National Security Bill (Fourteenth sitting)

Debate between Holly Lynch and Stuart C McDonald

Committee stage
Tuesday 18th October 2022 Public Bill Committees

[Holly Lynch]

My hon. Friend is absolutely right. We thought that that was quite an aspiration at the time, but now it is looking even more unlikely. I just make the point to the Minister that that needs consideration to make sure we do not lose the definitions, or something more substantial under Government amendment 9.

Government new clause 15 defines “political influence activity” for the purposes of the new registration scheme. Members will be aware of the Security Service interference alert sent from MI5 to MPs and peers back in January regarding Christine Lee. The alert stated that Lee knowingly engaged in political interference activities on behalf of the United Front Work Department of the Chinese Communist party. The warning read that the UFWD was seeking to covertly interfere in UK politics by establishing links with established and aspiring parliamentarians across the political spectrum and cultivating relationships with influential figures. Can the Minister confirm that such conduct would need to be registered under these new clauses?

Proposed new subsection 3(a) states that

“the conduct of an election or referendum in the United Kingdom”

falls under the criteria of political influence activity. This is a welcome inclusion and reflects the evidence provided to the Committee by several of the expert witnesses we heard from at the start, which feels like a lifetime ago—it was certainly four Chancellors ago! One of the expert witnesses was former deputy national security adviser Paddy McGuinness. He stated,

“Vladimir Putin’s intent, which is to have us off balance—is that if the Russians do hack into a political party’s servers and mess about within them, and maybe mess with the data or interfere, or if they play games with a technology platform that people rely on for information and put out information, and we decide as a result that we cannot trust a referendum or an election, they succeed. That is success for them, so I think what really matters in this space is the ability to measure the impact that state activity has on the democratic process we are looking at, and…that there is bright transparency so we know who is doing what.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 24, Q48.]

We welcome the fact that the registration scheme will go some way toward addressing these concerns, but I want to again make the case for new clause 3, because the Minister was not here for that debate. His predecessor gave us a commitment to look further at it. Alongside this new clause, new clause 3 would provide for an annual review on disinformation, with particular consideration of interference in elections. That would help with the transparency and awareness piece that needs to sit alongside the provisions. In a similar spirit, we want to tighten Government new clause 15 with our new clause 29 on the registration of former members of intelligence services, and with new clause 5 on ministerial conduct when meeting with representatives of foreign intelligence services. We will come to those.

I would be grateful for clarity on when we can expect the new clauses to come into effect, as we are hearing that it might be some time. Will we seek to backdate them to capture political influence activity already in motion? I think I heard the Minister say that he could not yet say when the measures would come into effect, and essentially the Government would not be rushed on that matter. I asked the relevant agencies the same question, and the working assumption seems to be that we will not backdate the requirements. I ask the Minister to consider looking at that again. Surely we stand to miss much political influence activity that is already under way—not even necessarily activity that has started and come to an end, but conduct that may have started some time ago. We would create a loophole whereby people could claim, as a cover for failing to register, that the activity predated the introduction of the scheme, whether or not it actually did, and could thus commit an offence under new clause 16.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I do not want to repeat anything the shadow Minister said, but I have a couple of short points. I am supportive of the goal of the political tier, though I am somewhat struggling with the design of the scheme. In debate on new clause 11, I asked questions about how the provisions would apply when intermediaries were used. It would be useful if the Minister could write on that, as I do not think we got an answer to that in his summing-up speech. The same concerns arise here. We have a lot of information to go away and take on board, but I am struggling to understand how these measures will apply in all sorts of situations. Lots of case examples will be essential if we are to get to the bottom of how this is going to work.

A simple example would be a case where an international NGO incorporated in another European country had a sister NGO in the United Kingdom. Both have employees of their own, some here and some in Europe. Both have Members, some here and some in Europe. How do all these provisions and this scheme apply to them if they have a month of action? An international NGO may take part in some direct engagement, so it would have to register that. What if it encourages its sister NGO to do that? What if either of them contact their members? The Minister has reassured us that employees would not have to register anything individually. It is not absolutely clear which part of the Bill makes that clear; it would be useful to know that.

I presume, as well, that members who are urged by an international NGO to email their MPs will not have to register any sort of activity like that. Again, it would be useful to know precisely where that is made clear in the Bill. Although I dare say we would all be quite happy not to have quite so many emails prompted by NGOs, equally, I do not think any of us would want them to have to register their schemes under the Bill. It would really be useful if we could get a handle on how the legislation will apply to these typical sorts of situations.

--- Later in debate ---

[Holly Lynch]

There is an awful lot in this group that is still to be determined in regulations, which is always a shame because it does not allow for the same scrutiny as when we consider everything as a package.

Government new clause 18 creates exemptions to the registration requirements laid out in the previous clauses. There is merit to each of those exemptions, but my concern is that we are creating a grey area, particularly when a person engages in both exempt activity and registrable activity. For example, I note that in subsection (4), we do not require those who support the functioning of a diplomatic mission or consular post to register. However, we know that we have potential weaknesses here following the case of one of our own British embassy security staff, who was arrested and charged in Germany with spying for Russia under the Official Secrets Act 1911; it is good to know that that legislation is not totally out of date. That raises the question: do we go as far as we need to on the networks surrounding the vital work of embassies, and can we ensure that an exemption by role does not automatically exempt activity that we would certainly want to know about?

I have had the opportunity to discuss with officials my mixed views about the complete exemption of family members of a principal person under subsections (5) and (6) of new clause 18. While it is right to create a distinction between those we are interested in and their family members, I worry that if we are explicit about this in legislation, we are presenting them as perfect potential spies to the regimes that their principal family member is associated with, bearing in mind that we are dealing with some fairly unscrupulous hostile states.

In new clause 19, again, we are waiting for a great deal more information to be set out in regulation. Under subsection (3), where there is a material change to any information already registered, the Secretary of State has to be notified within 14 days of the material change’s coming into effect. Why 14 days after? Why not in advance of the material change, as is the case in other clauses—for example, within 10 days of the agreement being made when first registering?

Subsection (6) states that a person commits an offence if

“the information provided to the Secretary of State in relation to the registered arrangement or registered activity is misleading, false or deceptive in a material way.”

To come back to my earlier point, who will be undertaking those investigations? We are presumably creating a whole range of new responsibilities here, so who will lead that work, and will they have the corresponding resources?

Government new clause 20 permits the Secretary of State to give a notice to a person to provide information in connection with arrangements or activities registrable under the registration scheme. Subsection (3) states that the Secretary of State may permit an information notice

“requiring the person to whom it is given to supply the information specified in the notice.”

I have no doubt that information notices will be a powerful tool, but there is still a lot to be specified in the new clause.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East made a good point about oversight. I want to push the Minister on what means the public will have to query or raise concerns about an arrangement. If someone is aware of an arrangement that has either not been registered or not registered in full, what mechanism is there for them to raise that with the Home Office?

One of the examples that we discussed yesterday with officials was if a journalist writes an article that appears to be a blatant sales pitch for a hostile state. It would probably take an information notice to get to the bottom of whether it was commissioned by a hostile state, but how would a member of the public raise such a query? How would an employee of a company who is growing increasingly concerned about the nature of a joint project that they are working on raise those concerns with the Home Office? Currently, the mechanism is lacking from the provisions. I would be grateful to hear how the Minister intends to address that concern.

Government new clause 25 allows the Secretary of State to make regulations in relation to the publication and copying of information provided to the Secretary of State under the registration provisions. What really worries me about the registration scheme is that submissions will be made to the Home Office and they will go into some sort of electronic black hole and never see the light of day. We will not properly assess the arrangements or activities to see whether we are worried about them, and we will not publish them for months because we do not have the right back office resources to do so.

Any MP who has casework with the Home Office on almost any front—from visas to asylum and the national referral mechanism—will have experienced a similar service, despite, I have no doubt, the best efforts of civil servants. Can the Minister confirm that the register will be kept up to date in relative real time, and that it will be published online, which I think is what he said in his opening remarks? Can he also suggest a target turnaround time between registration and publication, which I am sure would be welcome and would set an early standard for what people can expect from the scheme?

[Stuart C. McDonald]

I will briefly emphasise how incredibly broadly and dangerously drafted new clause 20 is. All sorts of organisations will fall within the scope of the provisions; it could be a local business or a UK non-governmental organisation. Unless I am missing something, under the clause they can be asked by the Secretary of State in an information notice for virtually any information that she fancies helping herself to, with virtually no restriction whatsoever.

The new clause does not even require a link to some sort of ongoing investigation. There is no court oversight of the nature of the request, and there is absolutely no mechanism to challenge or appeal against any sort of information notice. If someone has been handed an absurd information notice and they refuse to comply with it, they can end up being prosecuted. As it stands, new clause 20 seems to be incredibly difficult and should be revisited.

National Security Bill (Thirteenth sitting)

Debate between Holly Lynch and Stuart C McDonald

Committee stage
Tuesday 18th October 2022 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

It is always a pleasure to serve under your chairmanship, Mr Gray. I also welcome hon. Members back to the final day of the Committee. We welcome new schedules 1, 2 and 3, and hope that they will reflect the complex and evolving nature of state threats, and the significant technical and financial resources that provide the capability for sustained hostile activity.

For too long, our police and security services have had to use blunted tools in this regard, not designed to address adequately the challenges posed by modern day espionage. We are grateful to Counter Terrorism Policing for submitting written evidence to the Committee, and making its support for the new schedules 1, 2 and 3 very clear. Frankly, the Met provided far more in its written evidence on the rationale of these provisions than the explanatory notes accompanying the new schedules from the Government—a point made by my right hon. Friend the Member for North Durham.

The fairly non-existent explanatory notes are a constant challenge from this part of the Bill onwards, affecting later amendments, which is disappointing for all hon. Members trying to follow the detail closely. As the Minister said, Assistant Commissioner Matt Jukes said in his written evidence to the Committee:

“We have requested financial investigation powers to support our investigations in this space. To this end we have articulated a clear requirement to emulate various investigatory powers within the Terrorism Act which centre on financial investigations as well as examination of material which can be used for investigatory purposes. We are assured that these will be introduced by way of a forthcoming amendment. If so, this will further ensure that we have the tools required to successfully investigate and disrupt state threat activity.”

We welcome the new schedules, and now that the long overdue Economic Crime and Corporate Transparency Bill has been published, no doubt the new schedules are intended to work alongside some of the part 5 provisions in that legislation. Currently, terrorism disclosure orders can be made under schedule 5A of the Terrorism Act 2000. Counter Terrorism Policing has called for an explicit disclosure order for state threats, stating that it will help investigators benefit from a streamlined process, whereby one order is available to cover separate requests for information from multiple organisations, without the need to return to court. I want to push the Minister on oversight. I have made the case for an independent reviewer of all the new measures in the Bill. As those will be investigatory powers, will the Minister confirm that the investigatory powers commissioner will have responsibility for overseeing their use?

Turning to paragraphs 7 and 17 of new schedule 1, paragraph 7 outlines offences in relation to disclosure orders. Sub-paragraph (3) states that a person commits an offence if

“in purported compliance with a requirement imposed under a disclosure order, the person—

(a) makes a statement which the person knows to be false or misleading in a material particular, or

(b) recklessly makes a statement which is false or misleading in a material particular.”

By comparison, paragraph 17(1) states that a

“statement made by a person in response to a requirement imposed under a disclosure order may not be used in evidence against that person in criminal proceedings.”

I cannot quite square that off. I am keen to better understand why the information provided by a person under a disclosure order could not be used as evidence in criminal proceedings.

Before concluding, as I have said before, I accept that it is standard to refer to a police officer as “constable” in legislation, despite the fact that in doing so we are referring to police officers of any rank, not the rank of constable, which seems problematic. New schedule 1 is a prime example of where it gets messy. Paragraph 1(5) says that an appropriate officer for the purposes of these powers is either a constable or a National Crime Agency officer. It is not until paragraph 2(10) that the provision states that an appropriate officer must be a senior officer or authorised by a senior officer. Not until paragraph 9(4) does it confirm that “senior officer” must be a superintendent or above. Would it not be clearer to be explicit about the stipulated rank required to exercise certain powers at the earliest opportunity, instead of allowing for the ambiguity of the word “constable”? The last thing any of us want is for any ambiguity to be exploited by defence lawyers in the courts.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Gray. My apologies for missing the previous Committee sitting. I can now welcome the Minister to his place at this very interesting and challenging time. I do not doubt that we wish him well. We have a tricky job in Committee today. We are looking at fairly substantial new schedules and new clauses for the first time. It would be helpful to hear what the Minister has to say about them. On the whole, we are supportive of most of what we will be discussing today, but we will have to take away what the Minister says and consider it further. Ultimately, we reserve our position until the Bill reaches its final stages in the House of Commons.

The Minister has outlined a number of case studies and scenarios to illustrate how this new clause and new schedule would work. More of that information would be really helpful to understand what the Government are getting at. With that proviso in mind, we would say that new schedule 1 seems to provide the necessary powers to investigate foreign threat activity. The Minister referenced the fact that this was based on other provisions, which is interesting to know, but I two have two or three questions about precisely what statute and provisions these measures are modelled on. Some of them seem fairly unusual, so it would be useful to know where else they can be found in order to analyse how they work there.

The Minister provided some examples of how the new clause and schedule would work. The first question is how is it to be decided that property is

“likely to be used for the purposes of foreign power threat activity”

or proceeds of that? Is that essential analysis to be based on the nature of the property, or is more required, such as intelligence about who may have had ownership or possession or some other link to it? Again, the illustrations which the Minister gave during his introductory speech may answer that question. I will have to go away and have a think about that, but the more illustrations we can have, the better. Otherwise, his scheme seems pretty reasonable.

I have a couple of questions about some of the supplementary provisions. Is there not an issue with being able to ask questions that could lead to self-incriminating answers? I think the shadow Minister almost had the opposite concern from me. She asked why that would be protected from use in a criminal trial. My question is about whether the safeguard goes far enough. The Government are basically saying that someone can be asked a question that may lead to a self-incriminating answer. There are protections elsewhere in paragraphs 8 and 17 of the new schedule about the non-use of those statements, but is this formulation used in other legislation? It would be useful to have a specific reference to a provision in another Act of Parliament.

In a similar vein, what is the thinking around ensuring that disclosure orders have effect, despite restrictions in another enactment? That seems a very broad provision. Again, is that found elsewhere in another piece of legislation? What other Acts of Parliament are going to be impacted or undermined by this? Finally, part 2 includes the provisions in relation to Scotland and how these would be put into practice. I wanted to check that there has been consultation with the Scottish Government. The broad thrust of new schedule 1 seems fine, but there are one or two questions for the Minister.

--- Later in debate ---

[Holly Lynch]

New clause 9 and new schedule 2 establish customer information orders, which authorise the police and NCA officers to obtain customer information from financial institutions. In its written submission to the Committee, for which we are all grateful, Counter Terrorism Policing has welcomed the provision, stating that it will

“enable investigators to identify accounts in relation to state threat investigations, or where an individual is using a covert account under a false identity to receive funds to use for the purposes of state threats.”

As the Minister outlined, the tool has been available to law enforcement for terrorism investigations thanks to schedule 6 to the Terrorism Act 2000, and it has been available for criminal investigations through the Proceeds of Crime Act. However, according to Counter Terrorism Policing, it has not been possible to use either Act in relation to state threats investigations, so we welcome the provision. It prompts the question of why we have not addressed this issue sooner.

Subsection (2) states that the judge may grant the order if they are satisfied that

“the order is sought for the purposes of an investigation into foreign power activity”,

and that

“the order will enhance the effectiveness of the investigation.”

We have spoken a lot about the value of an independent reviewer, and I welcome the substance of the Minister’s comments. It is worth keeping under review the threshold of a judge being satisfied that the order is sought for the purposes of investigation into foreign power activity. We cannot use these orders without good cause, but if we need them to be able to find evidence of foreign power activity, will investigators be able to satisfy a judge prior to that? It will be interesting to see how many applications are granted and rejected once we start to work with the orders. Aside from those points, I am happy with new schedule 2.

[Stuart C. McDonald]

I will make a couple of brief points. The broad thrust of the new schedule and the intention behind it seem absolutely fine, but I am interested in the tests that must be satisfied before an order is made. Under the previous schedule on disclosure orders, the judge has to be satisfied that there are reasonable grounds for suspicion, that there is substantial value in the information gained under the order and that the order would be in the public interest.

In contrast, here in new schedule 2, the judge has to be satisfied only that the order is sought for the purposes of an investigation and that it will enhance the effectiveness of that investigation. That seems a pretty low bar to allowing this pretty invasive procedure to be gone through. Why that choice of language? I guess it is modelled on the provisions that have been mentioned. I have probably not been as diligent as the shadow Minister has in doing my homework and tracking through the previous bits of legislation, and I will now do that. The information gained under these orders could be pretty intrusive, so we need to ensure we are not giving carte blanche to all sorts of intrusive investigations. I am a little bit concerned about the low level of test, compared with the test for disclosure orders.

My second, brief point is that paragraph 4 of the new schedule suggests that the person whose records are about to be trawled through can seek to vary or discharge the order. It is not clear to me how they would go about doing that, given that I suspect most orders will be made without any notice, and they can even be made by a judge in chambers. What assurance can we have that people will be able to challenge this potentially intrusive investigation?

National Security Bill (Seventh sitting)

Debate between Holly Lynch and Stuart C McDonald

Committee stage
Tuesday 19th July 2022 Public Bill Committees

[Stuart C. McDonald]

Very educational; I have learned something new. I am grateful to the Minister for his explanation, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 ordered to stand part of the Bill.

Clause 31

Power to exclude the public from proceedings

Question proposed, That the clause stand part of the Bill.

[Holly Lynch]

I wish only to add that I imagine we would all agree that transparency in this legislative area should be the default, especially given the need to raise awareness of the challenges we face as a country and the individual responsibilities that we all share in combating those challenges with the arrival of these new offences. That said, it is of course right that clause 31 provides power to the court to exclude the public from any part of proceedings or offences under part 1, or for proceedings relating to the aggravation of sentencing, or other offences where the foreign power condition applies, should the evidence being considered deem it to be in the interests of national security to do so.

--- Later in debate ---

[Stuart C. McDonald]

The clause allows part 2 notices, or STPIMs, to be extended by a year. Not only that but, as drafted, the clause allows for up to four further extensions, thus allowing an STPIM to be in place for five years, even if there has been no new foreign power threat activity.

As we know, these measures can place really significant restrictions on people’s liberty. The ability to extend TPIMs was controversial and only happened after they had been in place for a significant period. The views of the previous Independent Reviewer of Terrorism Legislation, Lord Carlile QC, have been summarised as:

“The TPIM Act 2011 was a balance between on the one hand enabling administrative controls to be imposed outside the criminal process for a significant period of time, and on the other hand ensuring that individuals were not controlled indefinitely on the basis of an assessment that they had once engaged in terrorism-related activity, unless there was evidence that they have done some further act.”

Indeed, the stated purpose of TPIMs when introduced by the 2011 Act was that they were

“targeted, temporary measures and not to be used ‘simply as a means of parking difficult cases indefinitely’”.

The case for and against lifting the two-year cap was considered in detail by another independent reviewer, Lord Anderson, in his report, “Terrorism Prevention and Investigation Measures in 2012”. He observed that it was tempting to wish for longer in the most serious cases, noting:

“The allegations against some subjects are at the highest end of seriousness”.

However, he concluded that the two-year limit was an “acceptable compromise” because, in summary,

“even 2 years was a serious length of time in the life of an individual, and TPIMs should not be allowed to become a shadow alternative to criminal prosecution with their lesser standard of proof…with the possibility of no serious thought being given to how the measures might come to an end.”

It is easy for the Government to say, “Let’s mirror the current TPIM time limit as it is now,” but why should we do that? Those time limits were extended to five years only after about a decade of use of TPIMs. Starting with a five-year time limit appears to be jumping off at the deep end. If we want to mirror TPIMs, we should start off with a much shorter time limit, as happened with TPIMs, and then if, over time, evidence shows that a longer limit is required, we can make that change. But it should be based on evidence about how the orders are operating in practice and not just on saying, “Let’s cut and paste the existing position with TPIMs.”

[Holly Lynch]

I thank the hon. Member for Cumbernauld, Kilsyth and—

National Security Bill (Eighth sitting)

Debate between Holly Lynch and Stuart C McDonald

Committee stage & Committee Debate - 8th sitting
Tuesday 19th July 2022 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

Clause 35 sets out the function and powers of the court on the application by the Secretary of State to obtain permission from the court before imposing measures on an individual, as required under condition E in clause 33(5).

Subsection (4) provides that the court may consider the Secretary of State’s application without the individual on whom the measures would be imposed being aware of the application or having the opportunity to make representations. That feels to be at odds with the rest of the justice system; however, given the nature of the risks we are attempting to manage and supress with the measures, the clarity in the explanatory note that this is

“to avoid a risk of the individual absconding”

is a sobering reality.

We welcome subsections (7), (8) and (9), which provide powers for the court in various scenarios. Clear tests are set out for the courts in subsection (3)(a), under which the court has to determine whether the Secretary of State’s decisions are “obviously flawed”. That standard is also used in schedule 5, under clause 36.

I sought a legal opinion about “obviously flawed” and, although there is a similar test in schedule 2 of the Counter-Terrorism and Security Act 2015, the sense from lawyers was that “obviously flawed” sets an unusual standard—for example, decision making might be found to be flawed only upon scrutiny, but not obviously so. Will the Minister clarify the standard? Is he in a position to confirm how many times the Secretary of State’s decisions have been deemed to be “obviously flawed”, so that we can consider any learning from that?

Clauses 37 and 38 provide for a directions hearing and a review hearing. Under clause 37(2), on giving the Secretary of State permission to impose measures the court must give directions for a directions hearing. According to subsection (3), those directions must not be served on the individual in a case in which permission has been granted until the part 2 notice has been served.

