I do not agree with. Nevertheless, it is a massive step in the right direction. Again, I want to see the ending of the policy of detention, as it is not a sign of the caring and compassionate country that I recognise the UK to be. The new clause will leave the provision for the Home Secretary to detain someone beyond 28 days by varying the time limit by category of person. In and of itself, it does not prevent cases such as that of Souleymane from happening again, as it hands the Home Secretary a wide discretionary power to overcome the 28-day obstacle.

Also, the parliamentary inquiry report suggested that the longer an individual is detained, the less likely it is that they will be removed from the UK. For example, the report found that, of the 178 people who have been detained for 12 months or more, 57% of them were ultimately released.

In talking about detention, I must use this opportunity to praise the work of the Scottish Refugee Council and other community-based organisations and groups that support asylum seekers on the frontline. Regardless of our political views, we should extend a debt of gratitude to those groups for the fantastic and at times difficult work that they do. The Bill and this provision in particular will have a significant impact on their work, and it is important that we support them when the Bill becomes law. Therefore, I ask the Immigration Minister to take time to meet groups such as the Scottish Refugee Council to learn more about the issues that they face, and to find out what support they need to perform their important jobs.

Detaining someone for any period of time is not something that we should be proud of. These detention centres are a symbol of the cruel approach that successive UK Governments have adopted with regard to asylum seekers. That is why we in the SNP do not think that the new clause goes far enough. The SNP policy on asylum seekers is more progressive. We want asylum seekers to have the chance to work, earn a living, pay tax and contribute to the community while they are waiting for a decision to be made on their application. Economically that makes sense but, more importantly, it is the right and moral thing to do.

[Keir Starmer]

I support my hon. Friend the Member for Sheffield Central’s new clause and I pay tribute to the part he played in the report to which he referred. As he said, the report was powerful and strong recommendations were made. The key recommendations from the report were, first, that there should a limit of 28 days on the length of time anyone can held in immigration detention. Secondly, detention is currently used disproportionately frequently, resulting in too many instances of detention. The presumption, in theory and practice, should be in favour of community-based resolutions and against detention. Thirdly, decisions to detain should be very rare and detention should be for the shortest possible time and only to effect removal. Fourthly, the Government should learn from international best practice and introduce a much wider range of alternatives to detention than are currently used in the UK.

This is a real concern, a growing concern and a cross-party concern. I know that the Stephen Shaw work has been done and there is a report. I think that that mainly touches on welfare, but I will be corrected by the Minister if I am wrong. The new clause is important because it goes well beyond welfare issues; it is a point of real principle. In that spirit I support it.

--- Later in debate ---

[Keir Starmer]

On a point of order, Mr Owen. I endorse that point of order. Not only for the group the Minister spoke of but for those of us who have gone round this track for the first time, your help and assistance and that of the Clerks has been invaluable to each and all of us.

[Gavin Newlands]

Further to that point of order, Mr Owen. May I point out that I was 6 feet behind Anne when the doors were locked for the earlier vote?

Immigration Bill (Twelfth sitting)

Debate between Gavin Newlands and Keir Starmer

Thursday 5th November 2015 Public Bill Committees

[Keir Starmer]

I beg to move amendment 222, in schedule 6, page 90, leave out lines 28 to 30 and insert—

‘(i) in subsection (2A) for “accommodation” each time it occurs substitute “support” and for “section 4” each time it occurs substitute “section 95A”, and

(ii) in subsections (6) and (7), for “section 4 or 95” substitute “section 95 or section 95A”’.

To provide a right of appeal against decisions of the Home Office to refuse or discontinue support under new section 95A for asylum seekers at the end of the process who are unable to leave the UK.

The amendment would provide a right of appeal against Home Office decisions to refuse or discontinue support, under new section 95A of the Immigration and Asylum Act 1999 as inserted by the schedule, for asylum seekers at the end of the process who are unable to leave the UK.

The right of appeal would be against decisions on support that are wrong. To give some context, Home Office decision making about support is particularly bad. We have heard statistics about Home Office decision making in general, but the success rate for challenges to support decisions is very high indeed. For example, from September 2014 to August 2015, the asylum support tribunal received 2,067 applications for appeals against Home Office refusal of asylum support. Of those, 44% were allowed by the tribunal, and 18% were remitted to the Home Office for a fresh decision or withdrawn because of an acknowledgment that the decision making was flawed. Together, that is a 62% success rate.