We will come to the importance of the ongoing review in clauses 39 and 40, which I expect will feed into the processes set out in clause 37. I am reassured that the operability of the whole of part 2 will be considered by an independent reviewer, as outlined in clause 49, in addition to the review hearing and the ongoing assessment of individual circumstances.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

As the shadow Minister says, these clauses put in place some important oversight and a scrutiny mechanism in relation to state threats prevention and investigation measures. On the whole, the oversight and scrutiny mechanisms appear to work, but I have some questions to put to the Minister for clarification.

First, to pick up on a point made by the shadow Minister, why is it the function of the court to determine whether the Secretary of State’s decision was “obviously flawed”? I was slightly surprised by that standard and not familiar with it at all. What is the difference between an “obviously flawed” decision and one that is merely “flawed”? Is not the simple requirement in clause 35(6) to apply judicial review principles in itself sufficient to let the court know what it is supposed to do?

Secondly, clause 35(4) allows the court to have its hearing on the Secretary of State’s application “in the absence of” the relevant individual and even without that person being notified of that happening. I can well understand that there will be some reasons why that may appear to be necessary, but the Bill does not provide any guidance at all to the courts as to when it would or would not be appropriate to proceed in that way. That struck me as quite a strange way to do things. It just says that the court may consider the application

“in the absence of the individual”,

without providing any guidance as to when that would be appropriate and the reasons the court should have for doing that.

That question is even more pertinent when the court hears an urgent case under schedule 5, which says that the Secretary of State must serve the part 2 notice on the individual and then, immediately after, refer the measures to the court. Given that the part 2 notice has been served on the individual and is enforced because of urgency, it seems strange that there would be justification for the court to consider the reference under the part 2 notice without the individual being present or even aware of the hearing. The individual will have been served the notice, so why does the hearing then need to proceed without them even being aware of it? Why would that power be necessary?

Finally, on the review hearing, clause 38(3) gives the court a broad power to simply

“discontinue the review hearing in any other circumstances.”

There is not much in the Bill that sets out why the court might want to do that and what factors would prompt a court to behave in that way. When is it envisaged that that would be necessary and why is there no more detail about that in the Bill?

[The Minister for Security (Stephen McPartland)]

I will respond to the questions as I go through my speech. I am always happy to take interventions.

Clause 35 mirrors the terrorism prevention and investigation measures and sets out the function and powers of the court on an application by the Secretary of State to obtain permission before imposing measures on an individual, as required under condition E of clause 33. The clause means that the court must apply judicial review principles and consider

“whether the relevant decisions of the Secretary of State are obviously flawed”.

The hon. Member for Halifax asked how many times decisions have been considered “obviously flawed” by the court and the answer is never; hopefully that gives some reassurance.

The Secretary of State will put the draft part 2 notice before the court. If the court considers that the decisions that conditions A, B or C are met were obviously flawed, it may not give permission to impose the notice. If the court considers that the decisions relating to condition D were obviously flawed, the court can give directions to the Secretary of State on the specific measures while otherwise permitting the notice to be imposed—again, there are more safeguards.

The court may assess the Secretary of State’s application without the potential subject of the measures being aware. That is important because, as the hon. Member for Halifax made clear, it prevents the individual from receiving notice that the measure could be imposed on them and obviously stops them running away and absconding.

Once the measures are imposed, the subject will of course have the right to an automatic full review by the High Court where the individual will be present and have legal representation. For any closed proceedings in the review hearing, there will be a special advocate to act in the subject’s interest. I have checked that the special advocate cost will be met by the Home Office for both parties. The review hearing is where the court will apply a high level of scrutiny to the Secretary of State’s decisions. The Government feel it is right that, rather than at the initial stage of obtaining court permission, the full scrutiny takes place at the second stage of court review, after the individual has had an opportunity to seek legal advice. We will come on to that in more detail.

Clause 36 gives effect to schedule 5, which makes provision for urgent cases in which the Secretary of State may, under clause 33(5)(b), impose measures on an individual without first obtaining the permission of the court. This provision has long-standing precedents: there are similar provisions relating to TPIMs in the Terrorism Prevention and Investigation Measures Act 2011 and to control orders in the Prevention of Terrorism Act 2005.

This urgent and exceptional power has never been used since the TPIMs regime was introduced. In all cases, it has been possible to obtain court permission in advance, and that will always be the preferred option. We do not expect the regime in this Bill to operate any differently. We have tried to put in place safeguards throughout the whole Bill. As I have said, the STPIMS are a last resort and it is all about trying to find other ways to prosecute.

As we know, the power will be used in rare and exceptional cases when there is an operational need to avoid any delay in taking measures that are considered necessary to protect the UK from a foreign power, threat or activity. We will come to oversight in later deliberations on this part of the Bill. To help the hon. Member for Halifax, I will say that I absolutely expect the person appointed to review the operation of this part to comment on the appropriateness of any use of the urgency process. I hope that provides reassurance.

Clause 37 ensures that there is timely and clear progress towards a full High Court review. The basis of the clause is, in essence, to ensure that in each case, when measures are imposed, a prompt and clear timeline is put in place, with the steps that need to be taken towards the subsequent full High Court review. The directions hearing must take place within seven days of a part 2 notice being served on the individual or, in an urgent case, within seven days of the notice being confirmed. Directions must then be set for a full review hearing to take place as soon as possible. The proceedings leading up to the full review hearing will be agreed by all parties.

The clause is not about the court considering the restrictions or the nature of the evidence; it is there more to ensure the speedy process of the approach to the full hearing. It is important that the hearing takes place speedily within that seven-day period, so that there is a direction of travel to ensure that subsequent oversight is well prescribed.

On clause 38, the involvement of the court is an important safeguard for the rights of the individual subject to the measures, and full judicial oversight of the process of imposing measures is key. As I alluded to earlier, clause 38 provides for a full High Court review to take place automatically in every single case in which state threat prevention and investigation measures are imposed. This will happen automatically, with no need for the individual to initiate the proceedings, in each case in which measures are imposed, subject only to the provisions that allow the discontinuance of proceedings included in subsection (3)—for example, if the person does not want the review to take place. Only the individual or court may make the decision to discontinue the proceedings, and the individual will always be able to make representations in respect of a proposal to discontinue.

At the full review, the function of the court is to review the decisions of the Secretary of State that conditions A, B, C and D were met at the time she made the decision and continue to be met at the time of the review. To remind the Committee, the decisions are that they reasonably believe the individual is or has been involved in foreign power threat activity; that some or all of that activity is new foreign power threat activity; that they reasonably consider that the imposition of STPIMs is necessary to protect the UK from the risk of action that constitutes foreign power threat activity; and finally, that they reasonably consider that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in foreign power threat activity, for the specified measures to be imposed on the individual.

Clause 38 requires the courts to apply the principles that are applicable on an application for judicial review. As Committee members will be aware, the courts take the view that judicial review is a flexible tool that allows for differing degrees of intensity of scrutiny, depending on the circumstances and the impact of the decision in question on the individual concerned.

As well as setting out the functions of the court in a review, clause 38 sets out the powers available to the court, which may overturn the Secretary of State’s decisions in their entirety if it finds that they were unlawful. If the court finds that it was necessary to impose measures but one or more of the measures imposed was unlawful, the Bill is clear that the court may quash the particular measures or direct that they be varied, while also directing that the rest of the notice comes into force. That will provide a balance between being able to protect the UK and ensuring that the measures imposed represent the minimum necessary interference with the rights of the individual.

In addition to the function and powers of the court, clause 38 also makes provision for circumstances in which the review may be discontinued. The court must discontinue the review if the individual requests it—for example, if they do not wish to challenge the case against them. However, as a further safeguard, the Bill specifies that before the court may discontinue proceedings under the power the individual subject to the measures and the Secretary of State must have the opportunity to make representations.

It is imperative that the correct checks and balances are in place to govern the operation of STPIMs, and the Government consider that clause 38, together with other provisions in the Bill that provide the requirement for court permission before the imposition of measures and subsequent rights of appeal, will deliver rigorous end-to-end judicial oversight of the decisions taken by the Secretary of State in the exercise of her powers. The continuous involvement of the court will provide a key, important safeguard for the rights of the individual subject to the measures.

In summary, clauses 35, 36, 37 and 38 are exceptionally important for the Bill and I urge the Committee to support them.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Clause 36 ordered to stand part of the Bill.

Schedule 5 agreed to.

Clauses 37 and 38 ordered to stand part of the Bill.

Clause 39

Criminal investigations into foreign power threat activity

Question proposed, That the clause stand part of the Bill.

National Security Bill (Fifth sitting)

Debate between Holly Lynch and Stuart C McDonald

Committee stage
Thursday 14th July 2022 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to see you in the Chair, Ms Ali. I very much welcome your early judgment call on jacket wearing; we are all eternally grateful.

Clause 16, as the Minister outlined, inserts new section 69A into the sentencing code to provide a new aggravating factor for sentencing when the foreign power condition is met in relation to an offence. The court will make its determination on the basis of the usual information before it for the purposes of sentencing, which may include the evidence heard at trial or evidence heard at a Newton hearing following a guilty plea. If the court determines that the foreign power condition is met in relation to conduct that constitutes the offence, it must treat that as an aggravating factor when sentencing the offender and must state in open court that the offence is so aggravated.

We are introducing a measure that will mean that, if an individual is found guilty of an offence that is not outlined in the Bill, but the foreign power condition can be proven, a judge may aggravate their sentence. On Second Reading, the Home Secretary provided a serious recent example to highlight why she felt the measure was needed, and we very much recognise the merit in that.

However, I note that a sentence would be aggravated only up to the maximum available for the original offence. I have sought a legal opinion about whether there is a precedent for aggravating an offence beyond the maximum sentence where deemed appropriate. Although the judge ultimately has discretion to sentence beyond the sentencing guidelines, it is far from common practice and will be subject to appeal.

I want to work through the application of the measure. For example, if someone acting on behalf of a foreign state were to commit a section 18 assault against someone who was going to speak at an event against that Government as a means of preventing them from honouring that commitment, it might be possible to prosecute them under some of the new offences in the Bill. If that is not the case and they are prosecuted for the section 18 assault, the foreign power condition having been met and the sentence aggravated, it is still subject only to the maximum sentence for a section 18 assault. I feel that the weight of the very serious sentences in this Bill will not be felt by the perpetrator in that instance.

Will the Minister outline why we are not able to push the sentences under clauses 16, 17 and 18 further? Will he comment on whether the usual so-called early plea discount will be ruled out in cases where the foreign power condition is met?

Clause 17 introduces the measure for offences in Northern Ireland, and clause 18 makes a corresponding provision to the one in clause 16 for sentences to be aggravated where the foreign power condition is met for offences in Scotland. Clause 19 amends the Armed Forces Act 2006 to make corresponding provision for service courts considering the seriousness of a serious offence for the purposes of sentencing. The case for tougher sentencing is even stronger in those circumstances, given that people serving in the armed forces and acting on behalf of our nation potentially have a level of access to the UK security apparatus that others do not have. We recognise the seriousness and necessity of these measures, and fully support them, but will the Minister address the points I have raised?

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Ms Ali. I have one very short point. I am very supportive of these measures. Clause 18, as we have heard, relates to Scotland. As I understand it, it operates and is drafted similarly to other aggravations in Scottish criminal law. I just want to be absolutely sure that the Government are collaborating closely with the Scottish Government to ensure it fits with the schemes in Scottish criminal law. What discussions has he had with compatriots up there?

--- Later in debate ---

[Holly Lynch]

I thank the Minister for his explanation. Clause 20 and schedule 2 deal with the power of entry, search and seizure in relation to the new offences created by part 1 of the Bill. There are a number of powers here that seem largely appropriate and proportionate for the reasons outlined by the Minister.

However, I will press the Minister on paragraphs 3 and 4 of part 1 in schedule 2, on the production orders relating to confidential material. These provisions set out the conditions that must be met in order for a constable to apply to a judge for a confidential material production order. I was listening carefully to what the Minister said on that. The person specified in that order then has to produce, within a specified period, any material that they have in their possession, custody or control.

The specified period is seven days. The clause says that it is seven days unless it appears to the judge that a different period would be appropriate in the particular circumstances of the application. Why is it seven days? Given the seriousness of some of the offences and the consequences of confidential material being in the hands of someone who should not have it—potentially to the benefit of a hostile state—that feels like quite a long period for such material to be able to be used against us. I would be grateful if the Minister explained the rationale for specifying the period as seven days.

My second point is that there is a lot going on in schedule 2, much as there is in schedule 3. While there are provisions for an ongoing review of the powers created by part 2 of the Bill, at clause 49, I think that part 1 should be reviewed by an independent reviewer to safeguard against any unintended consequences once the legislation is enacted. That is why the Opposition have tabled new clause 2; we will make the case for that provision when we reach the appropriate point.

[Stuart C. McDonald]

I broadly welcome the provisions. As the hon. Member for Halifax said, they are extensive powers, so I am very sympathetic to her suggestion that they should be subject to review in the same way that other parts of the Bill are. I appreciate that those extensive powers are modelled on the equivalent provisions in terrorism legislation. I have no problem with those provisions being borrowed from such legislation, but they need to be justified in their own context. The Minister has usefully set out why exactly they are needed here. The SNP is broadly supportive of that.

I have a couple of questions. I am not familiar with the idea of allowing police officers or sheriffs to order a person to explain material that is seized. I see that is borrowed from terrorism legislation. However, I wonder how that works alongside the right not to require someone to self-incriminate, particularly when there is an emergency power for police officers to require an explanation—if that is not complied with, it can be a criminal offence. I am interested in how that works; I assume it works in the context of the terrorism legislation, but it would be interesting to hear a bit more about that. I am also interested in the idea of what a “great emergency” amounts to. That is not a concept that I have seen before. Are we talking about threat to life and limb, essentially? I am not sure about that.

My only other point is that how the provisions on search and seizure apply depends largely on how the foreign power condition operates. I said at the outset of our debates on clause 1 that I have some difficulties with how broadly some aspects of the term were drawn. For example, the non-governmental organisations I referred to during that debate and journalists working for a foreign state broadcaster can be brought within the foreign power condition, meaning that they are subject to the search-and-seizure powers. We can probably come back to that in the context of clause 1, but it is relevant to our discussion. It could be those people who are searched or who have documents seized under the schedule, including confidential journalistic material.

Those are a couple of points to emphasise, but we broadly support what is in the clause and the schedule.

--- Later in debate ---

[Holly Lynch]

The clause provides a power of arrest without warrant and includes provisions about subsequent detention. The explanatory note explains that the provisions are modelled on those in section 41 of and schedule 7 to the Terrorism Act 2000, as the Minister said, which give police officers the power to arrest persons suspected of terrorism-related offences without a warrant.

We recognise the importance of granting law enforcement officers this power. The sense within policing is that it will provide the police a window in which to work, in order to undertake the necessary analysis and investigative work needed to confirm if an act of espionage or sabotage has been committed. Once a more substantive offence is established, the person in question must then be arrested for that offence, which would trigger the further relevant detention powers.

I have a query from within law enforcement, which relates to subsection (9). If the warrant for further detention is refused, a person can still be detained in hospital or if they are removed to hospital because they needed medical treatment. I am not aware that any such provision to continue to detain someone on the basis they need medical treatment when the application has been refused exists within any other detention powers. I would be grateful if the Minister could clarify that point.

[Stuart C. McDonald]

The provisions are for very significant powers of arrest and people can remain under arrest for a quite striking period of time, so we should be cautious. The key issue for me is subsection (1), because arrest without a warrant is justified not by the suspicion of a specific event set out in the Bill, but by involvement in foreign power threat activity. Will the Minister say a little more about why that decision has been made?

We will obviously get to clause 26 and the definition of “foreign power threat activity” soon, but it is a much broader concept than being under suspicion of one of the particular offences in the Bill. It could be somebody providing assistance or support to individuals, or known to be involved in certain types of conduct. Why have these powers of arrest without warrant been drafted differently compared with the powers on search and seizure? The search-and-seizure powers relate to specific offences under the Bill. The power of arrest without warrant applies to a much broader category of people. Given the significance of the powers, and how long people can be detained for, it is important that we push the Minister a little bit further on why the Bill has been drafted in this way.

[Stephen McPartland]

I am grateful for the contributions and the general support. On safeguards, the powers mirror the powers in the Terrorism Act 2000, which are very important and have proven to be very disruptive, as well as useful and effective in keeping the country safe. It is critical that the police have strong powers of arrest and I outlined the reasons for that. Currently, a person can be detained for 24 hours. These provisions allow a detention for 48 hours, which would have to be reviewed periodically after 12 hours, so there are safeguards. The provisions mirror the 2000 Act, which has proven very effective and very disruptive.

On the question asked by the hon. Member for Halifax, the detention clock stops if the individual goes to hospital. If a warrant is refused, they can only be detained for 48 hours. These may appear to be very significant powers, but a person is not going to be held for a huge number of days.

Question put and agreed to.

Clause 21 accordingly ordered to stand part of the Bill.

Schedule 3

Detention Under Section 21

--- Later in debate ---

[Holly Lynch]

Having heard the Minister’s detailed explanation for this group of Government amendments, I will come back to the issues in the slightly wider discussion on schedule 3, which is the next proceeding.

[Stuart C. McDonald]

I do not need to say much more. The Minister understands from my intervention that I have some reservations about the lifelong retention of the materials. I shall give that further thought. Other parts of the relevant amendment are perfectly sensible, so I will not oppose the amendment at this stage. Further thought should be given to it, though. The Government have explained a number of times how they are copying what is in the counter-terrorism legislation, which is fine and understandable but does not in of it itself justify the measures in this sphere of behaviour. I will look at the matter again. I want to put on the record that I am slightly uneasy about that type of provision.

[Stephen McPartland]

I am grateful for the support for the amendments.

Amendment 13 agreed to.

Amendments made: 14, in schedule 3, page 82, line 22, leave out “or 42”.

This amendment removes reference to paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 from a list of provisions under which fingerprints, data and other samples may be taken. Reference to paragraph 42 is not needed because its contents are already covered by paragraph (e).

Amendment 15, in schedule 3, page 82, line 26, leave out sub-paragraph (2) and insert—

“(2) Paragraph 19 material may be retained indefinitely if—

(a) the person has previously been convicted—

(i) of a recordable offence (other than a single exempt conviction), or

(ii) in Scotland, of an offence which is punishable by imprisonment, or

(b) the person is so convicted before the end of the period within which the material may be retained by virtue of this paragraph.

(2A) In sub-paragraph (2)—

(a) the reference to a recordable offence includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute—

(i) a recordable offence under the law of England and Wales if done there, or

(ii) a recordable offence under the law of Northern Ireland if done there,

(and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted);

(b) the reference to an offence in Scotland which is punishable by imprisonment includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute an offence under the law of Scotland which is punishable by imprisonment if done there (and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted).

(2B) Paragraph 19 material may be retained until the end of the retention period specified in sub-paragraph (3) if—

(a) the person has no previous convictions, or

(b) the person has only one exempt conviction.”

See Amendment 13.

Amendment 16, in schedule 3, page 83, line 37, leave out “and Northern Ireland”.

This amendment and Amendment 17 clarify the identity of the specified chief officer of police in Northern Ireland.

Amendment 17, in schedule 3, page 84, line 5, at end insert “, and

(c) the Chief Constable of the Police Service of Northern Ireland, where—

(i) the person from whom the material was taken resides in Northern Ireland, or

(ii) the chief constable believes that the person is in, or is intending to come to, Northern Ireland.”

See Amendment 16.

Amendment 18 in schedule 3, page 84, line 5, at end insert—

“20A (1) For the purposes of paragraph 20, a person is to be treated as having been convicted of an offence if—

(a) in relation to a recordable offence in England and Wales or Northern Ireland—

(i) the person has been given a caution or youth caution in respect of the offence which, at the time of the caution, the person has admitted,

(ii) the person has been found not guilty of the offence by reason of insanity, or

(iii) the person has been found to be under a disability and to have done the act charged in respect of the offence,

(b) the person, in relation to an offence in Scotland punishable by imprisonment, has accepted or has been deemed to accept—

(i) a conditional offer under section 302 of the Criminal Procedure (Scotland) Act 1995,

(ii) a compensation offer under section 302A of that Act,

(iii) a combined offer under section 302B of that Act, or

(iv) a work offer under section 303ZA of that Act,

(c) the person, in relation to an offence in Scotland punishable by imprisonment, has been acquitted on account of the person’s insanity at the time of the offence or (as the case may be) by virtue of section 51A of the Criminal Procedure (Scotland) Act 1995,

(d) a finding in respect of the person has been made under section 55(2) of the Criminal Procedure (Scotland) Act 1995 in relation to an offence in Scotland punishable by imprisonment,

(e) the person, having been given a fixed penalty notice under section 129(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 in connection with an offence in Scotland punishable by imprisonment, has paid—

(i) the fixed penalty, or

(ii) (as the case may be) the sum which the person is liable to pay by virtue of section 131(5) of that Act, or

(f) the person, in relation to an offence in Scotland punishable by imprisonment, has been discharged absolutely by order under section 246(3) of the Criminal Procedure (Scotland) Act 1995.

(2) Paragraph 20 and this paragraph, so far as they relate to persons convicted of an offence, have effect despite anything in the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27)).

(3) But a person is not to be treated as having been convicted of an offence if that conviction is a disregarded conviction or caution by virtue of section 92 or 101A of the Protection of Freedoms Act 2012.

(4) For the purposes of paragraph 20—

(a) a person has no previous convictions if the person has not previously been convicted—

(i) in England and Wales or Northern Ireland of a recordable offence, or

(ii) in Scotland of an offence which is punishable by imprisonment, and

(b) if the person has previously been convicted of a recordable offence in England and Wales or Northern Ireland, the conviction is exempt if it is in respect of a recordable offence, other than a qualifying offence, committed when the person was under 18 years of age.

(5) In sub-paragraph (4) ‘qualifying offence’—

(a) in relation to a conviction in respect of a recordable offence committed in England and Wales, has the meaning given by section 65A of the Police and Criminal Evidence Act 1984, and

(b) in relation to a conviction in respect of a recordable offence committed in Northern Ireland, has the meaning given by Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).

(6) For the purposes of sub-paragraph (4)—

(a) a person is to be treated as having previously been convicted in England and Wales of a recordable offence if—

(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii) the act constituting the offence would constitute a recordable offence under the law of England and Wales if done there (whether or not it constituted such an offence when the person was convicted);

(b) a person is to be treated as having previously been convicted in Northern Ireland of a recordable offence if—

(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii) the act constituting the offence would constitute a recordable offence under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted);

(c) a person is to be treated as having previously been convicted in Scotland of an offence which is punishable by imprisonment if—

(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii) the act constituting the offence would constitute an offence punishable by imprisonment under the law of Scotland if done there (whether or not it constituted such an offence when the person was convicted);

(d) the reference in sub-paragraph (4)(b) to a qualifying offence includes a reference to an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute a qualifying offence under the law of England and Wales if done there or (as the case may be) under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted).

(7) For the purposes of paragraph 20 and this paragraph—

(a) ‘offence’, in relation to any country or territory outside the United Kingdom, includes an act punishable under the law of that country or territory, however it is described;

(b) a person has in particular been convicted of an offence under the law of a country or territory outside the United Kingdom if—

(i) a court exercising jurisdiction under the law of that country or territory has made in respect of such an offence a finding equivalent to a finding that the person is not guilty by reason of insanity, or

(ii) such a court has made in respect of such an offence a finding equivalent to a finding that the person is under a disability and did the act charged against the person in respect of the offence.

(8) If a person is convicted of more than one offence arising out of a single course of action, those convictions are to be treated as a single conviction for the purposes of calculating under paragraph 20 whether the person has been convicted of only one offence.”

See Amendment 13.

Amendment 19, in schedule 3, page 84, line 21, at end insert—

“(ca) the Chief Constable of the Ministry of Defence Police,

(cb) the Chief Constable of the British Transport Police Force, or”.

This amendment enables the Chief Constables of the Ministry of Defence Police and the British Transport Police Force to make a national security determination in relation to fingerprints, data and other samples.

Amendment 20, in schedule 3, page 89, line 36, leave out paragraphs (j) to (l).

This amendment removes reference to the Royal Navy Police, the Royal Military Police and the Royal Air Force Police from the definition of “police force”. Those forces should not be included in that definition because members of those forces do not have the power to obtain fingerprints, data or other samples under Schedule 3.

Amendment 21, in schedule 3, page 90, leave out lines 1 to 3.

This amendment removes reference to the tri-service serious crime unit from the definition of “police force”. Members of that unit should not be included in that definition because they do not have the power to obtain fingerprints, data or other samples under Schedule 3.

Amendment 22, in schedule 3, page 90, line 3, at end insert—

“‘recordable offence’ —

(a) in relation to a conviction in England and Wales, has the meaning given by section 118(1) of the Police and Criminal Evidence Act 1984, and

(b) in relation to a conviction in Northern Ireland, has the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));”

See Amendment 13.

Amendment 23, in schedule 3, page 90, leave out lines 6 to 24 and insert—

“‘responsible chief officer of police’ means—

(a) in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police, or a DNA profile derived from a sample so taken, the Chief Constable of the Ministry of Defence Police;

(b) in relation to fingerprints or samples taken by a constable of the British Transport Police Force, or a DNA profile derived from a sample so taken, the Chief Constable of the British Transport Police Force;

(c) otherwise—

(i) in relation to fingerprints or samples taken in England or Wales, or a DNA profile derived from a sample so taken, the chief officer of police for the relevant police area;

(ii) in relation to relevant physical data or samples taken or provided in Scotland, or a DNA profile derived from a sample so taken, the chief constable of the Police Service of Scotland;

(iii) in relation to fingerprints or samples taken in Northern Ireland, or a DNA profile derived from a sample so taken, the Chief Constable of the Police Service of Northern Ireland.”

This amendment and Amendment 24 make provision identifying the responsible chief officer of police in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police or the British Transport Police Force.

Amendment 24, in schedule 3, page 90, line 24, at end insert—

“(2) In the definition of ‘responsible chief officer of police’ in sub-paragraph (1), in paragraph (c)(i), ‘relevant police area’ means the police area—

(a) in which the material concerned was taken, or

(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken.”—(Stephen McPartland.)

See Amendment 23.

Question proposed, That schedule 3, as amended, be the Third schedule to the Bill.

National Security Bill (Sixth sitting)

Debate between Holly Lynch and Stuart C McDonald

Committee stage
Thursday 14th July 2022 Public Bill Committees

[Stuart C. McDonald]

We now come to two of the most important concepts in the Bill: the foreign power condition and the meaning of “foreign power.” Proving that the foreign power condition has been met is crucial to establishing many of the serious criminal offences for which we are legislating in this Bill, and all sorts of consequences flow from it in the powers to seize and search. It is vital that we get clauses 24 and 25 absolutely correct.

On the whole, the concepts are broadly in the right area, particularly in clause 24. The concept includes an agent acting on behalf of a foreign power, and with knowledge, or reasonable knowledge, that that is the case. The idea of “ought reasonably to know” being sufficient to make out a connection is perhaps a concern, but I understand why it is required for the legislation to work. I look forward to hearing more from the Minister on the thinking behind it.

To cut to the chase, the Committee will recall that, thanks to a briefing from Article 19 on clause 1, I raised the potential problem that the foreign power condition could be attached to certain unintended groups, and I highlighted two groups in particular: non-governmental organisations that receive some funding from foreign powers for perfectly good and positive reasons, and I gave an example of NGOs that fall within that bracket; and journalists who work for state broadcasters, including in countries that are our very close allies. These two groups are at risk of being caught up in the Bill because the foreign power condition is expressly met when conduct is

“carried out with the financial or other assistance of a foreign power”.

The Minister set out three protections during our consideration of clause 1: the foreign power condition itself; the discretion of the Attorney General; and the public interest test applied by the Crown Prosecution Service. Several members of the Committee spoke about why the AG’s oversight and the CPS’s discretion are insufficient. We had a debate about the chilling effect, a concept that we have just been discussing, and the fact that that would essentially leave NGOs and journalists to make decisions about whether to publish information or not based only on the very vaguest of ideas that the CPS or the AG might come to their rescue. That is not really protection at all.

As for the third protection—the foreign power condition —as far as I recall, the Minister did not dispute or expressly accept that the foreign power condition would be met in these cases. Does the Minister accept that the conduct of those NGOs and journalists could meet the foreign power condition, simply because of what they do? That is the most important question I will ask him in this debate.

Our amendment tries to stop groups being caught up in the provisions of the Bill as a result of simply receiving funding from a foreign power, when that funding has been put to perfectly legitimate and reasonable uses. The amendment requires there to be a connection between the funding and the conduct that is being complained about. For example, if the US State Department funds an NGO for human rights research, completely unrelated conduct, in particular the publication of “protected information”, would not be treated as a foreign power activity or espionage unless it was specifically linked to that funding. I accept that my amendment may not be perfect, and I can see there would be problems with it, but I think there has to be an acceptance that the clause as it stands is not perfect and there has to be protection for NGOs and journalists.

I have another concern about clause 24, particularly subsection (5) and the interaction between subsection (5) and (6). The idea of someone being brought within the ambit of espionage legislation on the basis that their act is motivated by an attempt to benefit a foreign power, even an unknown foreign power, and that is all—none of the other factors in clause 24(2)—seems dangerously liable to be able to attach itself to behaviour to which it should not be attached. Behaviour that is motivated by trying to help people in a foreign country could suddenly take on a new angle and be seen as helping a foreign power.

I will give a final example of what I am trying to get at here, which is basically whistleblowing. What if a person working for an international company here discloses a trade secret of that company to a regulator in an allied country, because the product that that company supplies there is a dangerous breach of that other country’s regulations? It seems to me that the drafting of the foreign power condition confuses whistleblowing with some of the espionage offences. Have we drawn the foreign power condition too broadly?

In relation to clause 25, on Second Reading I wondered whether the definition of foreign power was too narrow and might not cover enough of the damaging actors who engage in some of the behaviours we are so concerned about. However, the key point is that an actor can form part of an indirect relationship between the conduct of the foreign power under clause 26.

I will close my remarks there. Does the Minister accept that some of these examples are caught by the foreign power condition, in particular NGOs, journalists working for a foreign state broadcaster and whistleblowers who reveal a trade secret to a regulator working overseas? Are they caught by the foreign power condition? If so, surely we must change the drafting of the Bill.

[Holly Lynch]

I will speak to clauses 24 and 25 and, having heard the contribution from the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, about his amendment 54.

Clause 24 provides for the foreign power condition that is fundamental to almost all the new offences created by the Bill. I appreciate that the Minister has confirmed that we will see the detail of a foreign interference registration scheme before we return to Committee in September, but it will be particularly interesting to see how the provisions in clause 24 interact with a registration scheme, and what an asset that stands to be if it is done properly.

Clause 24(1) provides that the condition is met if a person’s conduct or a course of conduct is carried out for or on behalf of, or with the intention to benefit, a foreign power. In addition, for the condition to be met, the person must know, or reasonably ought to know, that the conduct has that relationship to the foreign power, which I think is clear enough.

Subsection (2) sets out a welcome but non-exhaustive list of different types of relationship between the foreign power and the person engaging in the conduct that would result in a person being considered to be acting for or on behalf of the foreign power.

Under this clause, conduct is deemed to be carried out for or on behalf of a foreign power if it is instigated by a foreign power, it is directed or controlled by a foreign power, it is carried out with financial or other assistance from a foreign power, or it is carried out in collaboration with or with the agreement of a foreign power. It strikes me that thousands of people in the UK could meet all the foreign power stipulations in subsection (2) without ever engaging in any criminality—for example, if they work for a legitimate state-owned company, such as an airline operating out of the UK, or in a foreign embassy. I am keen to see the detail of the registration scheme, so that we have transparency and clear lines about what is welcome and entirely appropriate conduct on behalf of a foreign power and what is not.

Subsection (6) states that is not necessary to identify the particular foreign power that the person intends to benefit. That provision is intended to cover when a person attempts to help a foreign power, but has not yet determined the particular foreign power. I can see how this part of the clause rightly captures the conduct of someone motivated by financial gain, who seeks to sell information or intellectual property to the highest bidder, or perhaps by a desire to cause harm to the UK as a result of a grievance.

For the reasons I have outlined, I imagine that we will come back to clause 24 when debating further parts of the Bill. It would have been advantageous to consider the clause alongside the detail of the foreign influence registration scheme. We will have to undertake that separately, but we recognise that clause 24 is fundamental to this legislation.

Clause 25 defines a foreign power for the purpose of clause 24 and sets out the persons and bodies that comprise a foreign power. We welcome the much-needed update and clarity of what constitutes a foreign power for the functioning of clause 24 and the new offences created by the Bill. I note that the Law Commission’s report, “Protection of Official Data”, made a clear case for replacing “enemy” with “foreign power” and looked to the Canadian Security of Information Act 2001 and the US Congress’s Espionage Statutes Modernisation Bill, which was introduced in 2010, as starting points.

The Official Secrets Act 1911 provides that it is an offence for a person to make or obtain

“any sketch, plan, model, or note”

or

“any secret official code word, or pass word…or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy”.

The Law Commission felt that as the term had been drafted with enemy states in mind, it was unclear whether a court would construe “enemy” broadly enough to encompass non-state actors, such as an international terrorist group. It was further concerned that the inclusion of the term “enemy” had the potential to inhibit the ability to prosecute those who commit espionage. We have already heard quotes from Sir Alex Younger’s testimony last Thursday. In response to a question about how threats to the UK have changed, he said:

“What I would call grey threats…often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 11, Q21.]

I therefore welcome the change from enemy to foreign power to ensure that we can secure prosecutions against the right people.

That said, concerns were raised in submissions to the Law Commission’s consultation and I wonder if the Minister can respond to those. Guardian News and Media gave the following example:

“If a journalist obtains information that a nuclear defence installation is unsafe, that concerns have been reported to the appropriate authorities, but have been discounted, and the journalist then proceeds to investigate whether the information is true, they should not be placed at risk of prosecution. Under the existing wording of section 1 OSA, the ‘of use to the enemy’ requirement would it is submitted make such a prosecution unlikely, however if that wording were changed to a foreign power, and a foreign state-owned institution was thinking of bidding to decommission the plant, this could catch the journalist. Such activity by a journalist should not be considered to be espionage.”

Again, it would have been advantageous to consider this clause alongside the foreign influence registration scheme, which will presumably be clear about who needs to register and why, aligned with subsections (1) and (2) of clause 25, but I hope that the Minister can respond to the concerns raised in that example.

National Security Bill (Fourth sitting)

Debate between Holly Lynch and Stuart C McDonald

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Holly Lynch]

Clause 12 is a substantial addition to the Bill so warrants further consideration. It introduces a new bespoke offence of state-sponsored sabotage, capturing activity conducted for, on behalf of or for the benefit of a foreign power, resulting in damage to property, sites and data affecting the UK’s interests and national security, which we are happy to support. What has taken the Government so long? It is an extremely welcome provision.

The need for a specific criminal offence of sabotage on the UK’s statute books is long overdue. The necessity for it has increased over time. Over recent years, the nature of sabotage—most notably, the nature of cyber-attacks and sabotage—has changed rapidly. Subsection (3) outlines all the ways in which the act of sabotage can manifest. Subsection (1)(b) is explicit, covering a person’s intent and whether they are

“reckless as to whether their conduct will result in damage”.

As MI5 director general Ken McCallum highlighted,

“cyber is no longer some abstract contest between hackers in it for the thrill or between states jockeying for position in some specialised domain...cyber consistently bites on our everyday lives.”

I was struck by the evidence provided by Paddy McGuinness, the former deputy national security adviser, when I asked him about clause 12 last week. He said:

“one of the difficulties with this grey space activity…is that if you have a presence for an intelligence purpose, you can flick it over and turn it into a disruptive or destructive attack. That is where that preparatory bit is quite important, too: understanding that the simple fact of engaging and being present quickly takes you towards sabotage. I think these are absolutely vital powers.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 24, Q47.]

The sense that someone engaged in espionage on behalf of a hostile state could just as easily be instructed to engage in sabotage reminds us why the new offences are necessary as a package of measures. A report published by Lloyd’s of London only last month crystalises the threat posed by cyber-attacks and sabotage. The report, entitled “Shifting powers: Physical cyber risk in a changing geopolitical landscape” and written in partnership with the Centre for Risk Studies at the University of Cambridge, warned that:

“Whilst most cyber-attacks are digital, physical cyber-attacks–defined as virtual attacks which trigger physical disruption–are becoming increasingly commonplace. The rise of state-sponsored cyber-attacks is a significant focus for businesses and governments, driven by an evolving geopolitical landscape in the wake of Russia’s invasion of Ukraine.”

The UK’s national cyber strategy, published in February this year, also demonstrates the potential threat posed by cyber-sabotage. It states:

“The threats we face in and through cyberspace have grown in intensity, complexity and severity in recent years. Cyber attacks against the UK are conducted by an expanding range of state actors, criminal groups (sometimes acting at the direction of states or with their implicit approval) and activists for the purpose of espionage, commercial gain, sabotage and disinformation.”

From this, we can see that cyber-activity could be prosecutable under a number of the new offences, but I know that the ability to robustly take on sabotage with clause 12 is welcome to those on the frontline of mounting the UK’s defences.

Although outside of scope of the Bill, I will briefly make the point that the Computer Misuse Act 1990, which was the first major legislative attempt to tackle cyber-crime and criminalise hacking, is now also long overdue an update. May I suggest that we have another look at that legislation alongside the Bill and the provisions in this clause, to ensure that we are meeting the cyber-challenges we face as a nation as robustly as is required?

Existing legislation largely fails to accommodate for state-sponsored acts of sabotage. The Criminal Damage Act 1971 defines sabotage as:

“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”

We therefore welcome the foreign power condition in subsection (1)(d), which will allow police to bring to justice those who work for or conspire with hostile Governments to prejudice the safety or interests of the UK.

We welcome that the offence will link to the preparatory conduct offence to give law enforcement and the intelligence agencies the powers to intervene at an early stage. Despite the changing nature of sabotage, we also welcome that the clause contains provisions to tackle acts of physical damage on sensitive sites, such as critical national infrastructure, property belonging to Her Majesty’s Government, military buildings and sites, other defence assets, or acts that impact goods, systems or services supplying the UK, such as data centres or undersea cable infrastructure. If I have not been clear enough, we very much welcome the addition of clause 12 to the Bill.

[Stuart C. McDonald]

I echo much of what the shadow Minister, the hon. Member for Halifax, said. As ever, I have slight concerns about the breadth of the foreign power condition and how that might interact with sabotage—for example, if a protest on behalf of one of the aforementioned non-governmental organisations causes some damage to a site. Of course, such protestors should face criminal law, but I would hope it would be general criminal law rather than the sabotage offence set out in clause 12 and the heavy sentence that comes with that.

For all the reasons set out by the shadow Minister, we support the inclusion of clause 12. The Minister moved the clause formally, but it would be useful for us to talk it through because this is a new departure for us, and it would be interesting to hear the Government’s thoughts on the nature of the offence.

--- Later in debate ---

[Stuart C. McDonald]

I will be brief. Clause 13 introduces a general offence of foreign interference that is punishable by up to 14 years in prison. As with clause 12, we support the broad idea—indeed, the structure of the offence appears to make sense—but it is a fairly novel departure for this country. I look forward to hearing the Minister talk us through precisely how the provision will work given that it is so novel and fairly complicated. I have said my piece on my concerns about the foreign power condition and the rather nebulous concept of the interests of the United Kingdom, so I will not repeat it.

The amendment asks a short, sharp question. Condition A applies if the foreign offence takes place outside the UK, and it is met only if the conduct is an offence under the law of England and Wales. The simple question is: why does that apply to England and Wales only? It does not apply to Scotland or to offences under the law of Northern Ireland. I genuinely do not know what the thinking behind that is. There may be a perfectly reasonable answer, and the amendment is designed to tease it out. I look forward to hearing much more from the Minister about how the offence will work. On the whole, the clause provides a justified and welcome new offence that we would support.

[Holly Lynch]

Clause 13 is quite substantial, and creates a new and general offence of foreign interference. Under the clause, someone who behaves recklessly but for whom an intention to aid a foreign intelligence service cannot be proven would not be committing an offence, unlike under clause 12.

The hon. Member for Hastings and Rye has a particular interest in that element of the offences. She will remember that in last Thursday’s evidence session, she asked Professor Sir David Omand, the former director of GCHQ, about the question of recklessness in clause 13. He said that he

“looked to clause 24, ‘The foreign power condition’, and there is quite a lot of scope in it for a successful prosecution to demonstrate that the individual who has, as you say, acted recklessly, could reasonably have been expected to know that their act would benefit a foreign power, for example, so I was not so concerned about that particular question.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 17, Q34.]

However, in response to a very similar question, Carl Miller, the research director of the Centre for the Analysis of Social Media at Demos, made the interesting point that introducing recklessness in such a way may make businesses or service providers take their responsibilities on those types of risks more seriously when agreeing to take on commissioned work. I put that example to the Minister in our discussions on clause 3.

We will propose later in proceedings, through new clause 2, an independent reviewer to look annually at all the powers in the Bill—not just part 2—and not only check that we have the right balance when using the powers, and consider any unintended consequences, but make recommendations. I think clause 13 is viewed as fair by both sides of the Committee, but I hope that our debate about recklessness has shown that new clause 2 would make a great deal of sense.

Government amendment 9 is a welcome step—if somewhat presumptuous—that would make foreign interference a priority offence in the “Online Safety Act”, as on the amendment paper. It is slightly odd to amend the Online Safety Bill through this Bill, given that that Online Safety Bill is only just out of Committee—it is on Report in the Chamber as we speak—but the change is a very welcome development none the less. Reset.Tech’s Poppy Wood spoke in evidence of her hopes for that provision, and was pleased to see its addition.

Later in proceedings, we will come back to what more could be done in the disinformation space when we discuss new clause 3, which addresses the reporting of disinformation originating from foreign powers. Alongside clauses 13 and 14, we have discussed separately with the Minister that we are still awaiting further news about the planned foreign influence registration scheme, which has been called for since the aforementioned 2020 Russia report. It was a big focus on Second Reading, when the Minister’s predecessor was under a great deal of pressure from the Chair of the Intelligence and Security Committee and others for not having produced the detail in time for the whole House to be able to discuss and debate it. The practical outcome of the implications of clause 13 is that we would like to see the detail as soon as possible, and the Minister knows our views on that.

Before closing, I want to touch on the issue of foreign interference. On Second Reading, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) spoke extensively about the need to tackle shell companies. The new offences outlined in these clauses will mean little if they cannot be detected or if measures are rarely enforced. Again, we urge the Government to remove the loophole that allows shell companies to be used to make donations to political parties, and to hide foreign donations and donations linked to hostile states. I expect the Minister will say that further work on interference of that type is under consideration as part of a second economic crime Bill, but I am looking to him for further assurances on that type of foreign interference.

National Security Bill (Third sitting)

Debate between Holly Lynch and Stuart C McDonald

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Holly Lynch]

I have the Minister’s explanation. We considered the implications of Government amendments 1 to 4 earlier, and on that basis we are satisfied.

Amendment 1 agreed to.

Amendments made: 2, in clause 3, page 4, line 8, leave out “is” and insert “was”.

This amendment is consequential on Amendment 1.

Amendment 3, in clause 3, page 4, line 10, leave out “is” and insert “was”.

This amendment is consequential on Amendment 1.

Amendment 4, in clause 3, page 4, line 10, at end insert—

“(7A) A person is taken to have shown a matter mentioned in subsection (7) if—

(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and

(b) the contrary is not proved beyond reasonable doubt.” —(Stephen McPartland.)

This amendment provides that a defendant bears an evidential burden in relation to the defence in clause 3(7).