I caveat that figure, as I have in previous discussions about appeal rates, but it is an incredibly high success rate. It beggars belief that, when the statistics are of that order, there is to be no right of appeal in a simple case of a wrong decision on support. It is another example of removing the ability of people—often vulnerable people—to challenge a decision that is wrong and put it right. Therefore, we have tabled the amendment.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

We have heard from other Members about the serious impact on individuals and their children of losing all forms of support. The amendment would ensure that we did not leave people, including children, helpless and possibly destitute while awaiting removal from the UK.

If the schedule is not amended we will be treating refused asylum seekers with complete contempt. We will be saying to them that we do not care how they support themselves while awaiting removal. I ask Members this: if that bleak scenario were to become a reality, what advice would they give those people when they came to their surgeries? Would Members walk past them in the street when they needed our help? Would Members close their eyes, put their heads down and walk past children who had been affected and needed something to eat or a place to stay? I think not, but that is what the schedule allows for. I hope that Members see the stark reality that faces us if it is not amended.

Liberty has pointed out that the Government’s own document, “Reforming support for failed asylum seekers and other illegal migrants”, states that the removal of any support for failed asylum seekers should be seen in the context of the wider enforcement powers that the Government have at their disposal. I have to say that that way of looking at the issue is crude, verging on inhumane. Are we honestly at a stage now where we are telling people to go cold and hungry to enforce immigration measures?

Not only is the position inhumane, but removing a person’s support does not achieve the aim of deporting them from the country any sooner, as was highlighted by the 2005 pilot that has often been mentioned in our discussions. I accept that the Home Secretary may wish to have the power to discontinue support for refused asylum seekers, but an avenue of appeal should exist to allow those affected to explain their circumstances and have their bare minimum support—let us not forget that they will have been surviving on a pittance—reinstated. The right of appeal proposed in the amendment is essential to ensure that impoverished asylum seekers are able to access the support that they are entitled to and desperately need.

As I have said, routes of appeal exist for a reason—to correct a wrongful decision. On the evidence of appeals against decisions on loss of support taken by the Home Office, we would conclude that a power of appeal against wrongful decisions made by the Home Office is of the utmost importance. The Immigration Law Practitioners Association has produced a helpful briefing detailing statistics from the asylum support tribunal. According to ILPA, 62% of appeals received by the tribunal had a successful outcome. From September 2010 to August 2015, the tribunal received 2,067 applications for appeals against a refusal of asylum support, of which it allowed 44% and remitted 18%. Furthermore, research conducted by the Asylum Support Appeals Project found that the majority of support cases are overturned at the appeal level, with the number of successful appeals varying between 6w0% and 80%. A range of sources put forward the strong argument that the Home Office has a poor track record of decision making when it comes to removing support from an individual, and the consequences are of the utmost seriousness.

Immigration Bill (Ninth sitting)

Debate between Gavin Newlands and Keir Starmer

Tuesday 3rd November 2015 Public Bill Committees

[Keir Starmer]

I can deal with it very quickly because it is on a theme. It is simply a new clause to remove the power to extend, by regulation, the provisions of the Bill on residential tenancies beyond England and to restrict the provisions of the Immigration Act 2014 pertaining to England unless the devolved Administrations consent to their further extension. It is a fall-back position.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

I previously discussed briefly how the Bill affects areas of devolved legislation in Scotland and how it, and clause 15 in particular, fit with the UK Government’s implementation—in full, allegedly—of the Smith commission. There is another debate to be had about whether the Smith commission lives up to the vow that was made to the Scottish people. Members will be aware that a vow was made to represent near federalism or home rule within the UK. They will also be aware that most, if not all, definitions of federalism or home rule suggest that all powers except defence and foreign affairs will be devolved to another local level—the Scottish Parliament, in this case. That debate will be had in another time and place, but we should reflect on the manner in which the Bill affects Smith and the passage of the Scotland Bill.

The Smith commission opened up the possibility that the Scottish Parliament will be allowed to develop and design certain immigration powers to cope with the particular and different demands affecting Scotland. When we combine that with the fact that housing is already devolved to Scotland, the uncomfortable truth for the Minister is that the Government are trying to pull a fast one here. Why else would the Minister refuse to meet the Scottish Government Minister for Housing and Welfare, who requested a meeting on this very issue?

Amendments 78 to 82 provide that the right to rent policy would not apply to Scotland. There are a number of additional reasons over housing being devolved as to why the SNP group believes that these amendments are justified. The powers in the previous Scotland Act have just started to be implemented and we are debating further powers in the latest incarnation of the Scotland Bill, including putting the Sewell convention on a statutory footing. However, we also think that the right to rent policy is simply a bad policy that lacks the appropriate evidence base. If it is rushed through it will not only have a significant impact on tenants but affect landlords and letting agencies.