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4

Entering etc a prohibited place for a purpose prejudicial to the UK

[Stuart C. McDonald]

I beg to move amendment 50, in clause 4, page 5, line 9, at end insert—

“(7) No offence is committed under subsection (1) if the conduct is for the purposes of protest unless the conduct is prejudicial to the safety of the United Kingdom.”

This amendment would restrict the circumstances in which access to a prohibited place for the purposes of protest would amount to an offence under this section.

Nationality and Borders Bill (Thirteenth sitting)

Debate between Holly Lynch and Stuart C McDonald

Tuesday 2nd November 2021 Public Bill Committees

Holly Lynch

-

I have heard some of the Minister’s attempts at reassurance. I have real concerns about some of the changes to the reasonable grounds decision. We heard in earlier discussions on the Bill about the introduction of trafficking information notices, which I am concerned will affect the need to take the reasonable grounds decision quickly. The amendment could have been a step towards improved confidence in, and scrutiny of, those early decisions, so I continue to implore the Government to consider introducing those panels in the guidance. It may not need to be in primary legislation, but I hope that the Minister has heard the case for that approach. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)

- - Excerpts

I beg to move amendment 176, in clause 48, page 43, line 17, leave out subsection (7).

Under this amendment and the corresponding amendment to clause 57, the Secretary of State would no longer be able to change the definition of slavery and human trafficking by regulations. Instead, any changes to the definition of slavery would require primary legislation.

--- Later in debate ---

Holly Lynch

-

Clause 50, as drafted, should not stand part of the Bill. The amendment would ensure that those exploited as children will not be denied additional recovery periods if they are re-trafficked or if additional periods of trafficking are disclosed. Children, in particular, who make up 47% of those referred to the national referral mechanism, are at serious risk of being trafficked and going missing from care. In 2017, one in four identified trafficked children were reported as going missing. The number of children referred to the NRM is also rising, with last year seeing an almost 10% increase compared with the previous year. The average number of missing incidents for each trafficked child has also increased, from 2.4 to 7.4 between 2014-15 and 2017-18. Therefore, amendment 180 is even more vital, considering the worrying trends we are seeing.

Every Child Protected Against Trafficking UK has warned that clause 50

“may severely impact child trafficking survivors”

who are at high risk of going missing and being re-trafficked, particularly when

“they transition to adulthood and require access to support and protection through the NRM.”

To make that point, I want to share a real-world case study provided by ECPAT UK that demonstrates why our amendment is necessary.

Huang was referred to the local authority children's services at age 17, following a police operation in a nail bar. He was also referred as a potential victim of trafficking into the NRM and received a positive reasonable grounds decision. He was accommodated by the local authority. He told his support worker that he had been scared because his family back home were receiving threats to pay back his debt. Shortly after, he went missing. He was found by the police just after his 18th birthday and went on to develop trust with his lawyer, where he disclosed for the first time a significant period of exploitation in Vietnam, across Europe and in the UK, prior to being found in the nail bar. He remains in fear, and while the dangers facing his family back home persist, sadly, there is still a high likelihood that he will go missing again.

Without amendment 180, Huang may be unable to be referred to the NRM again, given the new disclosure of previously unknown periods of exploitation. As he is now 18, he would not be looked after by children’s services. Clause 50, as it stands, will place him at great risk of subsequent re-trafficking in the absence of access to safe accommodation and support through the NRM during his reflection and recovery period.

The increase in the number of British children in the NRM in relation to child criminal exploitation gives us further cause for concern. I recently met officers from the Metropolitan Police Service who are leading the response on trafficking, slavery and exploitation. They told me that it is becoming standard practice that when a child or young person is sent on their first county lines journey, their exploiter will arrange for them to be robbed of the drugs they have been instructed to sell. When they then have to come back and explain what has happened, they are immediately told they have to work off the value of the drugs. That traps them in debt bondage, even though the real criminal will have recovered the drugs, having arranged what can sometimes be a particularly violent mugging in the first place, so in reality there is no debt.

It would not be unusual for children in such vulnerable and exploited positions to be identified by the authorities but then go missing from the NRM because of the risks that persist. They must be treated as a safeguarding concern and not by way of immigration compliance, not least because so many of those children are British nationals. So I ask the Minister again: why are children subject to clause 50, given their particular vulnerabilities? Amendment 180 seeks to right that wrong. I am sure all colleagues will agree that a child rights-centred approach, which ensures children’s safety and their protection, must be a priority. I therefore hope the Minister will reflect on the points we have made and accept Amendment 180.

More broadly, clause 50 has the potential to exclude trafficked children and adults from being identified following re-trafficking, thereby leaving them unable to access the support they should be entitled to. I worry that with this clause the Government are suggesting that making repeat claims of having been trafficked undermines someone’s credibility. However, we also know that traffickers are increasingly coaching those they are exploiting on what to say should they be identified by authorities. An expectation is placed on the victim that they will return to their exploiters due to their perceived debt bondage, in order to avoid consequences for them or often their families.

Re-trafficking has increasingly become a part of a trafficker’s operating model, so why are we not responding to that? The changes negatively affect the victim and not the perpetrator of such crimes. It also appears to contradict the identified need for individual assessment and support, as required under ECAT. The Government have described the clause as necessary

“to prevent the recovery period being misused by those wishing to extend their stay in the UK and to remove unnecessary support and barriers to removal where these are not needed”.

Will the Minister present the evidence to support that claim? That explanation fails, not least, to recognise that the most common nationality of all referrals to the NRM for victims of modern slavery in 2020 was that of UK nationals, primarily referred for criminal exploitation. We know that children make up the lion’s share of those referrals. Does that not make the Government stop and think about what is in the clause?

There is a fear that the NRM is being misused by those wishing to extend their stay in the UK. Without amendment 180, the clause means that we are sending children, both migrant and British, back into the arms of their exploiters. We plead with the Minister to think again about the clause. We cannot see it stand part of the Bill.

Stuart C. McDonald

- - Excerpts

I support the amendment and join the calls for the clause not to stand part of the Bill. I very much echo the comments of the shadow Minister. Like her, and as on previous occasions, I find myself not at all clear why the clause is necessary, and what problem it is driving at. Again, I find myself asking for evidence. I have not seen or heard about an issue with abusive additional trafficking claims sparking extra NRM recovery periods. I recognise that that could absolutely happen in theory, but we need much more by way of evidence before we enact such a clause.

Even though someone might be describing earlier events of trafficking, disclosure of that additional information and trafficking or slavery histories could have all sorts of significant implications for that survivor. It could, for example, mean a break from a controlling partner. It could give rise to other dangers for them or to new trauma. Furthermore, as the Independent Anti-Slavery Commissioner has noted, survivors can feel more able to disclose their trafficking experiences relating to one particular form of exploitation than another, so forced labour can sometimes be disclosed earlier than sexual exploitation, due to feelings of shame or mistrust.

The fact that if the competent authority considers it appropriate in the circumstances of a particular case another recovery period can be granted is better than nothing, and it is good that that provision is in the clause, but that protection needs to be considerably strengthened to ensure that those who need it will have it. As matters stand, we have no idea how that analysis is going to be undertaken. What if the disclosure of this new information leads to new dangers or new trauma? Surely we would all agree that that should require a new decision and a new recovery period, but there is nothing in the Bill to say that that would definitely happen.

Perhaps the clause should be reversed—the Home Office might want to consider turning the presumption around, so that we assume instead that a new recovery period would be needed unless we are satisfied with a very restricted route for a very restricted range of reasons, and the reasonable grounds decision should not occur. The Home Office needs to explain its thinking here.

Finally, on the issue of trafficking, the Independent Anti-Slavery Commissioner and the Rights Lab at the University of Nottingham are conducting research on that subject at this very moment in time. I urge the Home Office to wait to see the evidence, rather than jumping in with two feet.

--- Later in debate ---

Holly Lynch

-

Amendments 7, 5 and 6 concern the provisions to provide leave to remain for survivors of trafficking. Similar to our amendments to clause 52, amendment 5 seeks to bring the provisions in line with article 14 of ECAT by changing the criterion for providing leave to remain from “recovery” to “personal situation”. The reference to “personal situation” recognises that leave is necessary for a range of reasons. The explanatory report to ECAT states:

“The personal situation requirement takes in a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account.”

Amendment 6 would remove the criterion for not granting leave to remain if assistance could be provided in another country or compensation sought in another country. It is not clear why the Government introduced that criterion, and I would be grateful if the Minister could outline in his response how he could possibly envisage that working in practice.

Amendment 7 provides a clear minimum timeframe for granting leave to remain, thereby creating more certainty for victims. Under the Home Office’s current guidance on assessing discretionary leave for survivors of modern slavery, leave to remain is granted for a mixture of different time periods—sometimes as little as six months. Those timeframes are short, and the inconsistency can set back recovery.

In 2017, the UK Government issued figures on grants of leave to confirmed modern slavery victims. Some 21% of confirmed victims who were neither UK nor EU nationals were granted asylum in 2015. A group of more than 13 frontline charities that are expert practitioners in providing support to victims of slavery highlighted the problem, stating that:

“The support currently provided to survivors of human trafficking and modern slavery is not meeting recovery needs. Government funded support ends abruptly and too early and there is little information or data as to what happens to survivors in the longer term. The current situation leaves survivors with little realistic opportunity to rebuild their lives, with some ending up destitute, vulnerable to further harm or even being re-exploited.”

The Government may argue that they are already providing support for confirmed victims in England and Wales through the recovery needs assessment. However, under the RNA, victims are not guaranteed long-term support. Victims will receive a minimum of 45 days of move-on support, with the RNA determining how much—if any—extra support is required under the modern slavery victim care contract; that extra support will be for a maximum of six months at time, and may be only a few days or weeks.

Furthermore, Labour believes that victims’ needs are not fully addressed in the RNA. In the 2020 annual report on modern slavery, the support recommended by victim support workers was agreed to in full by the Home Office in only 53% of cases, which raises questions as to whether the process genuinely responds to victims’ needs or is, instead, focused on moving victims out of the service. In summary, amendments 7, 5 and 6 are necessary to address the fundamental challenge facing victims and provide them with far greater certainty.

Amendment 189 is necessary because all child victims must be granted immigration leave in line with their best interests as standard, as stated in international law and UK guidance. The amendment seeks to incorporate the entitlement to immigration leave for child victims as per article 14 of ECAT into primary legislation. It will specify that if the person is aged 17 or younger at the point of referral into the national referral mechanism, the Secretary of State must give the person leave to remain in the United Kingdom if that is in the person’s best interests, giving due consideration to a victim’s need for support and care and a sustainable arrangement.

The Independent Anti-Slavery Commissioner has echoed concerns on the lack of clarity around what the clause would mean in practice for children, with this having been acknowledged in the Government’s response to the new plan for immigration consultation. Dame Sara Thornton states

“it is disappointing that this detail was not included as part of the Bill”,

and we share that frustration. There is no consistent public data available on the outcomes for potential child victims of trafficking, but evidence shows that our current policies are not being implemented adequately.

Every Child Protected Against Trafficking requested data through the Freedom of Information Act on the immigration outcomes for those exploited as children, the response to which showed alarming results in the data. It found that only about 5% of child-related considerations resulted in a positive decision for discretionary leave. The data indicates that discretionary leave is not being granted to children as victims of trafficking, and that in the small number of cases where it is, the average length of grant is short, suggesting that decisions are not being taken with their best interests as a primary consideration, providing minimal stability.

How many child victims of trafficking were subsequently granted indefinite leave to remain under the policy is unknown but, based on those figures, we can estimate that they are few. That is despite the explicit current policy that states the need to consider the length of leave, including a grant of indefinite leave to remain in line with the child’s best interests. That requirement is set out to fulfil the Secretary of State’s statutory obligation under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the wellbeing of children. All child victims of trafficking must be granted immigration leave in line with their best interests as only standard, as stated in international law and UK guidance.

Stuart C. McDonald

- - Excerpts

I want to say a few words in support of the amendments, which have the SNP’s full support. Currently, while someone might be in limbo for a long time, they are more secure the day after their referral into the NRM than they are the day after they receive a positive conclusive grounds decision, and that is not right. If they have been accepted as a survivor of trafficking, it makes them less secure. We should move towards a period of automatic leave to remain. The provision of leave is often an absolute prerequisite for meaningful recovery. With some security of status, the ability to seek employment or education and participate in the community builds confidence and stability, and the amendments broaden the number who will achieve that stability.

We also absolutely agree that there are problems regarding consistency between article 14 of the trafficking convention and current Home Office guidance. That is what amendment 5 would fix, so we support it. The convention speaks of allowing leave where necessary, given a survivor’s personal situation, and the explanatory report to the convention refers to issues around safety, their state of health, and the family situation or similar. The Home Office guidance calls for a much broader, individualised human rights and children’s safeguarding legislation-based approach, which seeks to protect and assist a victim and safeguard their human rights. Decision makers are to assess whether a grant of leave is necessary to meet the UK’s objectives under the trafficking convention and to provide protection and assistance to that victim owing to their personal situation. The current guidance is therefore closer to the convention than what is in this Bill.

The clause considerably reduces the scope of article 14 and the idea of a personal situation by adopting wording from the totally different article 12 and not offering any justification for that. The purpose and aim of leave to remain is recovery first in the host state if a survivor seeks that before any further upheaval is forced on them. That helps a survivor, and it helps us with law enforcement. It is also the only realistic way that they will be able to seek redress through compensation from those who exploited them. Pursuing such compensation from abroad just does not happen in practice.

Putting emphasis on the possibility that protection might be offered in the survivor’s home state, as the clause does, risks undermining a proper analysis of the personal circumstances as a whole and risks putting survivors back to square one and at risk of re-trafficking. Crucially, watering down the current position will mean fewer survivors remaining here or being in the best position to work with law enforcement authorities to bring the perpetrators of these awful crimes to justice. Again, that is dreadful news for survivors, but dreadful news for all of us as the perpetrators will escape punishment and other people will become the next victims. We support these amendments and call on the Government to explain why they do not just adopt the wording of article 14 of the European convention.

Nationality and Borders Bill (Thirteenth sitting)

Debate between Holly Lynch and Stuart C McDonald

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[Holly Lynch]

I have heard some of the Minister’s attempts at reassurance. I have real concerns about some of the changes to the reasonable grounds decision. We heard in earlier discussions on the Bill about the introduction of trafficking information notices, which I am concerned will affect the need to take the reasonable grounds decision quickly. The amendment could have been a step towards improved confidence in, and scrutiny of, those early decisions, so I continue to implore the Government to consider introducing those panels in the guidance. It may not need to be in primary legislation, but I hope that the Minister has heard the case for that approach. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I beg to move amendment 176, in clause 48, page 43, line 17, leave out subsection (7).

Under this amendment and the corresponding amendment to clause 57, the Secretary of State would no longer be able to change the definition of slavery and human trafficking by regulations. Instead, any changes to the definition of slavery would require primary legislation.

--- Later in debate ---

[Holly Lynch]

Amendments 7, 5 and 6 concern the provisions to provide leave to remain for survivors of trafficking. Similar to our amendments to clause 52, amendment 5 seeks to bring the provisions in line with article 14 of ECAT by changing the criterion for providing leave to remain from “recovery” to “personal situation”. The reference to “personal situation” recognises that leave is necessary for a range of reasons. The explanatory report to ECAT states:

“The personal situation requirement takes in a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account.”

Amendment 6 would remove the criterion for not granting leave to remain if assistance could be provided in another country or compensation sought in another country. It is not clear why the Government introduced that criterion, and I would be grateful if the Minister could outline in his response how he could possibly envisage that working in practice.

Amendment 7 provides a clear minimum timeframe for granting leave to remain, thereby creating more certainty for victims. Under the Home Office’s current guidance on assessing discretionary leave for survivors of modern slavery, leave to remain is granted for a mixture of different time periods—sometimes as little as six months. Those timeframes are short, and the inconsistency can set back recovery.

In 2017, the UK Government issued figures on grants of leave to confirmed modern slavery victims. Some 21% of confirmed victims who were neither UK nor EU nationals were granted asylum in 2015. A group of more than 13 frontline charities that are expert practitioners in providing support to victims of slavery highlighted the problem, stating that:

“The support currently provided to survivors of human trafficking and modern slavery is not meeting recovery needs. Government funded support ends abruptly and too early and there is little information or data as to what happens to survivors in the longer term. The current situation leaves survivors with little realistic opportunity to rebuild their lives, with some ending up destitute, vulnerable to further harm or even being re-exploited.”

The Government may argue that they are already providing support for confirmed victims in England and Wales through the recovery needs assessment. However, under the RNA, victims are not guaranteed long-term support. Victims will receive a minimum of 45 days of move-on support, with the RNA determining how much—if any—extra support is required under the modern slavery victim care contract; that extra support will be for a maximum of six months at time, and may be only a few days or weeks.

Furthermore, Labour believes that victims’ needs are not fully addressed in the RNA. In the 2020 annual report on modern slavery, the support recommended by victim support workers was agreed to in full by the Home Office in only 53% of cases, which raises questions as to whether the process genuinely responds to victims’ needs or is, instead, focused on moving victims out of the service. In summary, amendments 7, 5 and 6 are necessary to address the fundamental challenge facing victims and provide them with far greater certainty.

Amendment 189 is necessary because all child victims must be granted immigration leave in line with their best interests as standard, as stated in international law and UK guidance. The amendment seeks to incorporate the entitlement to immigration leave for child victims as per article 14 of ECAT into primary legislation. It will specify that if the person is aged 17 or younger at the point of referral into the national referral mechanism, the Secretary of State must give the person leave to remain in the United Kingdom if that is in the person’s best interests, giving due consideration to a victim’s need for support and care and a sustainable arrangement.

The Independent Anti-Slavery Commissioner has echoed concerns on the lack of clarity around what the clause would mean in practice for children, with this having been acknowledged in the Government’s response to the new plan for immigration consultation. Dame Sara Thornton states

“it is disappointing that this detail was not included as part of the Bill”,

and we share that frustration. There is no consistent public data available on the outcomes for potential child victims of trafficking, but evidence shows that our current policies are not being implemented adequately.

Every Child Protected Against Trafficking requested data through the Freedom of Information Act on the immigration outcomes for those exploited as children, the response to which showed alarming results in the data. It found that only about 5% of child-related considerations resulted in a positive decision for discretionary leave. The data indicates that discretionary leave is not being granted to children as victims of trafficking, and that in the small number of cases where it is, the average length of grant is short, suggesting that decisions are not being taken with their best interests as a primary consideration, providing minimal stability.

How many child victims of trafficking were subsequently granted indefinite leave to remain under the policy is unknown but, based on those figures, we can estimate that they are few. That is despite the explicit current policy that states the need to consider the length of leave, including a grant of indefinite leave to remain in line with the child’s best interests. That requirement is set out to fulfil the Secretary of State’s statutory obligation under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the wellbeing of children. All child victims of trafficking must be granted immigration leave in line with their best interests as only standard, as stated in international law and UK guidance.

[Stuart C. McDonald]

I want to say a few words in support of the amendments, which have the SNP’s full support. Currently, while someone might be in limbo for a long time, they are more secure the day after their referral into the NRM than they are the day after they receive a positive conclusive grounds decision, and that is not right. If they have been accepted as a survivor of trafficking, it makes them less secure. We should move towards a period of automatic leave to remain. The provision of leave is often an absolute prerequisite for meaningful recovery. With some security of status, the ability to seek employment or education and participate in the community builds confidence and stability, and the amendments broaden the number who will achieve that stability.

We also absolutely agree that there are problems regarding consistency between article 14 of the trafficking convention and current Home Office guidance. That is what amendment 5 would fix, so we support it. The convention speaks of allowing leave where necessary, given a survivor’s personal situation, and the explanatory report to the convention refers to issues around safety, their state of health, and the family situation or similar. The Home Office guidance calls for a much broader, individualised human rights and children’s safeguarding legislation-based approach, which seeks to protect and assist a victim and safeguard their human rights. Decision makers are to assess whether a grant of leave is necessary to meet the UK’s objectives under the trafficking convention and to provide protection and assistance to that victim owing to their personal situation. The current guidance is therefore closer to the convention than what is in this Bill.

The clause considerably reduces the scope of article 14 and the idea of a personal situation by adopting wording from the totally different article 12 and not offering any justification for that. The purpose and aim of leave to remain is recovery first in the host state if a survivor seeks that before any further upheaval is forced on them. That helps a survivor, and it helps us with law enforcement. It is also the only realistic way that they will be able to seek redress through compensation from those who exploited them. Pursuing such compensation from abroad just does not happen in practice.

Putting emphasis on the possibility that protection might be offered in the survivor’s home state, as the clause does, risks undermining a proper analysis of the personal circumstances as a whole and risks putting survivors back to square one and at risk of re-trafficking. Crucially, watering down the current position will mean fewer survivors remaining here or being in the best position to work with law enforcement authorities to bring the perpetrators of these awful crimes to justice. Again, that is dreadful news for survivors, but dreadful news for all of us as the perpetrators will escape punishment and other people will become the next victims. We support these amendments and call on the Government to explain why they do not just adopt the wording of article 14 of the European convention.

Nationality and Borders Bill (Twelfth sitting)

Debate between Holly Lynch and Stuart C McDonald

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Stuart C. McDonald]

I am grateful to the Minister for his response, which I will go away and consider. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Holly Lynch (Halifax) (Lab)]

I beg to move amendment 184, in clause 46, page 42, line 3, at end insert—

“(3A) Any slavery or trafficking information notice must be accompanied by information regarding the Secretary of State’s obligations to identify and support potential victims of modern slavery and trafficking.”

This amendment would ensure that potential victims are given information regarding their rights at the same time the notice is served.

It is a pleasure to serve with you in the Chair, Ms McDonagh. I commend the Minister on having run the London marathon for Justice and Care, which does invaluable work.

We are supportive of the previous Scottish National party amendments to clause 46, which were outlined by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. If we achieve nothing else this afternoon, I did promise the SNP spokesperson that I would work on being able to pronounce his constituency in time for our debates on the Bill, having managed to avoid doing so entirely during the passage of last year’s Immigration Act. I hope he will recognise those efforts.

With your permission, Chair, I will come back to clause 46 more broadly during the stand part debate. Our amendment follows a damning letter sent by 60 charities from across the human trafficking and modern slavery sector. They seeks to mitigate the effects of a Bill that they claim

“will have a disastrous impact on the UK’s response to modern slavery.”

In the light of the series of recommendations in that letter, amendment 184 would require any slavery or trafficking information notice to be

“accompanied by information regarding the Secretary of State’s obligations to identify and support potential victims of modern slavery and trafficking.”

We have serious concerns about both clauses 46 and 47, but these trafficking information notices are a new initiative, and should be accompanied by a full explanation of why the questions are being asked and what rights and support a potential victim of trafficking should be entitled to. The Government have placed significant emphasis on the need to reduce the time taken for victims to be identified, and on ensuring they receive the correct support package at the earliest opportunity. We strongly share that objective, so the requirement for information to be provided at the same time as the notice is served seeks to address any uncertainty and anxieties a potential victim may have.

Furthermore, it is critical that a trafficking notice is served with an assessment and awareness of risks and victims’ needs, as they can be incredibly wide-ranging, and that assessment and awareness can be essential for safeguarding purposes. Some victims will not have English as their first language, and some may have limited literacy skills. They will need access to the correct translator and there should be recognition of any special educational needs. That reinforces the need for each case to be evaluated sensitively.

We seek to ensure that the basic entitlement to information is met. It is important to recognise that in cases of modern slavery, many first responders and expert witnesses have found that victims interviewed often have so little knowledge of the national referral mechanism that they do not know if they are, or have been, in the NRM. Victims being unable to self-identify and limited awareness of how to navigate the NRM are consistent issues, and we will return to them under other clauses in part 4. Amendment 184 seeks to mitigate potential restrictions to the NRM, and is a sensible suggestion, and I hope that the Minister sees its merit.

Nationality and Borders Bill (Fourth sitting)

Debate between Holly Lynch and Stuart C McDonald

Committee stage
Thursday 23rd September 2021 Public Bill Committees

[Holly Lynch]

Q We are still waiting to probe some of the information around these trafficking information notices, perhaps in Committee, but do you have a sense that it would be appropriate to receive legal aid and legal advice at the point at which you receive a trafficking information notice, as well?

Adrian Berry: Yes, of course. As you know, there is a whole series of notices, including in relation to trafficking, which increasingly assimilate it to the asylum process where you get punished for producing evidence or material after an arbitrary cut-off date. There is no safeguard in the Bill for when that cut-off date is—it could be too soon, before you have had an opportunity to recover, to produce the information and receive support. Legal aid is one way of enabling people to properly frame their case at the earliest possible opportunity. The use of notices throughout the Bill, whether trafficking, asylum or priority removal notices, is a subject of serious concern in terms of procedural fairness and ensuring convention compliance, whether that is the trafficking convention or the refugee convention.

[Stuart C. McDonald]

Q I will address this question to Patricia Cabral and the European Network on Statelessness. Could you just explain what the implications of this Bill are for children who face statelessness, and how this might impact on them?

Patricia Cabral: Thank you for the question. Clause 9 proposes to amend and restrict a vital safeguard in British nationality law that was initially introduced with the aim of preventing and reducing childhood statelessness. It is important to note that the UK has international obligations in this area, so the existing safeguard implements those international obligations by enabling a child who was born in the UK and has always been stateless to acquire British citizenship after five years of residing here. We are concerned that the amendment proposed by clause 9 restricts children’s ability to access that safeguard and acquire British citizenship. It is not in line with the UK’s international obligations, and it clearly risks leaving even more children in the UK stateless and in limbo throughout their childhood.

In the last year, we developed a project to understand the issue of childhood statelessness specifically in the UK, so we have gathered some evidence about the barriers these children are facing and who the stateless children in the UK are. Perhaps it would be useful for us to share some of our findings in this area. I will just note that the stateless children in the UK are mainly children who are currently affected by statelessness because their parents belong to a recognised stateless community—for example, the Kuwaiti Bidoon, Rohingya, Palestinian or Kurdish populations—but many of them are also children in care, especially where they have a migrant background. There may be issues with acquiring parental consent if it is required for the child to access nationality, because the documentation may be missing. Children in care are at particular risk of statelessness, because there is a general lack of awareness from local authorities about nationality issues. There may also be children of Roma families or children affected by domestic abuse, trafficking or other forms of exploitation. We are generally talking about children who are already vulnerable and marginalised, and who are also stateless.

We should also bear in mind that clause 9 would amend the provision that applies only to children who were born in the UK and who have lived here for at least five years. We are talking about children who were born here, who grew up here and who really feel that they belong in the UK. They do not know any other country, they feel British and they wonder where else they belong, if not in the UK. We have received some statements from children who grew up in the UK without British nationality, and it really has an impact on them. They describe feelings of alienation, a loss of self-confidence and the challenges to their identity. We have heard from a child who told us that she could not join her class on a trip to France, and she felt that the situation was really insecure and that it was not safe for her to make close friendships. We can only imagine the emotional burdens of this.

We can see how children feel the impact of being stateless, but they really do not understand why they are stateless, and they feel disempowered to change this. That is because the power to change this is really with the UK authorities—for them to grant nationality and a sense of belonging to the UK. Therefore, that starts with simply not amending the existing safeguards that are in line with international law, so clause 9 of the Bill should simply be dropped.

--- Later in debate ---

[Stuart C. McDonald]

Thank you very much.

[Holly Lynch]

Q I have a question for Every Child Protected Against Trafficking. Patricia, in your written submission you were very critical of the lack of due process. Could you take me through just how dissatisfied you were with the consultation process and why?

Patricia Durr: We have talked about how children’s rights are exercised by the provisions in the Bill. A children’s rights impact statement would really have assisted consideration of some of the measures, by setting out which children’s rights are invoked and how they are impacted. It is something the Committee on the Rights of the Child has asked the UK Government to do systematically. It is safe to say that the length of the consultation period was not sufficient.

We were quite surprised that the part 4 provisions are being included in this asylum and immigration Bill, particularly given that there is currently a review of the modern slavery strategy. On the lack of consultation, certainly from our perspective, what implications might there be for child victims of trafficking? Their experience of waiting in limbo, and the lack of provision for leave to remain as recognised child victims of trafficking, rather than through asylum provisions within the immigration rules are certainly a huge concern for the young people we work with, and that would come through very strongly from them. It was that combination: why these provisions in this Bill, and the lack of engagement with children and young people—from our perspective—but also, survivors of trafficking and exploitation more broadly.

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

Debate between Holly Lynch and Stuart C McDonald

Committee stage & Committee Debate: 8th sitting: House of Commons
Thursday 18th June 2020 Public Bill Committees

[Stuart C. McDonald]

I beg to move, That the clause be read a Second time.

It is a pleasure to address new clause 46, this time with a cross-party hat on, rather than my usual SNP hat. I am grateful to the Chair of the Home Affairs Committee, the hon. Member for Kingston upon Hull North and others for co-ordinating on this new clause.

As Members will know, the European Union has in place a fairly mature—it is certainly not perfect, but it is long standing—system of deciding which member state should appropriately consider a claim for asylum. For example, if an unaccompanied child is found on one of the Greek islands seeking asylum and it is known that they have family members in another EU country, few of us here would argue against the notion that the child should be reunited with their family and the claim considered in that member state.

In January this year, Parliament passed section 37 of the European Union (Withdrawal Agreement) Act 2020, which regrettably abolished the previous requirement on the Government to seek to negotiate an alternative to replace the family reunion provisions in the EU’s Dublin regulation. At the time, the Government were full of assurances that this did not represent a downgrading of their ambitions and said that they would protect family reunion for unaccompanied children in the Brexit negotiations, but in its current form, the UK’s proposal to the EU rows back on those assurances and would leave hundreds of children stranded.

There are numerous problems with what the Government propose. Most fundamentally, the proposed text removes all mandatory requirements on the Government to facilitate family reunions and would make a child’s right to join their relatives entirely discretionary. The text also intentionally avoids providing rights to children. It does not provide for appeals and attempts to put these issues beyond the reach of UK courts. Other categories of vulnerable refugees, including accompanied children and adults, would lose access to family reunion altogether. A series of other key safeguards are removed, including strict deadlines for responses and the responsibility for gathering information being on the state rather than the child.

This issue is hugely important. Between 2009 and 2014, before mandatory provisions were introduced by Dublin III, family reunions to the UK were carried out at an average rate of 11 people annually. Between 2016 and 2018, after the mandatory provisions were introduced by Dublin III, family reunions to the UK were carried out at an average rate of 547 people annually. The Government were not straight with Parliament when they proposed clause 37 of the withdrawal Bill earlier this year, and I think they have behaved in a rather upsetting manner, if I can put it like that.

We now have a situation where there are unaccompanied child refugees and refugees more generally living in appalling conditions in Greece and France. Of course those countries are under an obligation to do more to support and assist them, but many of those kids have family here, and I cannot see how any reasonable person can argue against the logic, the sense and the simple compassionate idea that that child should be reunited with their family in this country and have their asylum claim decided here.

The Government should stop messing about, stop trying to water down their previous commitments and revert to the obligation that Parliament previously placed upon it, which is to negotiate a full and proper replacement of the Dublin regulations, including an obligation to allow children to be reunited with their families in the United Kingdom.

[Holly Lynch]

It is a pleasure to follow the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, the SNP spokesperson, who used his experience to make a very convincing contribution.

Labour will support new clause 46, which was tabled by the Chair of the Home Affairs Committee with the support of a number of its members, as well as the Chairs of the Joint Committee on Human Rights and the Housing, Communities and Local Government Committee.

As we have heard, as a member of the EU, the UK has participated in the Dublin III regulation, which has allowed people seeking asylum in Europe to be transferred to the UK on the basis of family unity and to have their asylum claims considered in the UK. The Dublin III mechanism generally affects a small number of children, but it has a transformative effect on their lives. It has become an increasingly important family reunion route, with more than 1,600 people having been reunited through it since the start of 2018.

However, this route will end once the transition period comes to an end on 31 December 2020. While the Government have committed to seeking an arrangement through the UK-EU negotiations that would maintain a family reunion element of the Dublin system for separated children, we would very much like assurances that the Government are firmly committed to this.

We are concerned that, unlike Dublin III, the current proposals would not be mandatory and would take us back to the days when child refugees were reunited with family only at the discretion of the national Government. That would require the transferred person to make an asylum claim and only secure family unity pending a decision on that claim. Labour, along with the Families Together coalition, supports new clause 46. We want to see a system that retains the family reunion route under the Dublin III regulation for all families.

This is Refugee Week, and family reunion has been a long-standing feature of the UK’s immigration system. The United Nations High Commissioner for Refugees has said that

“there is a direct link between family reunification, mental health and successful integration.”

By diminishing children’s chances of reaching their relatives legally, restrictive rules sadly only drive people to take more and more perilous alternatives, putting lives at risk and empowering people smugglers.

Labour joins Safe Passage, Amnesty International, the British Red Cross, Oxfam, the Refugee Council, the UNHCR and so many others who make up the Families Together coalition to urge the Government to prioritise family reunion, so that children, spouses and vulnerable adults can reunite with their family and close relatives, by maintaining safe and legal routes for people to come to the UK.

At a time when we are all feeling the effects of separation from our families due to the pandemic, the Government must recognise the need to protect all child refugees adequately and provide a legal and safe means for the reunification of families.

--- Later in debate ---

[Stuart C. McDonald]

I beg to move, That the clause be read a Second time.

It used to be that the Home Office enforced immigration rules by good old-fashioned intelligence-led investigation and action, but under political pressure and the influence of austerity, increasingly the Home Office has decided to rely on essentially outsourced immigration control, hoping that if they made life tougher for unauthorised migrants, they would leave of their own accord. This is of course the hostile environment, and it has been ramped extensively in the last two Immigration Acts, such that little landladies and landlords, as well as bank staff and Driver and Vehicle Licensing Agency workers, all have to work as immigration officers now. All sorts of Government Departments are tasked with helping the Home Office with its work by sharing information, which makes people wary of accessing public services.

When these measures were introduced, Opposition MPs warned that there would be all sorts of negative consequences and that errors would be made, meaning that people would be denied housing or would have their bank accounts closed when they should not have been. We warned that there was little to suggest that attempts at enforcing destitution and desperation would persuade people to leave, that its impact would lead to all sorts of injustices, and that it could actually make immigration enforcement harder, not easier, as undocumented migrants are forced into the hands of unscrupulous landlords and employers and made ever more difficult to trace.

Four and six years on from the relevant Immigration Acts, the Bill would see that same hostile environment impacting on many more people. We should not allow that to happen without first assessing whether the Government have achieved what they set out to achieve with the hostile environment measures, or whether the warnings from Opposition MPs have been proven correct. Has the hostile environment achieved anything, or has it caused relentless problems, as was forecast?

It appears that the Home Office cannot tell us what the impact of the hostile environment has been in contributing to its policy goals. As the National Audit Office said only yesterday, it is currently unable to assess whether these measures have had any meaningful impact on the likelihood that an individual will leave the UK voluntarily. In fact, the number of voluntary departures has reduced significantly since 2015—in 2015 there were an average of 1,200 such voluntary departures each month, and by 2019 that was down to 460.

That echoes previous findings by the chief inspector of borders and immigration in relation to the right to rent, which is probably the most dangerous of the hostile measures, in that it leaves private citizens with the job of doing immigration checks. He concluded that the scheme had yet to demonstrate its worth as a tool for encouraging immigration compliance, with the Home Office failing to co-ordinate, maximise or even measure effectively its use, while doing little to address stakeholder concerns.

I want to emphasise those concerns. Time and again, the Home Office has been warned about the discrimination in the housing market caused by the right to rent scheme. These warnings came from the Joint Council for the Welfare of Immigrants and from the Residential Landlords Association. It is not difficult to understand how this comes about. Let us imagine a close relative who happens to let properties. How easy would it be for them to assess immigration status? How easy would it be for them not to be influenced by the fact that if they made a mistake in that assessment they would face criminal prosecution, a fine and even imprisonment? It is blindingly obvious that there is a huge danger of discrimination. Repeated surveys and assessment by organisations such as JCWI and the Residential Landlords Association have shown that to be the case.

We now have a court case proceeding to the Supreme Court. Both in the High Court and in the Court of Appeal, the finding of fact was made that this scheme has in fact resulted in discrimination. The Home Office had success at the Court of Appeal stage, on the basis that on paper and in theory the scheme could be operated in a way that did not lead to discrimination, but that is not anything to celebrate. The scheme has been ruled lawful, but it has been found to operate in a discriminatory way.

This is a time when we really must have a thoughtful and comprehensive analysis of what has happened to immigration policy and the functioning of the hostile environment. That is exactly what Wendy Williams suggested in her Windrush lessons learned review, yet today we have been asked to extend the scope of that hostile environment without such a review taking place, and without any evidence being provided by the Home Office that the scheme is having an impact or contributing towards any of its policy goals.

Right to rent is the most scandalous of these problems, but it is causing all sorts of problems in other areas as well. For example, the independent chief inspector of borders and immigration found that something like 10% of the bank accounts that have been closed as part of the scheme related to people who had every right to be here. That is a huge number of people who have been caused problems by this way of doing things, and they are not only migrants; of course, several million UK citizens do not have a passport and therefore struggle sometimes to prove their right to access services and housing, and to go about their lawful business.

We need to know from the Minister what work is being done to assess the impact of the hostile environment. Rather than celebrating the finding that, in theory, the right to rent scheme could operate without discrimination, what work has been done to make sure that it operates without discrimination? If no such work has been done, or if it cannot be guaranteed that the scheme will operate without discrimination, when will it be repealed?

[Holly Lynch]

I support new clause 55 and I would have supported new clause 47 had it been moved. Both new clauses seek to safeguard EEA and Swiss nationals from the reality of the Home Office’s hostile environment policy.

We have cited examples of potential problems relating to the hostile environment throughout the sittings of this Bill Committee, but the Windrush lessons learned review highlighted the structural flaws that permeate the hostile environment approach. Instead of increasing the effectiveness of the Home Office machine, that approach has instead led to the hounding of those unable to prove their status, while simultaneously disregarding the legitimacy of independent cases.

Throughout the sittings of this Committee, we have been at pains to articulate our concerns that unless the European Union settlement scheme is 100% successful, we will never be in a position to know whether it has been or not. People will suddenly find themselves subject to the hostile environment.

Of the Windrush generation, it has been said:

“Paulette Wilson was detained in an immigration removal centre and warned that she faced removal after living in the UK for 50 years. She spent decades contributing to the UK—working for a time in this very House—yet she was treated like a second-class citizen.

Junior Green had been in the UK for more than 60 years, raising children and grandchildren here, but after a holiday to Jamaica he was refused re-entry despite holding a passport confirming his right to be in the UK. The injustice he suffered was compounded when, because of this action, he missed his mother’s funeral.

Lives were ruined and families were torn apart.”—[Official Report, 19 March 2020; Vol. 673, c. 1154.]

Those words, setting out those examples, are an extract from the Home Secretary’s statement to the House on presenting the Williams review in March. Yet we are still waiting for the necessary structural reforms to be made at the Home Office to give us any confidence that those who missed the EUSS deadline, because of reasons that should be looked upon favourably, will not be refused by one of the same decision makers who made misguided judgment calls on Windrush cases in the pursuit of Home Office targets.

In trying to mitigate the impact of the Windrush scandal, the Government launched a number of initiatives to go into communities and undertake almost a tidying-up exercise, to ensure that people had the paperwork they needed to protect them from such encounters with the Home Office in future. The Commonwealth citizens taskforce and the vulnerable persons team have delivered that work in communities, but we know that comparable preventive initiatives seeking to support those most at risk of not applying to the EUSS on time have had to stop work, due to the coronavirus. I hope the Minister might be able to update us on how those activities will be super-charged to make up for lost time, once it is safe for them to continue.

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

Debate between Holly Lynch and Stuart C McDonald

Committee stage & Committee Debate: 7th sitting: House of Commons
Thursday 18th June 2020 Public Bill Committees

[Holly Lynch]

That is one of the best interventions I have taken during the course of this Committee, and it was a welcome addition.

The Royal Association of British Dairy Farmers has estimated that in the UK, 56% of dairy farmers have employed workers from the EU; 60%––around 22,800 EU migrants––make up the workforce in poultry farming. According to the NFU, the UK’s horticulture sector is completely reliant upon seasonal migrant workers to collect crop yields: 99% of all harvesters in the UK come from Europe. All these working relationships have been forged over time due largely to the flexibility granted by freedom of movement.

The British Poultry Council has warned that the new immigration plans are likely to have a crippling impact on UK food businesses. A report of the kind outlined in new clause 24 is therefore necessary to safeguard the UK’s agriculture industry, during a time of much upheaval. As both the National Farmers Union and National Farmers Union of Scotland have stressed, fruit and vegetable picking requires a high level of manual skills, and farms can only operate efficiently when they recruit workers with this skillset.

This is the one sector where we can say that we have just been through a trial for the ending of free movement, brought about by lockdown. Migrant labour dried up due to lockdown and the Government tried to recruit from the domestic labour force. Nowhere near the required numbers joined up, fruit and veg started to rot in the fields and we were forced to very quickly get migrant labour from Europe back in on chartered flights. It is vital that the Government learn from our experiences during the crisis and develop a proactive and pragmatic agricultural policy for implementation after the transition period. New clause 24 would give us the information required to do this.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship again, Sir Edward. I can be relatively brief because the shadow Minister has spoken to the National Farmers Union of Scotland and represented its interests pretty well. There is real concern about shortages in the labour market for agriculture, particularly in relation to seasonal workers. Research on seasonal migrant labour from 2018 showed that in Scotland alone the number of seasonal agricultural workers required in any year is not far short of 10,000.

More recently, the NFUS and the UK farming unions have given evidence to the UK Government, demonstrating that for the whole UK around 70,000 seasonal staff are required in the horticultural sector and 13,000 seasonal staff are required in the poultry sector every year. That is obviously many times more than the number of places in the current pilot.

Challenges in recruiting seasonal workers have already been seen in recent years. In 2018, the NFUS conducted a survey of its horticultural membership in which every single respondent reported being “concerned” or “very concerned” about the impact worker shortages would have on their businesses in 2018 and beyond. Almost 60% of respondents said they were “likely” or “very likely” to downsize their business and the remaining 42% said they would have to cease current activity.

The NFUS was opposed to the end of free movement but, even while free movement was retained, farmers increasingly needed to look beyond the EU to fill such posts, with countries such as Ukraine, Russia, Belarus and Moldova already supplying a significant proportion of the workers required. The seasonal agricultural workers scheme pilot has been described as a step in the right direction, but it does not provide nearly enough permits if shortages such as those experienced in recent years are going to continue.

The NFUS is calling for a seasonal scheme that is open to both EU and non-EU workers, with capacity to provide farmers with access to returnee employers. It also calls for the scheme to be open to a wide number of labour providers and direct recruiters. Some concerns have been expressed about the expense and the somewhat laborious processes that are involved in taking advantage of the scheme.

The NFUS has also expressed concerns that the future immigration system proposed by the Government is not based on realistic expectations of the ability of the UK to fill the jobs currently carried out by migrant workers. It says that

“to maintain the productivity of the agricultural sector, immigration policy must allow recruitment on a seasonal basis for workers from both the EU and non-EU, at a non-restricted level.”

I echo what the shadow Minister, the hon. Member for Halifax, said about the SAWS scheme and how we always have to be cautious about the need to carefully protect workers against exploitation. She was right to highlight concerns raised by Focus on Labour Exploitation during the passage of the Bill last year.

To come to the rescue of the right hon. Member for Scarborough and Whitby, the gangmasters legislation was very welcome, but so too was the introduction of the director of labour market enforcement in 2016, under the Conservative Government, which may have been what he was thinking about. Those are both welcome moves, but we have a long way to go to build on the creation of those posts in ensuring that migrant workers—and workers generally—are properly protected.