During the evidence session we heard from a range of bodies that have voiced concern about the right to rent policy. A lot of these experts and agencies have already been quoted at length, so I shall not test the Committee’s patience by repeating them ad nauseam. However, it is not only these important UK-wide organisations voicing concern about this policy; as my hon. Friend the Member for Glasgow North East mentioned, the Law Society of Scotland has deep concerns. It is worth reflecting on its contribution:

“In relation to the proposal to empower the Secretary of State to amend or repeal provisions of Acts of the Scottish Parliament, we are concerned that the potential for unlawful discrimination and for human rights breaches have not been fully considered. We consider that consultation with a view to seeking the legislative consent of the Scottish Parliament should be initiated”.

The Scottish Federation of Housing Associations is also calling for the right to rent policy to be repealed, as the checks that are required to be undertaken are causing

“disproportionate and unnecessary stress upon our members’ resources that are already under pressure due to the financial impacts of supporting tenants through welfare reform, and other financial constraints”.

However, organisations are not only voicing concern about the financial costs that are being levelled against landlords as a result of the right to rent policy; they also do not think it is right that they are being asked to perform the duties of an immigration official. The SFHA’s written evidence questioned whether it was appropriate for landlords to be acting as the UK Government’s very own immigration agents. That is a reasonable question, since our landlords and letting agencies do not have the training or the expertise to be able to ascertain someone’s immigration status. These are fundamental concerns that need to be addressed, and the snapshot, rushed and ill-equipped evaluation that the UK Government have hastily put together on the right to rent policy fails to address the points that have been raised.

The SNP would like to see the right to rent policy being scrapped across the whole of the UK, reducing the discrimination that our international friends face regardless of where they might be staying. Nevertheless, we accept that the UK Government have the mandate to roll out this scheme across England. Equally, however, they must be willing to accept that Scotland should be exempt from the right to rent roll-out. The fact that housing is already devolved, combined with the content of the Smith commission, the views and evidence provided by a range of housing bodies, and the general election results in Scotland, create a strong and justifiable argument that amendments 78 to 82 should be accepted by the Government and the right to rent roll-out should not take place in Scotland.

Immigration Bill (Tenth sitting)

Debate between Gavin Newlands and Keir Starmer

Tuesday 3rd November 2015 Public Bill Committees

[Keir Starmer]

I beg to move amendment 209, in clause 19, page 23, line 10, at end insert—

‘(2A) in paragraph 2(2) after “examine” insert “at the point of entry into the United Kingdom.”

To limit the power contained in Schedule 2, paragraph 2 of the Immigration Act 1971 to examination at the point of entry, as intended by Parliament.

We move to part 3 of the Bill, which is on enforcement. Amendment 209 is intended to limit the power contained in paragraph 2 of schedule 2 to the Immigration Act 1971 to examination of individuals at the point of entry—on arrival in the UK—as intended by Parliament. There has been an ongoing dialogue, for want of a better word, between various concerned parties and the Home Office on the purported use of the power in places other than the point of entry. A number of organisations, including Liberty, have written to the Home Office.

At one stage, any purported reliance on the provision as giving a power to examine away from the point of entry was not accepted, but there is concern as to whether that is still the position, and the amendment is intended to clarify that. If that is the position, the amendment ought to pose no problem, because it would clarify that the examinations are at the point of entry into the United Kingdom. If, on the other hand, it is said to be the case that paragraph 2 of schedule 2 to the 1971 Act does give a power of examination away from the point of entry, obviously I will have more to say in my reply.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

Part 3 of the Bill deals with the powers that will be handed over to immigration officers, members of the public, on-service police officers and detainee officers, amongst others. Their powers will be extended to an unparalleled level. With the aim of clamping down on illegal immigration, this part of the Bill will equip immigration officers with enhanced search-and-seizure powers to collect evidence that will, according to Government, help to secure more civil penalties and removals.

Before discussing the specific amendments tabled, we should take note of the points made by the organisations that have provided evidence during the passage of the Bill. Liberty, in particular, has voiced a number of concerns about the Bill, including the extension of powers to be handed over to immigration officials, a lack of training and accountability for immigration officers, the expectation that those officers will carry out police-like activities and the transformation of members of the public into the UK Government’s very own immigration agents.