One criticism of the new clause is that it is not just on seasonal workers that we need to have a report; we need a broader report on the impact on access to labour in the agricultural industry. The concerns of organisations such as the NFUS go further than seasonal work, and include the cost of sponsorship under tier 2, which it has described as

“prohibitively expensive in terms of both financial and administrative burden.”

It is fair to say that the NFUS has welcomed some of the recent developments, for example the decrease to the salary threshold that has been introduced by the Government, but it asks how non-salaried roles will fit into the points-based system; how the revised shortage occupation list will generally take account of the range of occupations that exist in agriculture; whether the Government will consider targeted routes for remote and rural areas—unfortunately, from what the Minister said the other day, it sounds as if it will be disappointed in that regard—and how the expense and bureaucracy of the system can be improved. It simply calls for close engagement as we move towards the implementation of the new system.

The new clause is sensible and will contribute to our understanding of what is going on in a future debate about labour in the agricultural sector.

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[Holly Lynch]

I beg to move, That the clause be read a Second time.

We have been through a great deal of this subject matter earlier in the debate on clause 2. I was grateful to the Minister for some of the clarity he was able to provide at that stage. New clause 27, however, goes that little bit further and asks the Government to produce a report on the associated rights given to citizens in the common travel area.

The aim of this proposed change is to ensure that Ministers set out in detail the scope of what has been officially referred to as the reciprocal rights of the common travel area, and to compare and contrast them with the rights that can be retained under part two of the withdrawal agreement, as provided for domestically under the EU settlement scheme. The Minister’s predecessor stated that Irish citizens do not need to apply to the EU settlement scheme because of the CTA, but since then the Government have instead suggested that individuals whose immigration status is covered by the CTA may wish to register under the EU settlement scheme. Inevitably, this has caused a degree of confusion about possible gaps between where free movement rights finish and CTA rights start.

As highlighted by the Northern Ireland Human Rights Commission, the EU SS is enshrined in law through the withdrawal agreement. Comparatively, however, the CTA is upheld essentially by a gentlemen’s agreement, the non-legally binding memorandum of understanding between the UK and Ireland on the CTA of May 2019. A report on the associated rights of the CTA would therefore be incredibly helpful to ensure that Irish citizens can receive equal rights to EEA and Swiss nationals.

We also believe that the report on the associated rights granted through the CTA would provide scope to begin to answer the pertinent questions about clause 2 raised during the evidence given by our expert witnesses. As previously discussed, while we welcome the provisions set out in clause 2 for Irish citizens, there is still outstanding ambiguity regarding the status and legality of the associated rights that are prescribed by the common travel area.

We believe that it would be incredibly welcome if the Government were to take this opportunity to clarify any ambiguity before the Bill takes effect. A report would provide unequivocal guidance on the status of Northern Irish citizens who identify solely as Irish. It would hopefully guarantee the same provisions for deportation and exclusion as those for Northern Irish citizens who identify as British. It would also clarify issues raised by the Committee on the Administration of Justice on questions relating to cross-border provisions and the right to vote in referendums. More must also be done to tackle the current problematic loophole whereby someone with an Irish passport is not granted protections on arriving in the UK, because they have travelled from a country outside the common travel area. Professor Ryan illustrated the opacity surrounding the status of acquisition of British nationality for British-born children, children born to Irish parents and Irish citizens wanting to naturalise. He stressed that this is currently an unanswered question in British citizenship law.

Finally, the report could also lead to a more sustained debate on Alison Harvey’s proposal on the right to abode, which was raised during evidence. The right to abode would grant citizens a plethora of citizenship rights, while simultaneously safeguarding people’s right to identify solely as Irish. We hope the new clause will catalyse discussions on this issue that will lead to a definitive conclusion.

[Stuart C. McDonald]

I can be very brief. I echo and support what the shadow Minister has said. I am not going to repeat what I said on clause 2; that is a welcome clause, although we have one or two concerns about the detail. What this whole debate has shown us is that, even though we are told that the common travel area pre-existed the European Union and everything is fine, in actual fact it is hard to discern what precisely is involved in the CTA and precisely what rights it confers on individuals.

My understanding from the debate we had last week is essentially that the Government propose to progress this in a rather piecemeal way, changing bits and bobs of the legislation on different subjects to ensure that Irish citizens will continue to enjoy equivalent rights in this country. Okay, that will get us to where we want to be, but it does prohibit us from having a comprehensive overview of what progress has been made and what exactly we are trying to achieve by restoring the common travel area and making sure that there is not a loss of rights because of the loss of free movement.

The new clause would be genuinely be helpful for MPs to understand what the CTA is all about, what exactly the Government are trying to achieve and what progress they are making towards that. It is a genuinely helpful suggestion.

--- Later in debate ---

[Holly Lynch]

I am grateful to the Minister for that response. At this stage, we will continue to follow the negotiations on the additional reciprocal arrangements, and on that note I beg to ask leave to withdraw new clause 29.

Clause, by leave, withdrawn.

New Clause 30

Procedures for amending Immigration Rules

“(1) The Immigration Act 1971 is amended in accordance with subsection 2.

(2) After section 3(2) insert—

“(2A) Any statement of the rules, or of any changes to the rules, which affect the rights and obligations of persons who will lose their right of freedom of movement under the provisions of the Immigration and Social Security Co-Ordination (EU Withdrawal) Act may not be made or have effect unless the Secretary of State has complied with subsections (2B) to (2F) below.

(2B) If the Secretary of State proposes to make changes to the rules under subsection (2A) above, the Secretary of State must lay before Parliament a document that—

(a) explains the proposal; and

(b) sets it out in the form of a draft order.

(2C) During the period of 60 days beginning with the day on which the document was laid under subsection (2B) (the “60-day period”), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modification).

(2D) In preparing a draft order under section (2A) above, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period—

(a) any representations; and

(b) any recommendations of a committee of either House of Parliament charged with reporting on the draft order.

(2E) When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document under subsection (2B).

(2F) In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is not adjourned for more than 4 days.”—(Stuart C. McDonald.)

This new clause would amend the Immigration Act 1971 to ensure that any changes to the UK’s Immigration Rules which affect EEA or Swiss nationals must be made under the super affirmative procedure.

Question put, That the clause be read a Second time.

Question negatived.

New Clause 32

Annual report on labour market

“Within 12 months of this Act coming into force, and every 12 months thereafter, the Secretary of State must lay a report before Parliament setting out how any changes made to the Immigration Rules for EEA and Swiss nationals have affected the extent to which UK employers have adequate access to labour.”—(Stuart C. McDonald.)

This new clause would mean the Secretary of State must lay a report before Parliament on how changes to Immigration Rules for EEA and Swiss nationals are affecting access to labour.

Brought up, and read the First time.

[Stuart C. McDonald]

I beg to move, that the clause be read a Second time.

I can be relatively brief, since we covered much of this territory in earlier discussions, but it is a useful opportunity to push the Minister on a few issues. What progress can he report on raising awareness of the new tier-2 procedures in which so many small and medium-sized enterprises will have to participate, and what support is being rolled out for those businesses to help them to navigate the new system? What change has he noticed in the number of applications for tier-2 sponsorship licences, and what work is under way to streamline the system, which we have spoken about at length previously?

I suspect the Minister’s answer to the new clause will be that there is to be an annual MAC report. If so, can we ask that it is laid before Parliament and then have a debate on it? The Home Affairs Committee spoke about an annual debate on migration in a repot two or three years ago in trying to build a consensus on migration. It looked at how other countries developed immigration policy, and one issue that featured heavily in other jurisdictions was, at the very least, an annual debate on immigration policy generally.

We are talking about seismic changes to the way in which many businesses will go about recruiting and accessing the labour market, and the number of industry bodies that have come to me to express concerns is unbelievable—industry bodies I did not even know existed until they got in touch—across food and drink, agriculture, tourism and hospitality, fishing, manufacturing, engineering, logistics, financial services, social care, education, and many more. There is significant apprehension, and it is not because any of these industries want to exploit low wages; it is their realistic assessment that they are struggling already to access the labour they need in the UK at a price they can afford and which keeps them competitive. Now they are going to struggle to access labour from abroad, because of immigration rules.

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

Debate between Holly Lynch and Stuart C McDonald

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

[Stuart C. McDonald]

This brings us to the hot topic of the immigration health surcharge. It is worth remembering that the health surcharge is a fairly new concept, as it was introduced in 2014. It is set at £400 per year for most applicants, with a discounted rate for students and tier 5 youth mobility workers. The Government have decided to increase the fee to £624 per person per year in October.

Those are hugely significant sums of money, as the charge has to be paid per person per year for the full duration of the visa being applied for, before that visa application has even been considered. Somebody who comes in under a typical five-year tier 2 visa will have to pay more than £3,000 up front in health charges. If they have a husband or wife and a couple of kids, that is three extra NHS surcharges, so more than £12,000 up front without even thinking about the visa fee. On a discounted rate, a student coming for three years will need to pay more than £1,400 up front. Again, that is completely separate from the visa fee. Of course, the Bill extends the scope of the immigration health surcharge to many more applicants.

A particular injustice is done to people applying for leave to remain based on long residence. They are individuals and families who are forced on to a dreadful treadmill of applications and expense. Repeatedly, they have to apply for 30 months’ leave to remain. A single parent with two kids applying under those rules would need to pay almost £4,700 in health charges, and more than £3,000 in immigration fees, for just 30 months. They have to make that same application over and over again until they get to 10 years. When they get to 10 years and are met with a settlement fee of £2,400 per person, they will already have paid £10,300 per person. For a family, £10,000 per person is impossible. Shamefully, those people are often prohibited from having access to public funds.

Those people are applying because of long residence in the UK so, realistically, in many cases, there is no other country that they can go to. The children have spent most, if not all, of their lives here. It can put families in intolerable situations where they have to choose which family member they can afford to pay the fee for. A child may end up missing out because the most immediate and pressing priority is to pay the fee for a breadwinner.

In a way, the charge represents the worst of Home Office policy making, although the Treasury is as much to blame for stripping the Home Office right down to the core and instructing it to use migrants as cash cows to fund its activities. It also illustrates the Home Office at its worst, because the policy is more about grabbing the headlines than anything else. It is illogical, unjust and counterproductive.

The excuse given is that the policy ensures that migrants contribute towards the cost of the NHS system that they may use—but in that case, why is there an NHS charge but not an education charge, especially for families with kids? Why is there not a public transport or roads charge, or a local services charge? It is essentially a fig leaf for the fact that it is simply a general tax.

It is also unjust in that it is a form of double taxation and it is a poll tax. Migrants, of course, contribute to public services through general taxation like everybody else, through income tax, council tax and indirect taxes. The NHS surcharge is totally regressive. It falls unfairly on different migrants, as a wealthy bank worker with no dependants will pay about a quarter of the sum that an NHS careworker will pay if he or she comes in with kids. Most importantly, it falls unfairly on migrants as opposed to those who are citizens or settled. Migrants pay a general tax that the rest of us do not, while at the same time paying all the other taxes that we do.

Finally, from a different perspective, this is a policy that makes the UK an eye-wateringly expensive place for people to come to work. That will now expand to EU and Swiss nationals, and to the small and medium-sized businesses that employ them. Just as businesses are struggling to keep their noses above water, the Government intend to whack them with a plethora of fees, vis-à-vis skills charges and the NHS surcharge.

As we heard last week, it is the big multinationals that are well practised in this system over time, and that have the know-how and resources. Small and medium-sized businesses will end up not only having to navigate the complex tier 2 system, but often meeting the cost of the immigration health surcharge. If a job pays around £26,000 or £27,000, nobody in their right mind is going to come if they have to pay almost half a year’s salary up front. The small hotel and the fish-processing factory will have to pay it on their behalf and, quite simply, they may well not be able to afford to do that. It will not just be one job that remains unfilled. The danger becomes that that hotel or factory simply cannot continue to function and it moves elsewhere. Workers will go where they are not being totally ripped off.

Can the Minister give me examples of other countries that operate such a system in relation to a health surcharge? If so, what is the comparable rate? All the comparisons that I have looked at show that the UK is charging people to come here at a rate that is several times that of most of our competitor countries. In short, this is unjust, it is counter-productive, it is a double poll tax and it should be axed altogether. We support the Labour amendment and new clause as far as they go, but our view is that the solution is total abolition, rather than trimming around the edges.

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to serve under your chairmanship once again, Mr Stringer. I rise to speak to new clause 42. I agree with a great deal of what my friend the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said about the immigration health surcharge.

The Labour party is undertaking a significant piece of work with colleagues in the health team about the subject, so we will not make any further comments at this stage about new clause 12. We tabled new clause 42 and we welcome the Government’s commitment to scrap the NHS surcharge for migrant health and care workers, which we feel is long overdue.

The pandemic has shown the enormous contribution of overseas workers to our health and care system. They have put their lives on the line every day to keep us safe. It has been an insult and injustice to then ask them to pay extra for the very services they help provide. The Government acknowledged it was wrong, and said they would be scrapping the fee, which was described as “appalling, immoral and monstrous” by Lord Patten, the former Conservative party chairman, on 21 May, but details have yet to be published about exactly how and when it will happen.

I am mindful that the commitment made by the Prime Minister, following the exchanges between our party leaders at the Dispatch Box, was broader than the new clause before us due to the scope of the Bill. The U-turn was made when a No. 10 Downing Street spokesman announced:

“The PM has asked the Home Office and the Department for Health and Social Care to remove NHS and care workers from the NHS surcharge as soon as possible. Work by officials is now underway on how to implement the change and full details will be announced in the coming days.”

We share the opinion of Donna Kinnair, general secretary of the Royal College of Nursing, who said it was

“a shame it took this pandemic for the government to see sense”.

We also share the opinion of the British Medical Association, the Royal College of Nursing, the Royal College of Physicians and Unison, which have written to the Prime Minister to demand clarity about his commitment. I hope that the Minister can update the Committee and, indeed, the general public on what progress the Government have made. Can he confirm that all health and care workers will be exempt from the charge on a permanent basis, including those employed in the NHS, independent settings and the social care sector; that the spouses and dependants of health and care workers will also be exempt from the charge; and that health and care staff, who have paid the charge in advance, which will be all those currently working in the NHS and social care, bearing the brunt of the pandemic, will be appropriately reimbursed?

New clause 42 intends to hold the Government to the commitments made following PMQs on 20 May. As you can imagine, Mr Stringer, international doctors and nurses, who have just had to endure the most difficult, traumatising period of their careers, were hugely relieved when the Government made the overdue decision to scrap this unfair charge for health and care workers, finally recognising the vital contribution that overseas staff make to the NHS. However, we are nearly a month on since the announcement was made and we are still awaiting the details that we were promised.

--- Later in debate ---

[Stuart C. McDonald]

I beg to move, That the clause be read a Second time.

Illegal work was made a crime in its own right in the Immigration Act 2016. Lots of groups and MPs raised concerns at the time about the negative implications that would have, compared with any benefit it might bring. I think it is important always to revisit changes that this Parliament makes and to push the Government to explain what impact they really had.

I look forward to hearing from the Minister about the impact of that legislation. How many prosecutions have there been? What were the results of those prosecutions? What sorts of sentences were handed down? When the Government or law enforcement took that approach—the other side of the coin—what action was taken against those employers who were found to be employing people illegally?

As the Minister will be aware, at the time that legislation was introduced, all sorts of concerns were raised about the fact that it would strengthen the hand of exploitative employers, who would be able to have greater control over undocumented workers, essentially by having the knowledge that these individuals were committing a crime by undertaking that work and making it much less likely that they would even consider, never mind actually report to the authorities, the abuse and exploitation that they were suffering.

The offence applies to any migrant found to be working while they do not have valid legal status granting them leave to be in the UK, or when visa conditions ban them from working, such as in the case of asylum seekers, or if they work hours beyond those permitted by their visa, as may be the case for students. The penalty includes a maximum custodial sentence of six months and a fine at the statutory maximum. It also allows any wages paid to an illegal worker to be seized as the proceeds of crime.

The concerns raised in 2016 were that undocumented migrants in the UK forbidden from working illegally are forced to rely on illegal work, on charity and on the support of friends or family members, which can lead to situations of abuse and dependency, as well as instances of survival sex, for example, and destitution, homelessness and starvation. Often, agents who find work for undocumented migrants also run overcrowded, slum-like accommodation for the workers, keeping them isolated and cheaply accommodated.

Undocumented migrants who find work despite the prohibition are forced to look for work among some of the most unscrupulous and exploitative of employers. They are often underpaid or unpaid, forced to work extremely long hours, denied all workplace health and safety protections and threatened with being reported if they complain. As much of the work can be carried out cash in hand, the state sees none of the tax benefit either.

There are huge concerns here about modern slavery. I am grateful to the Catholic Bishops’ Conference on migration for its briefing, which states:

“Those perpetrating the horrors of modern slavery will seek every chance to take advantage of new migration policies. The government has a responsibility to ensure that proper safeguards are in place… the fear of prosecution currently deters people from escaping abusive employment practices or presenting themselves to the police. One particularly important step towards protecting people from exploitation would therefore be to repeal the offence of illegal working, so that no victim is at risk of being punished.”

Will the Government explain how this measure has helped in any way with what they want to achieve, and what steps they have taken to assess all the negative implications that we have been warning about and to militate against them?

[Holly Lynch]

We have one or two unanswered questions on how the new clause would work in practice. We want to ensure that we have done all our due diligence before lending it our support. We may well come back to this on Report.

The new clause gives us the opportunity to say to the Minister that we are incredibly concerned that there are people who, when free movement ends—innocent, ordinary, decent, hard-working people—for the whole raft of reasons that we have already been through in the Committee, may find that they have missed the deadline. They have then not only got a precarious migration status, but could, if they continue to wait, find themselves in the criminal justice system and criminalised. We need to address the issue now.

One example that we have mentioned is that which the BMA raised with me. Its doctors, on the frontline of fighting coronavirus, will potentially leave applying to the EU settlement scheme to the last minute for that reason. If they continue to work as a doctor, would they be criminalised if they had not done their due diligence in making sure they have their applications in, but were continuing to work in our NHS? Will the Minister reassure us that nobody will be criminalised and in our criminal justice system who absolutely does not belong there when free movement comes to an end at the end of this year?

--- Later in debate ---

[Holly Lynch]

I beg to move, That the clause be read a Second time.

I rise to speak in support of new clause 22, tabled in the name of the shadow Home Secretary, myself and my Committee colleagues. The new clause would exempt NHS employers from having to pay the immigration skills charge.

As I have already stressed in my attempts to win support for other new clauses, the NHS workforce has historically relied on the support of professionals from across the world coming to the UK. In recent decades, that has included a supply of EU nationals. Nearly 10% of doctors, 8% of social care staff and 6% of nurses working in the UK are from EEA countries.

As things stand, NHS trusts pay the skills charge for those coming to work in the NHS from countries outside the EU and will be expected to pay those costs for those coming from EU countries after free movement ends. The immigration skills charge is effectively a skills tax paid by employers who have recruited from overseas instead of from the domestic workforce, to act as a disincentive and to promote recruitment from a local talent pool. That is fair enough, but in the context of the NHS, levelling the tax on NHS trusts is nothing short of an outrage.

If trusts cannot find clinical specialists here in the UK, they have no choice but to find them from overseas. The UK has a number of clinical skills shortages in many specialist areas and, in the absence of any Government strategy to respond to that domestically, the NHS has to hire from overseas.

We have already heard a lot about Brian Bell’s contribution to the evidence session last week. He gave the example of the nurse shortage. He said:

“often the shortage occupation list identifies a failure of the British education system to provide the people who are needed. A classic example of that is nurses. Nurses have been on the shortage occupation list since I can remember ever hearing of it. Every time they are put on the list, we hear statements along the lines of, ‘Yes, we know that they are in shortage, and we have a plan to increase the number of nurses who go through training so that we deal with the shortage in the long run.’ They are still on the shortage occupation list. We should be using the shortage occupation list to signal both to Government and to employers that there are training needs that need to be fulfilled.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 24, Q49.]

An NHS trust cannot unilaterally decide to train more nurses from the domestic labour force if it is struggling to recruit; it needs Government intervention to deliver the uplift.

In the MAC’s 2019 full review of the shortage occupation list, where all doctors were added to the list, under section 4B on health occupations, the review was keen to stress that

“the rise in vacancies and concern over lack of staff has occurred under freedom of movement and during a period when many health occupations have been on the SOL. Ultimately it will take more effective workforce planning and efforts to increase the flows into health professions (and decrease flows out) to meet growing demands.”

That is a worrying thought.

We have clinical workforce shortages almost across the board in the NHS, and that has been while we have had free movement. Adopting new clause 22 would be just one small step towards protecting the NHS from the inevitable impact of free movement coming to an end with the Bill.

As constituency MPs, we all have casework relating to patients with rare medical conditions who have been on waiting lists for years to see a specialist, because there may be only one or two doctors specialising in that condition in the country. There may be only a handful in the world, so trusts are regularly looking to recruit from overseas because they seem to have no choice. The immigration skills charge punishes trusts for doing so, with the Government taking back much-needed cash from budgets in order to pay the fees. It seems grossly unfair and counterproductive, and it takes money out of frontline hospital services.

The Labour party has submitted freedom of information requests to 224 NHS hospital trusts in England, asking how much of the charges they are paying back to the Government. So far, only 45 have responded—around 21% of the trusts. To give an indication of what some hospitals are paying out, I should say that Lewisham and Greenwich NHS Trust had to pay the Government £961,000 in immigration skills charges over the past three financial years. Portsmouth Hospitals NHS Trust tells us that it paid out more than that in the 2019-20 financial year alone, with a bill for £972,000 in just 12 months; it has paid over £2 million in immigration skills charges since 2017. The Royal Free London NHS Foundation Trust has paid over £1 million in the same timeframe, and the University Hospital Southampton NHS Foundation Trust has paid £1,224,509 since 2017.

From the 21% of trusts that have responded to our FOI request, we know that nearly £13 million has been taken out of the NHS and handed back to the Government since 2017—nearly £13 million from just 21% of hospital trusts in England. That some hospitals can pay out nearly £1 million in immigration skills charges in a single year surely has to be a sign that the system is not working as intended. To repeat the point made by the MAC, this is all while people have been able to come under free movement, where fees would not have been applicable. That is about to come to an end. I urge the Minister to adopt new clause 22 to mitigate any further detrimental impact on the NHS workforce and to ensure that NHS funding stays in the NHS.

[Stuart C. McDonald]

In a sense, this debate echoes the one we had on the immigration health surcharge. I support everything that the shadow Minister has said, but I would push the Labour party to go a bit further and scrap the whole scheme.

I have nothing against the principle that employers should pay a contribution towards the cost of training and developing the skills on which businesses rely, but why should it apply only to those who recruit from abroad? That is not in any way a proxy for determining which businesses, companies and employers are not doing enough training in their own right. In fact, very often the opposite is the case: many of the businesses, companies and employers who recruit from overseas are also the ones who invest considerable sums of money in training and upskilling their workers.

However, skill shortages often arise at very short notice. For all the workforce planning that they do, and for all the training that they invest in, employers regularly have a need to recruit from abroad. As I say, it is a very poor proxy for trying to target companies that are not properly investing in training. The whole thing needs rethinking.

[Kevin Foster]

I thank the hon. Members for Halifax and for Cumbernauld, Kilsyth and Kirkintilloch East for tabling the new clauses. The objective of the immigration skills charge is to incentive UK-based employers to take a long-term view of investment and training, and it is designed to address the UK’s historical underinvestment in training and upskilling. The income raised is allocated to the Department for Education and the devolved nations to address skills and training gaps in the resident workforce.

We can all agree that immigration must be considered alongside investment in, and development of, the UK’s resident workforce, and it is only right that we provide those workers with opportunities to develop skills in order to further their careers and to contribute to the future economy. That is with particular reference to the situation we see at the moment in our country, where many people might need to find new employment opportunities due to the economic impact of covid-19.

The Committee may also wish to note that the introduction of the charge was supported by the independent Migration Advisory Committee as part of its December 2015 review of the tier 2 route.

The Migration Advisory Committee also recommended that the charge be extended and retained to cover employers of EEA citizens in the future immigration framework. In its September 2018 final report on the impact of EEA migration in the UK, the MAC said:

“We believe that extending the ISC to cover EEA citizens under any post-Brexit work-permit scheme would, on balance, be appropriate.”

It would also make no sense, now that we have left the European Union, to apply exemptions based purely on being an EEA national, as this suggests.

On new clause 22, the Government recognise the vital nature of the health and social care sector to the United Kingdom. Health and social care will be at the very heart of the UK’s new points-based immigration system, and we are doing all we can to ensure that the new system is fair, attractive and welcoming to the best and brightest overseas migrants. The new skilled worker route will be open to a broader range of roles in the sector—following the expansion of the current skills threshold—than the tier 2 general route.

As I mentioned earlier, the income for the immigration skills charge is used to address skills and training gaps in the resident workforce, including the healthcare sector. It is right, therefore, that we focus on providing UK resident workers with the opportunity to develop skills that will enable them to become the healthcare heroes of tomorrow—the revenue from the immigration skills charge does that. For those reasons, the Government are not prepared to accept the two new clauses.

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

Debate between Holly Lynch and Stuart C McDonald

Committee stage & Committee Debate: 3rd sitting: House of Commons
Thursday 11th June 2020 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Edward, as we start line-by-line scrutiny of this particularly important legislation in these highly unusual times.

I thank the Minister for his opening speech on clause 1 and schedule 1. Early in proceedings, I want to put on the record my thanks to the Clerk of the Bill Committee. He has been absolutely invaluable to all Committee members with assistance on the amendments and new clauses before us.

I also want to put on the record—I am sure that the Minister will join me, in the spirit of some early unity, as might you, Sir Edward—an expression of our disappointment about the audio arrangements for Tuesday’s evidence session. The poor sound quality was problematic not only on the day, as on occasion exchanges between Members and witnesses were seriously restricted, but for Hansard during the afternoon sitting. Colleagues worked incredibly hard to make that Hansard report available, but, unfortunately, it was not published until after 11 o’clock last night. That made preparations for today’s line-by-line scrutiny based on that evidence incredibly difficult.

That said, I turn to clause 1 and schedule 1. As the Minister is aware, we voted against the Bill on Second Reading, and the clause is the Bill in a nutshell. We will go on to discuss in great detail the various clauses and to outline our reservations at the different stages, but, ultimately, we fear that the Bill—right now, and in this form—holds none of the answers to the problems facing the country and actually stands to exacerbate them.

It is not difficult to see how implementation of the Bill could have severe consequences for the health and social care sector, a point made by several of the witnesses on Tuesday. The sector will require special consideration. The policy statement published in February on what comes after clause 1 specifically comes into effect simply saying to those earning less than £25,600:

“We will…end free movement and not implement a route for lower-skilled workers.”

Many of the people on the frontline fighting the coronavirus earn less than that. We need them now, and we need them to recover. The policy paper and the Minister state that they are looking to the domestic workforce to plug those gaps, but on Tuesday we heard from the Migration Advisory Committee—we can all see and feel this—that systemic failures underpin the problems in social care, and those will not be resolved by January. If we put a hard stop on free movement without having resolved some of those issues, there will be consequences when the country can least afford that.

Concerns about the clause fall into two distinct groups: ensuring that we have done the right thing by the some 3.5 million EU citizens who are already here under free movement rules when those come to an end, and certain groups in particular, and looking ahead to the future impact of restricted migration flows. Since the Bill’s predecessor was presented to the House in the 2017 to 2019 Parliament, the EU settlement scheme has come into effect to give European citizens who reside in the UK a pre-settled and a settled status.

The numbers coming through the scheme are positive, but there are concerns about certain groups, some with specific vulnerabilities. Eligible children in care, for example, are one cohort that we will return to under the new clauses. The impact of coronavirus on Home Office capabilities alone, in addition to its impact on applicants, inevitably has heightened our concerns that some groups will need more support than ever to access the scheme.

Turning to the impact that ending free movement will have on migration flows in key sectors, the Bill provides more questions than answers. It is incredibly narrow in scope, as we have discussed, which is extraordinary given that it will create the biggest change to our immigration system in decades. Instead of putting forward a new immigration system, which Parliament could discuss, debate, amend and improve, the Bill grants powers to Ministers to introduce whatever system they like with extensive Henry VIII powers.

The Government’s February 2020 policy statement indicated what such a system might be like. Properly debating most of that new system will be deemed out of scope for this Bill and this Committee, but we will do what we can within scope to set out principles and solutions for when clause 1 comes into effect.

A number of the witnesses on Tuesday were critical of the Government’s planned £25,600 threshold—not just on health and social care—and transitioning on to a visa system and sponsorship routes will cause headaches and shortages for a range of businesses, exacerbating economic uncertainty. For example, the Bill fails to address the UK’s need for migrant workers to allow the agriculture sector simply to function, which is another issue that we will explore when we debate the new clauses.

To be clear, Labour has no problem with an immigration system that treats all migrants the same, no matter where they come from, but that is not the system the Government propose. A points-based immigration system could be effective. However, it would be predicated on receptive analysis of occupation shortages, parallel education and skills strategies that seek to fill long-term job gaps with domestic talent, and a pragmatic yet empathetic Border Force. The Bill fails to do any of that, and we will seek to remedy this, within the bounds of its scope, through our amendments and new clauses.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Sir Edward, albeit at a longer distance than we are accustomed to. I thank the Clerks for dealing with what were probably some horrendously drafted amendments by the bucketful during the last couple of weeks.

I am pleased to have the opportunity to take part in our detailed line-by-line scrutiny of the Bill. It will be with a sense of déjà vu that I am sure the hon. Member for Stretford and Urmston also feels, having sat in the same Public Bill Committee this time last year. The real shame is that, this time last year, nobody listened to a thing that we said, and this Bill is in the same form as it was back then. Looking around the room, however, I see a much more discerning Committee this year, so I am filled with optimism that we may indeed be able to deliver some change.

We have serious concerns; we do not just make things up. As Opposition MPs, we have lots of concerns that stakeholders have raised with us. My preliminary point is that the two previous Immigration Acts that passed all the way through Parliament, in 2014 and 2016, contributed in a very serious and significant way to the Windrush scandal. In her review of what happened, Wendy Williams highlighted all the warnings that came from the same stakeholders about the problems that those Bills would cause. Indeed, she quoted from some of the contributions made by Opposition Members during the passage of the Bills. Hon. Members might not agree with everything we say, but sometimes we are worth listening to, even if we do not manage to achieve change in this Committee. I plead with the Home Office and members of the Committee to engage seriously with the concerns that we are flagging up.

At the weekend, the former Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), wrote that

“the Home Office has yet to implement the process of root and branch cultural change necessary in the aftermath of Windrush.”

I hope that, during the passage of the Bill, we receive some signals that the cultural approach of the Home Office, and its attitude to listening, is changing.

Clause 1 is the Bill in microcosm. I will not repeat my entire stage 2 speech, which I am sure hon. Members followed very closely indeed, but I take your advice on scope, Sir Edward. I am sad to say again that the SNP totally opposes clause 1, because it brings to an end what we regard as a valuable, simple and well-functioning immigration system of free movement. As a result, it extends what is a complex, expensive and unjust domestic system to EEA nationals. That is bad for the individuals caught up in it, who will face prohibitive fees, complicated procedures, broken families and diminished rights, but it is also bad for the economy. I do not think that any hon. Member present who paid attention to the evidence that we heard on Tuesday can remain 100% enthusiastic about the Government’s proposals for the immigration system come January. It will be an abject nightmare for many industries that have already been totally decimated by the coronavirus shutdown. We did not even hear from the tourism and hospitality industries, which are at the forefront of facing the challenges.

Clause 1 is also bad for Scotland—for our population growth, demographics, economy and tax base. If the task had been to design an immigration system for Scotland alone, nobody in their right mind would have come up with this one. The same is true—probably even truer—of Northern Ireland, with its land border with a country where free movement will continue. We will explore all these issues as we go through the Bill in more detail and discuss the amendments and new clauses that have been tabled. From my point of view, there is nothing much to celebrate and lots to regret about clause 1, and indeed schedule 1, and we oppose them both.

--- Later in debate ---

[Holly Lynch]

I am grateful to the Minister for a lot of the clarification in his opening remarks. We welcome clause 2, and its content is indeed necessary. We will, however, be asking for some further assurances through new clause 27, largely to reaffirm what the Minister has just said. That new clause asks the Secretary of State to

“publish a report detailing the associated rights of the Common Travel Area”.

We heard from both Alison Harvey and Professor Ryan that although clause 2 is welcome and offers a degree of clarity as free movement rights are stripped away from both Irish and British citizens, as well as those in Northern Ireland who identify as both, there are some outstanding areas that require further clarification, including the scope of reciprocal rights under the common travel agreement. Clause 2 shows that many of the rights granted to Irish citizens through the common travel area are facilitated through freedom of movement. If not in the present Bill, do the Government plan to legislate to enshrine the provisions of the common travel area as reciprocal rights, rather than purely as changeable administrative arrangements, and, if so, when?

As Professor Ryan highlighted on Tuesday, more must be done to clarify the status of acquisition of British nationality, for British-born children, children born to Irish parents and Irish citizens wanting to naturalise. At the moment it is incredibly hard to ascertain the exact immigration status of those individuals and to know, for example, whether they have time limits on their visas or have ever breached immigration laws. If the Government truly want to redefine the British immigration system, they must answer those questions to clear up the ambiguity surrounding British citizenship law.

I am sure that the Minister will understand some of the nervousness about deportations. He referred to it in his opening remarks on the clause. To give the Committee some context to work with, I asked Professor Ryan at column 35 in the evidence sitting on 9 June whether he was aware of examples in recent history when an Irish citizen had been deported, either because a court had recommended deportation on sentencing, or because a Secretary of State had concluded, owing to the exceptional circumstances of the case, that the public interest required deportation. If I am not mistaken, the Scottish National party spokesperson also put a similar question to Alison Harvey. No specific examples could be provided. If the Minister is aware of any, I should welcome it if he would share them with the Committee to support the discussion.

We still do not know the Government’s proposed threshold for deportation of Irish citizens. It would be helpful if that could be clarified. Ideally, the Government would enshrine that in legislation or at least make a commitment during the passage of the Bill to state explicitly how deportation and exclusion will be used for Irish citizens in future. Professor Ryan has said that owing to the arrangements in the common travel area the threshold for deportation and exclusion of Irish citizens is notionally higher than that of other nations. Seemingly, it is more rarely, if ever, exercised.

As I have mentioned, the Good Friday agreement allows people born in Northern Ireland the right to identify exclusively as Irish or British, or as both. Irish citizens are referred to in the Bill, so can we assume that that reference includes Northern Ireland-born citizens who do not identify as British? If so, will the Minister make it clear in the Bill that people in Northern Ireland who identify exclusively as Irish, per the Good Friday agreement, are exempt from deportation and exclusion?

Without such a commitment, there is inevitably some anxiety. Alison Harvey made a case for mitigating the risk through the right to abode. If that were implemented, it would guarantee a raft of citizenship rights, so I welcome feedback from the Minister on that approach. As well as clarifying the status of Northern Irish citizens who identify solely as Irish, the right to abode would also alleviate the loophole through which someone with an Irish passport is not granted protections on arriving in the UK, because they have travelled from a country outside the common travel area.

We are supportive of the clause and will not oppose it, but will return to some of its content in debate on new clause 27.

[Stuart C. McDonald]

Given what the Minister and shadow Minister have said, I can, I hope, be helpfully brief. I am grateful to the Minister for clarifying the position on deportation, but the shadow Minister raises a reasonable point. The Minister has clarified the policy— but why not put it on the face of the Bill? I very much welcome the Minister’s confirmation of how Irish nationals will be able to come from outside the CTA with family members. It is a welcome clarification.

I want briefly to refer to the broader issue of common travel area rights. We are often told about the historic common travel area, and the fact that the rights go back many decades. That is true, but in recent years most of those rights have become embedded in and entangled with free movement rights. In the Bill, we are repealing those rights but not replacing them with common travel area rights. The Government keep talking about reciprocal rights, but we need them to be set down in statute.

So far, as the Minister said, there seems to be a non-binding memorandum of understanding with the Government of Ireland, and a Government position paper, setting out the fact that there will be rights to work, study, social security and healthcare access, and vote. For the Irish Human Rights and Equality Commission, essentially those CTA rights are “written in sand” and for the Committee on the Administration of Justice the CTA can be characterised by loose administrative arrangements of provisions that can be altered at any time. So we need to return to this issue of when we will actually see a detailed scheme of rights for the common travel area.

There is some urgency about this matter, because at the moment, for example, there are people in Northern Ireland who choose to be Irish citizens and who have the option of applying under the EU settled status scheme, but they will have to make that decision without really knowing how the benefits of the EU settled status scheme compare with the benefits of the common travel area scheme, because that has not been spelled out in great detail yet. There are practical issues that have been flagged up by the organisations I have mentioned about cross-border rights to access healthcare and education, and so on. All these questions need to be answered, and fairly urgently.

Finally, I will echo what the shadow Minister said about Alison Harvey’s evidence on the right of abode, and I would be interested to know whether the Government are considering achieving some sort of resolution of these issues by using the right of abode. However, we will return to these issues when we debate the new clause that the shadow Minister has tabled.

I welcome clause 2, but we still have a considerable way to go in making sure that the common travel area persists and works properly, and that folk know where they stand.

--- Later in debate ---

[Holly Lynch]

There is so little in clause 3 that we will not make a contribution to it.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Clause 4

Consequential etc. provision

[Stuart C. McDonald]

I beg to move amendment 2, in clause 4, page 2, line 34, leave out “appropriate” and insert “necessary”

This amendment would ensure that the Secretary of State may only make regulations which are necessary rather than those which the Minister considers appropriate.

[Stuart C. McDonald]

I am pleased to speak in support of the amendments. At this stage I expect to get the Government Members excited because I am urging them to take back control, by which I mean take back control of immigration policy from the Home Office and keep MPs in a job. Like most hon. Members I have become familiar with the broad powers of delegated legislation and sweeping Henry VIII powers in recent years through both immigration legislation and more recently through Brexit. The Government are taking increasingly more and more powers to rewrite not only subordinate legislation but primary Acts of Parliament with very little constraint. I do not think that anyone here would dispute that in certain circumstances such powers can be sensible and useful, but they should be exceptional and limited. Instead, the practice has become so routine that if it goes on we might as well shut down Parliament or end its role as a legislator.

I am grateful to the witnesses who spoke on Tuesday and to the organisations that provided briefings, including the Law Society of Scotland, Amnesty International, the Immigration Law Practitioners’ Association, Justice, Liberty, the Equality and Human Rights Commission and others. There are big concerns about this clause.

In tabling the amendments I have also relied on the report of the House of Lords Delegated Powers and Regulatory Reform Committee and its 46th report in the last Session, which was an analysis of the predecessor Bill. It is fair to say that their lordships were not impressed with clause 4. It is noticeable that they went out of their way to prepare the report in advance of Committee stage so that we could benefit from their advice. I regret that the Home Office is still not listening to that sage advice at all.

The sweeping power is set out first in clause 4(1), where the Home Secretary can make any provision that she thinks “appropriate” in relation to the whole of part 1 —in other words, related to free movement. Clause 4(2) makes it clear that this can include amending any Act of Parliament as well as retained EU legislation. There are various subsections about the procedures that would be required to be used when exercising those powers, which is something that I suspect we will return to later.

The word that appears several times in the House of Lords report is “significant”. Their lordships had significant concerns about significant delegation of powers from Parliament to the Executive on such a significant issue that concerns a significant number of people. Amendments 2, 3, 20, 21 and 4 are designed to cut those powers done to size and to keep MPs in a job. It is quite informative to look at the explanatory memorandum to the same Bill from this time last year. The memorandum explains, for example, how the powers would be used to set up appeal rights for EEA nationals. All those things have already been taken care of in the year that has passed, yet nothing has changed in the formulation of clause 4. The Government still say they need such powers, even though they have done everything that they envisaged using those powers for in the explanatory memorandum from this time last year.

The European Union (Withdrawal Agreement) Act 2020 was passed at the start of the year, and it contains a whole part on citizens’ rights of residence, frontier workers, deportation appeals, non-discrimination and so on. It includes extensive powers of delegated legislation as well, but at least they are constrained by the requirement that they should be exercised in order to implement the provisions of the withdrawal agreement that relate to citizens’ rights. As I say, a lot of what the Government originally envisaged they would use these powers for has already been accomplished.

Amendment 2 refers to an argument that we have had many times before. It is about requiring use of the powers to be “necessary” rather than merely considered appropriate by the Minister. Again, there is no genuine objection to being able to make rules if we suddenly have to make changes for a deal or a no-deal situation in the future relationship, but that should not just be at the whim of Ministers deciding what is appropriate and what is not. Their lordships and various stakeholders have recommended a test of necessity, and that is what is in amendment 2.

Amendment 3 is probably the most critical amendment and takes out the words “in connection with”. I refer again to the House of Lords Committee report, which said:

“We are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations”.

So their lordships are not very happy at all with what the Government propose.

Amendments 20 and 21 come from the House of Lords Committee report, but there have been perfectly sensible suggestions from Amnesty International, with similar ideas from other stakeholders. Amendment 20 would limit the scope of powers so that regulations cannot be made in relation to any old provision in part 1; they must relate specifically to schedule 1. Again, I emphasise that it can be acceptable to have limited powers in order to tidy up the statute book and the detailed list of provisions in the schedule. As matters stand, however, clause 2 means that we could have sweeping changes made to the rights of Irish citizens on the whim of the Secretary of State. Indeed, on the face of it, delegated powers could be used to alter clause 4 in order to increase the Executive’s powers yet further. That cannot be acceptable.

Amendment 21 would put a simple sunset clause of one year on the use of these powers. Should the Government have not tidied up the statute book by this time next year, something seriously wrong will have happened. Alternatively, something seriously positive will have happened and we will have extended the transition period by a couple of years. In either case, there will be plenty of time to legislate afresh. Everyone gets the argument that sweeping powers should not be left on the statute book forever; hence the sunset clause.

Amendment 22 puts a sunset clause on changes made by subordinate legislation. If the Minister really thinks there is such a rush that he cannot proceed by primary legislation, he should make the regulations. He should then come back to the House of Commons with a proper Bill, so that we can do our job as legislators and decide whether to keep those provisions in force or let them lapse.

In some ways, I am just sticking up for MPs. I want us to be able to continue to be the primary legislators in the field of immigration law and that we should start taking back some control from the Home Office.

[Holly Lynch]

I rise to speak to amendment 12, as well as demonstrate support for amendments 2 to 4, which also have our full support. With your permission, Sir Edward, I will focus my comments on the amendments relating to the transfer of powers in clause 4, and my hon. Friend the Member for Stretford and Urmston will speak specifically to amendment 15, which is part of this group but is on a slightly different issue and relates to the impact that this legislation will have on children.

It is a pleasure to follow the SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, who made an articulate speech on the concerns about the Henry VIII powers. The reason we are all here physically today and not fulfilling our duties from home is this Government’s commitment to parliamentary scrutiny. Unfortunately, this transfer of powers seems to be inconsistent with that approach.

The arguments were incredibly well rehearsed on Second Reading during the previous Parliament, in Committee and in the House of Lords Delegated Powers and Regulatory Reform Committee, as we have already heard. That is why it is so disappointing that the Government have not reflected on that feedback and adapted their approach.

Clause 4 as it stands confers an extremely wide power on the Home Secretary to make whatever legal amendments they consider appropriate in consequence of, or in connection with, any provision of the immigration part of the Bill. That includes the ability to amend primary legislation. I am sympathetic to the Government’s stated intention behind the clause—namely, that it will ensure coherence across the statute book following the substantial changes brought about by the ending of free movement, and deliver the required tweaks to legislation. However, clause 4 is drafted so widely that it could relate to almost any aspect of immigration law, and given that there is no time restriction on the clause or the powers within it, the concern is that there is potential for those powers to be used far beyond the aims of this Bill.