We should be concerned about the impact that this part of the Bill will have on people. Regardless of our own views on illegal immigration, the Bill needs to deal with illegal immigration in a humane, respectable and appropriate manner. The amendments tabled by Scottish National party and Labour Members aim to capture that mood and, in doing so, reduce the damaging impact that some of the clauses may have on people.

The Bill aims to clamp down on illegal immigration, and we should accept that action must be taken on those who are here illegally. Being classified as an illegal immigrant, however, creates a number of difficulties. As we have heard in our discussions on illegal working, the status of illegal immigrant can push a person and their family into a serious and vulnerable position. We should still treat people who are here illegally with respect and dignity. In addition, although illegal migration exists in the UK, we should not tackle it in a way that damages the experience that other migrants have while here. Clause 19 highlights that point. Tackling illegal immigration will have an impact on those who are living here or enter the UK illegally, but we should equally be concerned about the impact that the clause will have on migrants who have been granted legal authorisation to live in the UK.

--- Later in debate ---

[Keir Starmer]

Thank you, Mr Owen. It is a daunting list of amendments; I am sure those on the Government Benches are asking themselves whether I intend to push each of them to a vote, which would probably take us most of the rest of the afternoon.

These amendments are all directed to the concern that there is a merging in the Bill of immigration bail into what is, in truth, temporary admission. Temporary admission, temporary release and bail are being replaced by one form of admission, subject to conditions, which is being called “immigration bail”. The purpose of the amendments is to re-name “immigration bail” as “temporary admission”. Not only will that accurately reflect the status of the individual; it carries with it presumptions and assumptions about the way they are to be treated. The best example of that I can give is that, in relation to temporary admission, the presumption is in favour of temporary admission. By re-naming it immigration bail, the presumption—not in the Bill, I accept, but in practice—is one of detention, to which bail is the exception. This will obviously affect a wide category of individuals, including refugees, children, survivors of torture, trafficked persons and so on. Those presumptions and assumptions make a real difference on the ground and these amendments address that concern.

[Gavin Newlands]

It is important to remember that not all people who are being detained in detention centres are criminals or offenders. With that in mind, the wording and terminology is extremely important as we do not want to create a system or a process that gives a false, misleading or wrong impression. The Bill removes the concept of temporary admission and creates a situation whereby anyone without leave who is waiting for a decision on their application will be on immigration bail. Therefore, saying that someone is on immigration bail implies that they have conducted a criminal act of some sort, and that they are on temporary release from their place of imprisonment. However, as has been pointed out by the helpful House of Commons Library paper, people can be detained for a number of innocent and excusable reasons, such as detention until such time as a person’s identity or basis of claim has been established—asylum seekers, stateless citizens and so on. It is not right to claim that such people are on bail, since they are innocent people who have not done anything wrong. As such, “temporary admission” is a more fitting and appropriate term.

The Immigration Law Practitioners’ Association and others make the important point that:

“The terminology of ‘immigration bail’ suggests that detention is the norm and liberty an aberration and also suggest that persons seeking asylum are a form of criminal”.

Liberty also makes the point that:

“A large number of asylum seekers, previously granted temporary admission will now be seen exclusively through a prism of detention and bail, casting aspersions of illegitimacy and criminality”.

Immigration Bill (Eighth sitting)

Debate between Gavin Newlands and Keir Starmer

Thursday 29th October 2015 Public Bill Committees

[Keir Starmer]

My apologies. I was searching for it last night, and now I have found it. I gratefully adopt it, and put it back in its rightful place. Thank you, Mr Bone. I will master these procedures, if nothing else.

To a large extent, we have had the debate on why we say amendment 73 is necessary. It is an impact assessment premised, we say, on the lack of an evaluation that can give the right degree of assurance and satisfaction in relation to indirect discrimination. Amendment 86 is intended to safeguard children’s rights. It is an amendment to clause 13, which we will debate in greater detail, so I will not devote a great deal of time to it now.

The concern about clause 13 is that the process, once it starts, is that the Secretary of State serves notice on a landlord, and the landlord may terminate a tenancy when in receipt of a notice; that notice is then treated as notice to quit, and is enforceable as if it were an order of the High Court. We will debate that in some detail because it is an interesting innovation. The amendment is a limited strike at that measure, because if we are to have such a draconian scheme and children are involved, the process ought to include a safeguard and protection for children—it has almost no safeguards in it. I am sure that we can explore that.

Amendment 70 would defer the start date to 2018 to allow more time to give assurance to landlords and ensure that the scheme can be rolled out in a way that is fair and proportionate and does not lead to discrimination in any shape or form.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

I would like to discuss some of the wider issues with regard to clause 12 and the right to rent. I will speak specifically to amendment 86, which my hon. Friend the Member for Glasgow North East and I have signed.