Adrian Berry of the Immigration Law Practitioners’ Association, whom we heard from earlier this week, commented on the powers referenced in the Bill, including in clause 4(5). During that evidence session, he said:

“How is the ordinary person, never mind the legislator, to know whether the law is good or not…if you draft like that? You need to make better laws. Make it certain, and put on the face of the Bill those things that you think are going to be disapplied because they are inconsistent with immigration provisions. There must be a…list in the Home Office of these provisions and it would be better if they are expressed in the schedule to the Bill.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 52, Q106.]

He went on to confirm that any responsible Opposition would have to table the amendments in this group in the absence of that list.

As we have heard, amendment 2 would replace the word “appropriate” with “necessary” in clause 4, line 34 on page 2 of the Bill, and amendment 3 would leave out “, or in connection with,” on the same line. With amendment 4, we seek to leave out subsection (5) altogether. We are also supportive of amendment 20.

On the specific proposed changes, as has already been said, the Lords Delegated Powers and Regulatory Reform Committee considered the almost identical version of the Bill in the 2017-19 Parliament. It said:

“We are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations”.

The Committee expressed significant concerns about subsection (5), recommending that it be removed altogether, which is exactly what we are seeking to do,

“unless the Government can provide a proper and explicit justification for its inclusion and explain how they intend to use the power.”

The reason is that

“it confers broad discretion on Ministers to levy fees or charges on any person seeking leave to enter or remain in the UK who, pre-exit, would have had free movement rights under EU law.”

I argued on Second Reading that this approach is bad not just for parliamentary democracy, but for our public services and for the economy—a sentiment shared by the London Chamber of Commerce and Industry in an evidence session this week. Parliamentary scrutiny is the most effective way for stakeholders to work with MPs to shape legislation to respond to the needs of the country, and they are being denied that opportunity with the transfer of powers in this clause. The Immigration Law Practitioners’ Association, the British Medical Association, London First, Universities UK, the National Union of Students, trade unions and the Children’s Society are just a sample of the cross-section of organisations that have all expressed concerns that this transfer of powers to the Executive is not the way to develop quality and robust legislation.

During the attempted passage of the Bill in the last Parliament, the then Minister, the right hon. Member for Romsey and Southampton North (Caroline Nokes), set out a number of reasons why the powers in clause 4 were necessary. As the SNP spokesperson has already said, a number of those reasons have since been addressed, yet the powers remain.

Since then, almost all those powers have been rendered irrelevant by the passage of other pieces of primary and secondary legislation. I will rebut just a couple of arguments. The then Minister said:

“In the unlikely event that we leave the EU without a deal, the power will enable us to make provision for EEA nationals who arrive after exit day but before the future border and immigration system is rolled out”.

There is now a deal on citizens’ rights in place, so they will not be affected by negotiations on the future relationship.

The then Minister also said that the clause would allow the Government to

“align the positions of EU nationals and non-EU nationals in relation to the deportation regime”.—[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 26 February 2019; c. 183-84.]

However, regulation 17 of the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 makes amendments to deportation thresholds, so it is unclear why any further transfer of power is necessary in the Bill.

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

Debate between Holly Lynch and Stuart C McDonald

Committee stage & Committee Debate: 4th sitting: House of Commons
Thursday 11th June 2020 Public Bill Committees

[Stuart C. McDonald]

We are back to the nuts and bolts of delegated legislation. This time, rather than considering the scope of the powers, we are looking at the procedures that should be used when they are exercised. Amendment 5 is designed to keep MPs in a job: we should be ensuring that we maximise our role in scrutinising what the Government do with their power to make laws.

Clause 4(6) to (10) sets out the procedures for making these regulations. I apologise in advance, Mr Stringer, if I get some of the terminology wrong. Even after five years in this place, I still regularly confuse my made affirmative, affirmative and negative procedures. As I understand it, the most extreme made affirmative procedure is allowed for the first set of regulations that would be made under the clause. That means that the Government would be able to bring rules into force immediately, before MPs had the chance to scrutinise the proposals. MPs would then have 40 days to pass an affirmative resolution to keep the rules in place. No good parliamentarian should ever be comfortable allowing the Government to bring rules into force before we even have the chance to look at them.

The more usual affirmative procedure would apply to subsequent draft statutory instruments through which the Government were amending Acts of Parliament. That too is a really drastic power, but it would mean that nothing came into force until we positively approved it. Although I object to Henry VIII powers for rewriting Acts of Parliament, if they must exist, that should be the method for regulation making here.

Other regulations that do not directly impact on Acts of Parliament would use the much less satisfactory negative procedure. Although a draft of those regulations would still be tabled before they came into force, they would almost inevitably do so unless, exceptionally, Parliament prayed against that negative resolution. All these amendments do is ensure that MPs have their say, and have a proper role in scrutinising the Government before regulations come into force, which is important given the very important subject, and the effect that these provisions could have on immigration law. I hope the Committee will be sympathetic to what we argue for.

[Holly Lynch]

As the SNP spokesperson says, this group of amendments, like most of those in the previous group, continues to seek to limit the transfer of powers to the Executive and away from Parliament. We have gone over the arguments against such sweeping Henry VIII powers in principle at length, so I will not repeat those. This group largely seeks to ensure that regulations made under clause 4 are subject to the affirmative procedure, and to leave out subsection (6).

Martin McTague from the Federation of Small Businesses was I think the only witness who said in his evidence on Tuesday that he actually did see some merit in the powers in clause 4, yet when asked further, he was keen to stress that

“the Home Secretary will be answerable to Parliament about the decisions that she or he has made. That would be a way in which Parliament could ensure there was proper scrutiny.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Public Bill Committee, 9 June 2020; c. 14, Q29.]

However, as the Bill stands, proper scrutiny will be missing.

As has been said, proper scrutiny is exactly what we are in the business of in this place. It is why the Government say they have thrown caution to the wind in returning to a physical Parliament when we could have been undertaking our duties from home, as is still the public health advice. If the Leader of the House is such a big fan of parliamentary scrutiny, why are we going to such lengths to avoid it with these powers? Putting changes through the affirmative procedure has to be the way forward if we are to shape legislation for the better and deliver on parliamentary democracy. That is why we support this group of amendments.

--- Later in debate ---

[Stuart C. McDonald]

I beg to move amendment 14, in clause 4, page 3, line 28, at end insert—

“(11) Regulations made under subsection (1) must make provision enabling UK citizens falling within the personal scope of the Withdrawal Agreement, the EEA EFTA separation agreement or the Swiss citizens’ rights agreement to return to the UK accompanied by, or to be joined in the UK by, close family members with whom they lived while residing in the EEA or Switzerland.

(12) Regulations under subsection (1) may not impose any conditions on the entry or residence of close family members which could not have been imposed under EU law relating to free movement, as at the date of this Act coming into force.

(13) References in subsection (11) to the Withdrawal Agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement have the same meaning as in the European Union (Withdrawal Agreement) Act 2020.”

This amendment would mean UK citizens who had been living in the EEA or Switzerland but wish to return to the UK, could continue to be accompanied or joined in the UK by close family members who would otherwise lose their rights (under the Surinder Singh route) because of this Act.

I am being kept busy this afternoon. I am pleased to move amendment 14. Once again, it is all about family. We are talking about what became known as the Surinder Singh route, because of a judgment of the European Court of Justice. I talked in my previous contribution about the unfairness of separation that immigration rules can cause; in the case of the Surinder Singh families, that is coupled with a real sense of unfairness and the loss of a legitimate expectation.

We are talking about UK citizens who have gone to live somewhere in the EEA at a time when the rules were quite clear that the UK was part of the European Union, so there would never be any conceivable difficulty about being able to return to this country with family that they may have settled down with in another EU country.

To my mind, we should say that they had a legitimate expectation when they left that they would be able to return to this country at the appropriate moment with their EU family members. The problem now arises that if they return after the transition period that the Government have put in place—it is better than nothing; that is absolutely true—they will face the £18,600 threshold, which I previously alluded to.

There are folk over there with huge dilemmas to address. The briefing we have had from British in Europe sets out a very typical example. Sarah is a 48-year-old British national living in Germany with her 52-year-old German husband and children. She is the only child of an elderly mother in the UK. Career and schooling reasons mean that she cannot realistically return to the UK by March 2022. What happens if Sarah’s mother becomes so frail or ill that she needs the care of her daughter in five years’ time? Sarah will have a huge decision to make: either to uproot her family at a hugely disruptive and inconvenient time, to come back to look after her mother, or to leave her family behind and come back to look after her mother. Alternatively, she will just have to hope that her mother is able to cope.

Sarah was not negligent in going abroad without taking this future prospect into account when she made the decision to travel and live in Germany, because it just did not arise. We were part of the EU and free movement was always going to be there.

I am grateful for and welcome the fact that the Government have reviewed the immediate cut-off, but 2022 does not give enough time. Why do we not have an open-ended cut-off for the people from this country who have made their lives in other parts of the European Union or the EEA, and let them return here under the regime that was in place when they left? That is the purpose of amendment 14, and I hope it will have a sympathetic hearing.

[Holly Lynch]

Once again, we are very sympathetic to the amendment. As we have already heard, it is not dissimilar to amendment 1, and it would offer reassurance to the 1.2 million British nationals who live in EU countries. Failure to implement measures such as those proposed in the amendment would show the Government’s indifference to British citizens who decided to make their homes and lives in Europe and, as in the example we have just heard, could force people to choose between loved ones there and loved ones here.

The example provided by British in Europe paints a picture of something that is affecting thousands of people and has the potential to affect thousands more in future, as family members age and their circumstances change. The amendment characterises the significance of forming laws and policies; what is discussed and decided on in this building has far-reaching implications and consequences affecting vast swathes of people in their day-to-day lives.

Until March 2022, any citizen going to live in an EU 27 country did so with the security of knowing that if they were to form a relationship and/or have a family, they would have the right to return to the UK with their partner and family, with no or very few conditions attached. That was the point I made to the Minister in challenging and seeking further clarification on some of his points about differences being potentially discriminatory against returning UK citizens and spouses from other parts of the world, not just EEA countries.

As I am sure we can all appreciate, families and relationships can be complex. The provisions afforded to British citizens through freedom of movement would allow any citizen to return to the UK with their partner and family if a situation arose where they needed to do so, potentially at quite short notice. If the UK citizen returned to be either employed or self-employed, there would be no conditions on their return; if they returned to be a student or to be non-economically active, they would have to have sufficient resources not to become a burden on the social assistance system of the UK, and have comprehensive health insurance.

In comparison, under the proposed new immigration rules, spouses and partners who wish to enter the UK with their British partner will have to meet the minimum income requirement of £18,600, and the figure is increased if the family have children. That is a wholly restrictive requirement that will severely deter families from returning and coming to the UK. In some cases, it may stop British citizens returning to the UK altogether.

As highlighted in evidence by Jeremy Morgan, the right of citizens to return with their families to their country of origin was deemed outside the scope of the UK-EU withdrawal negotiations, resulting in a serious inequality between UK citizens in the EU and EU citizens in the UK. Bizarrely, the UK Government are discriminating against their own citizens in this instance, since nationals continue to enjoy their right to return to their countries of origin with their non-EU family members.

Furthermore, EU citizens resident in the UK and covered by the withdrawal agreement also have an unconditional lifelong right to bring in family members, including non-EU members, to the UK, provided that the relationship existed before the end of the transition period. The amendment tabled would address that discrepancy.

The coronavirus pandemic has only heightened the need for the Government to carry out their basic duty to support UK citizens living abroad. What if the pandemic had occurred after 29 March 2022? As countries began lockdown, British citizens in Europe would have been faced with the unenviable choice of remaining or hastily returning to the UK. The minimum income requirement would have meant that many British citizens and their families would have been simply unable to return, despite both global and personal crises.

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

Debate between Holly Lynch and Stuart C McDonald

Committee stage & Committee Debate: 2nd sitting: House of Commons
Tuesday 9th June 2020 Public Bill Committees

[Holly Lynch]

Q Can I put the same question to Jill Rutter? What would need to change so that the MAC was really equipped to respond to these workforce issues?

Jill Rutter: I fully agree that skills policy and immigration policy need to be much more closely aligned. Whether the MAC is the best instrument to do it, given its current remit, I do not know. There are arguments for extending the MAC and bringing in other expertise. At the moment it is very labour market economist-focused—its remit has largely focused on labour market impacts. There are arguments for expanding the MAC.

I also think it is worth looking at the migration skills surcharge, which is a very blunt instrument. It applies to non-EU migrants; employers who bring in non-EU migrants have to pay a surcharge. The money just disappears into the Treasury, and I do not think it incentivises training at all, so that is something to look at as well.

[Stuart C. McDonald]

Q Can I ask a broad question? It will be a slightly controversial one in these surroundings. To what extent are changes in public attitudes to migration over the last 10 years related to politics and the media? Is it not quite striking that towards the middle of the last decade was when public concern about migration was at its highest, and that is probably when the political debate, if I can call it that, about migration was at its height? The tailing off in public concern also tallies with the fact that, since the referendum, migration has not been on the front page of every newspaper or at the forefront of political debate.

Jill Rutter: A whole load of factors influence public opinion. Our national media and political debates obviously have a hugely important impact, but so does what happens locally and your own personal contact with migrants. If you have friends who are migrants and refugees, you have another reference point to add to what is going on and what is being played out on the internet or on social media.

--- Later in debate ---

[Holly Lynch]

Q So the responsible thing for an Opposition to do would be to ask the Government to be explicit in putting all of those implications and those potential changes in the Bill?

Adrian Berry: Yes, because service users—us, the citizens—need to know what the law means. We are entitled to understand that. People who are affected by it need to know what it is. It is not good rule making to do it like this.

[Stuart C. McDonald]

Q Mr Berry, we have just heard some discussion about the possibility of citizens eligible for the settled status scheme not applying for it. For what reasons will people miss the deadline? Can you give us a flavour of why this might be a significant problem?

Adrian Berry: They might be leading disordered lives. They might have things happening in their lives that concentrate their minds elsewhere—family difficulties, work difficulties. They might be affected by coronavirus. They might have mental health impairments. They might be long-term sick. They might be old. They might be demented. There is a whole host of reasons that are part of the ordinary warp and weft of life why somebody might miss a deadline. Not everybody has my focus on the interests of the European Union (Withdrawal) Act and its implementing provisions. Ordinary people do not. There needs to be a benevolent regime that allows them to make late applications.

--- Later in debate ---

[Holly Lynch]

Q Thank you. Your organisation asks for clarity about what people’s status and rights will be between the end of the transition period and the closing of the settlement scheme at the end of June. What are your members’ anxieties about that period?

Luke Piper: The Bill brings freedom of movement to an end at the end of this year, but it is not clear what legal status people will have between the end of the transition period, which is at the end of the year, and the end of June—the end of the grace period. There has been no clarity about, or understanding of, what legal rights people will have. We have simply been told that certain checks, such as on the right to work, will not be undertaken, but it is not clear to us or our members how people will be distinguished, both in practice and in law.

[Stuart C. McDonald]

Q Mr Piper, we have heard from the Home Office on the number of applications. We, like you, congratulate the Home Office on achieving significant reach. The problem, of course, is the number of people who will not apply in time. Are you able to give the Committee any indication of the scale of that problem, and who can we expect to be in that number?

Luke Piper: I caught the majority of the question, but let me repeat what I think you are asking: do we have an understanding of the number and type of people who will not apply on time? Is that correct?

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[Holly Lynch]

No problem. The Minister had presented a conundrum, but we are saying that if those children—bearing in mind that they have had a very difficult start in life—were granted settled status in a declaratory system through the local authorities, and they had both digital confirmation of that and physical proof, it would resolve the problem that the Minister put to you.

Lucy Leon: Yes. We are very much in agreement. That is why we support the 3million recommendation on physical documents as well.

[Stuart C. McDonald]

Q Thank you for calling in, Lucy. You are proposing that the status of these kids is set out in law, but they should apply in order to get proof of that status. Is that right?

Lucy Leon: Yes, that is what we are suggesting.

--- Later in debate ---

[Holly Lynch]

Q We have heard evidence this afternoon from other witnesses regarding their concerns about some of the Henry VIII powers in the Bill. May I ask you to share your thoughts on those, and what they mean not only for parliamentary democracy, but for practitioners of law? Do you have concerns about them?

Alison Harvey: Very much the concerns that Mr Berry expressed about certainty. If it is said that provisions of retained EU law are not compatible with the Immigration Act, please can we have a list? Tell us what they are. You must know, Home Office, otherwise you are not going to be able to operate the system. As he said, we had the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020, both of which essentially give us powers to save EU law. They also give us powers to knock out retained EU law bit by bit, so what is the point of the Bill at all, in substance terms?

I think the point must be, because immigration is a sensitive area and because it involves people, to give you the opportunity to put in place safeguards. I suppose the Bill goes beyond the European Union (Withdrawal) Act and the European Union (Withdrawal Agreement) Act in that it would allow you to build a new system. There are wider powers of delegated legislation. I think most of the repeals could have been done under those Acts. If you want to test that, you go back to March, when the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 were passed. Look at some of the things that they do: “Let’s give all Gibraltarians a right to apply for British citizenship.” There are big chunky powers in those regulations that are not in the Bill.

The Bill is an opportunity to put some brakes in. What is astonishing is that the Bill looks almost the same as it did last time it appeared; yet last time we did not have a withdrawal agreement. All the wait and see markers that justified not putting something in primary legislation have gone. Similarly, although the Home Office delegated powers memorandum has got longer it has produced, for example, absolutely no more substance on why the powers on fees are needed. The Delegated Powers and Regulatory Reform Committee said that this is so unsubstantial you cannot even say it is a skeleton.

There really is no justification to explain why there possibly need to be those powers. It creates tremendous uncertainty. It certainly creates lots of opportunities for litigation; to go in and argue that, no, something is not incompatible. That does not seem to me helpful at all.

Ian Robinson: Alison has said everything that I could and more.

[Stuart C. McDonald]

Q Alison Harvey, may I first go back to the idea that Professor Ryan was speaking about earlier: the notion of persons of Northern Ireland? The reason that would be useful would be to explain who has certain rights, in terms of family immigration rules or protections against deportation, for example, without having to claim British citizenship or to identify as a British citizen under the Belfast agreement.

Alison Harvey: We have two groups. Proposed new section 3ZA to the Immigration Act is about the Irish in Britain, wherever born—all the Irish; anyone who holds an Irish passport—and it gives them protection wherever they enter the UK, so that if they come from Belfast and go for a weekend in Paris they have not lost all their rights just by spending a weekend in Paris, which technically in law at the moment they have.

The other group are the people of Northern Ireland, who are the people born on the soil of Northern Ireland. Those people, under the Belfast agreement, have the right to identify as British, Irish or both. The question is how you give effect to that right, because at the moment it is argued that you give effect to it by going through a renunciation process, which costs money and makes it very difficult for somebody to identify solely as Irish.

We have provided in the EU settlement scheme for the people of Northern Ireland—those who are born there—to be treated in the same way for family immigration purposes as EEA nationals. That is a fairly short-term right—not a short short-term right, but obviously one that is on the way out because we are leaving the EU and that advantage will disappear over time; it will not apply to new arrivals and it will not apply to the people of Northern Ireland who form subsequent relationships.

So we have said that we will make it not matter whether you are British or Irish, or both, because you will not be at a practical disadvantage. But what people would like to be able to do is identify as Irish without having to give up a British citizenship they never felt they held. That was a point made by Emma DeSouza in her litigation. That litigation ended because it was a case brought by her partner about his EU law rights. So although their arguments were about her ability to identify as Irish, that was not the crux of their case; their case was an EU case, so it died with the changes.

I have put forward in my paper a series of proposals as to how we could fairly simply amend the law to give effect to that aspiration, without in any way damaging the aspiration of those in Northern Ireland who say, “I in no way want to be treated any differently from anyone else anywhere else in the UK”. I think we can square that circle.

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

Debate between Holly Lynch and Stuart C McDonald

Committee stage & Committee Debate: 1st sitting: House of Commons
Tuesday 9th June 2020 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

Q Bearing in mind what you have just said, what are the things that you would really like changed about the Bill? Alternatively, what would the Government need to do to support you to manage the impact that it will have on your businesses?

Matthew Fell: There are a few things that we would like to see in the proposed new immigration system. We believe that a temporary route for people to come and work in this country would be a helpful addition to the system as it is currently set up.

Secondly, I would say to accelerate efforts to streamline the proposed approach. The vast majority of businesses have never previously had to engage with the visa system; something like only 30,000 businesses in the country have grappled with it so far, because we have lived and worked with free movement of people for so long. It will be a big change, so I would say to accelerate the changes to streamline and improve the system, reduce red tape and so on.

The final piece, just to reiterate, is to accelerate efforts to get clarity and detail out there and known to businesses as soon as possible, so they can begin to familiarise themselves, prepare and get ready.

[Stuart C. McDonald]

Q Last year, when you gave evidence to the Bill Committee, you described tier 2 as a

“restrictive, complex and burdensome system.”––[Official Report, Immigration and Social Security Co-Ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 67, Q178.]

Could you say a little more about what you mean by that?

Matthew Fell: There are a couple of areas. It comes down to some of the red tape issues, and there are a few examples. The initial sponsor licence, businesses tell us, is very document-heavy, in their words—for example, on the HR practices side, having to evidence, track and monitor things that small businesses feel are perfectly obvious. If they employ 10 or up to 20 people and one person is missing, that is self-evident; they know if a person is not there.

There is quite a lot in the reporting requirements that could be streamlined. Lots of people say to us, “We have to report it if a migrant’s pay has increased, and we don’t quite understand why. If they were already given the green light because they cleared the salary threshold, why would we need to report that that has increased?”

Thirdly, people feel that the volume of documentation required to be kept on file, including details such as notes from interviewing candidates, is quite onerous. Those are some of the examples of red tape burdens that we would welcome efforts to streamline.