Right to rent as it stands is a dog’s breakfast, the implementation of which has been rushed, without any serious consideration or analysis of the west midlands pilot scheme. Therefore, the extensions of the right to rent provisions in the 2014 Act have no factual or evidential basis. Indeed, the only real evidence that we have suggests that the provisions have already caused discrimination and have not achieved their aims. That is not only my opinion, but that of a wide range of people from across many different groups and sectors. Giving evidence last week, Adrian Berry, chair of the Immigration Law Practitioners’ Association, said of the right to rent that,

“there has only been a very modest pilot of that programme in the west midlands. It has not been expanded nationally and here we are, post-general election, with an augmentation of that regime to impose criminal sanctions on landlords and to provide for summary eviction of people who lack a right to rent without protection of the court. We struggle to see what evidence base there is for strengthening a regime that has barely been born.”––[Official Report, Immigration Public Bill Committee, 22 October 2015; c. 106, Q223.]

Landlords and agents are united in opposition to being conscripted into a new second tier of immigration agents. The Committee sat for four eye-opening oral evidence sessions, during which parts of the Bill took a verbal battering. Richard Lambert, who has been mentioned, said:

“We have concerns about placing this kind of responsibility on landlords, who are not trained for it”–-[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 54, Q120.]

His colleague from the Residential Landlords Association, David Smith, said in written evidence that,

“given that, for example, landlords would need to be able to recognise the 404 different types of European identity documents that may be possessed by a tenant…which give holders the right to free movement”,

how can landlords possibly

“be expected to know every legitimate document from every country that proves someone’s immigration status, let alone recognise high-quality fraudulent documents, without proper training and support?”

The RLA has also said:

“Whilst the Residential Landlords Association condemns all acts of racism, the threat of sanctions will inevitably lead many landlords to err on the side of caution and not rent to anyone whose nationality cannot be easily proved.”

All in all, that is hardly a ringing endorsement from those charged with implementing this part of the Minister’s new immigration policy.

Immigration Bill (Seventh sitting)

Debate between Gavin Newlands and Keir Starmer

Thursday 29th October 2015 Public Bill Committees

[Keir Starmer]

Thank you, Mr Owen, and I am guided by that, but in the circumstances, the Minister can see the point that lies behind the new clause. If there is an assurance that that is in any event covered in both circumstances—where the order is simply cancelled and no one gets before the court to confirm it, or it goes before the court and it is confirmed and the court has wide enough jurisdiction to deal with an error—I accept that the new clause is not necessary.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Owen.

As with the previous clause, we seem to be giving immigration officers too much power without the relevant training or proper judicial oversight. When he gave evidence last week, Colin Yeo was asked whether he was concerned about the powers to be given to immigration officers. He said that he was, “Very concerned”, and said of the chief inspector:

“In a couple of reports from March 2014, for example, he found that immigration officers were granted the power to enter business premises without a warrant in two thirds of cases, without justification; he also found unlawful use of power, ineffective management oversight, major variations in local practice and inadequate staff training across all grades—really serious concerns are being raised. Reports on removals and emergency travel documents are, again, very critical of Home Office management of the process and training. The idea that more powers should be given to people who are already exercising them in a very questionable way is somewhat dubious, in my view.”––[Official Report, Immigration Public Bill Committee, 22 October 2015; c. 107, Q224.]

We received the Minister’s letter this morning and are grateful for that, but will he clarify “reasonable grounds” for those in the room who are not lawyers, which is probably quite a few of us? As things stand, the scope of the closure powers are far too wide.

The Bill proposes that an officer has the power to close an employer’s premises if satisfied “on reasonable grounds” that the employer is employing an “illegal worker”, as defined, and if the employer has been required to pay a civil penalty in the past three years, has an outstanding civil penalty or has been convicted of the offence of knowingly employing an illegal worker or a person whom the employer had reasonable cause to believe was not entitled to work. The initial closure may be for up to 48 hours. The immigration officer may then apply to the court for an illegal working compliance order, which can prohibit or restrict access to premises for up to two years.

Why are such measures required when criminal sanctions are available? What will ensure that the measures are not used in an oppressive manner? Yes, we need action against bad employers who flout the rules, but the consequences are potentially terrible if enforcement gets it wrong. There should at least be proper safeguards, such as judicial oversight. What about the effect on innocent workers and their families whose workplaces are shut down? The Government should think again.