Investigatory Powers (Amendment) Bill [Lords]

Debate between Joanna Cherry and Stuart C McDonald

2nd reading
Monday 19th February 2024 Commons Chamber

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

Let me start with two thank yous. First, let me put on record my party’s gratitude to the intelligence services and law enforcement organisations that work so incredibly hard to keep all our citizens safe in the face of constantly changing and developing threats. Secondly, I thank all those who took part in the reviews of the 2016 Act that have informed the Bill. However, as Lord Anderson said in his own review, they should be a starting point for parliamentary scrutiny and debate rather than a finishing point.

Although any opportunity to revisit and improve the 2016 Act would generally be welcome, my party has serious concerns about certain provisions in this amendment Bill. In short, while it is constantly presented as “updating”, and as protecting and making efficient pre-existing powers, we fear that the reality is a very significant expansion of what are, we must remember, already extraordinarily wide powers by international standards. There are significant privacy and human rights risks, and the danger of increasingly widespread suspicionless surveillance. We fear that we may be handing invasive powers to intelligence and law enforcement agencies not because the powers are necessary or essential to their work but because they are convenient, and that is not striking the right balance.

All this is consistent with the very detailed and principled privacy and human rights concerns that my party raised in relation to the 2016 Act itself—particularly in the speeches made by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who is here to take part in the debate again today. As will be the case today, we did not oppose the Second Reading of that Bill, but in the absence of important amendments, or concessions and reassurances—again, as with the 2016 legislation—we keep open the option to oppose the current Bill at a later stage.

Today I will focus on concerns relating to bulk personal datasets, and on notices relating to changes in telecommunication services. I will also briefly flag up our concerns about internet connection records and changes to the offence of unlawfully obtaining communications data. My party also believes that this Bill provides an opportunity to revisit the whole issue of snooping on parliamentarians, if we are bold enough to take it.

I shall turn first to bulk personal datasets and part 7 of the 2016 Act. In short, we struggle to see that the proposed changes have been shown to be necessary. We fear that they will instead create even larger gaps in the oversight regime in relation to these capabilities. A whole host of concerns arises in relation to the provisions of clause 2 and the concept of data in relation to which there can be

“low or no reasonable expectation of privacy”.

Bluntly, I struggle to see how a decision maker is supposed to assess people’s reasonable expectations of privacy, and when we say “people” we can be talking about hundreds or thousands of people or potentially several million people. Within that group of individuals there will be many varying attitudes to further privacy, and the data related to individuals could vary hugely from the mundane to the deeply personal. It may be that there is supposed to be some type of “reasonable person” test applied, but is that reasonable person black, gay, Jewish or indeed a trade unionist? How are potentially very different subjective attitudes to be accounted for? These might seem like odd questions, but the experience in the United States of America, where a similar test is involved, proves that these questions are very real indeed. Is it a general question of privacy in relation to the data or a more specific question of expectations of the use of that data by intelligence services? What precisely is low expectation? This seems to be an impossible assessment to undertake in any realistic or meaningful sense.

[Joanna Cherry]

I thank my hon. Friend for his kind comments earlier. As usual, he is making a very forensic speech. On this issue of a reasonable expectation of privacy, does he agree that clause 2 and clause 11(3) seem to be based on a legal misunderstanding that people lose their right to privacy when they happen to share certain information with someone else? He will be as aware as I am that that runs contrary to the jurisprudence of the European Court of Human Rights and that, by contrast, the Court has actually said that privacy includes

“the right to establish and develop relationships with other human beings”.

Does he agree that it is important to ensure that this Bill is commensurate with our obligations under the European convention on human rights?

Illegal Migration Bill

Debate between Joanna Cherry and Stuart C McDonald

Tuesday 11th July 2023 Commons Chamber

[Stuart C. McDonald]

I absolutely forgive you for that, Mr Deputy Speaker, and I offer my apologies to the Chair of the Home Affairs Committee. I look forward to hearing her remarks shortly.

It is a pleasure to follow the right hon. Member for Maidenhead (Mrs May), and I echo everything she said about modern slavery. I would like to say it is a pleasure to be taking part in a debate on this Bill again, but unfortunately it most definitely is not. Members will not be surprised to hear that the position of my party is that this remains a rotten, utterly misconceived and cruel Bill that will not stop boats but will cause immense human suffering to people who have fled persecution and harm. For the reasons we have just heard, it is a traffickers charter. It has been rushed through Parliament in a most appalling way, without consultation or proper scrutiny.

Although the House of Lords has done some decent work to date, forgive me if we are not popping the champagne corks at this stage. The 20 Lords amendments add a bit of polish, but they barely scratch the surface of the problems with the Bill, and experience tells us, unfortunately, that their lordships will be bargained down to three or four moderate concessions. They have already passed up the chance to refuse the Bill a Second Reading, with Labour peers abstaining for utterly unconvincing reasons. If it was a revising Chamber with any sort of teeth or credibility, it would at least be using its powers to delay this Bill and let voters decide this issue for themselves at the next election.

In that context, it is vital that we remember during today’s debate and the whole ping-pong process that only one solitary sentence in the Government’s 2019 manifesto referred to asylum. It was a very benign sentence:

“We will continue to grant asylum and support to refugees fleeing persecution, with the ultimate aim of helping them to return home if it is safe to do so.”

That was it. This Bill, and every single one of the Government’s motions to reject the Lords amendments, is completely and utterly contrary to that pledge. Without the amendments, the Bill will essentially stop the grant of asylum to almost anyone. Instead of offering support or an assisted return home to most refugees, it will enforce unlimited detention at the whim of the Home Secretary, permanent limbo, or threatened removal to Rwanda. Even children and trafficking victims are not to be spared, and the consequences for them will be horrendous.

This outrageous Bill, which rides roughshod over international law without any electoral endorsement, is precisely the sort of Bill that the House of Lords should be voting down and delaying. We can make that less necessary by agreeing to all the Lords amendments. That is the least we should do, and it really should not be too much to ask.

As we have heard, we are talking about amendments that will ensure compliance with our international obligations under vital international treaties such as the refugee convention, the European convention on human rights, the trafficking convention and the convention on the rights of the child. We are talking about basic respect for the rule of law, and my party wholeheartedly endorses Lords amendment 1, which incorporates those obligations into the Bill.

[Joanna Cherry]

When the Minister was asked about Lords amendment 1, he said that it “goes without saying” that the Government adhere to their international obligations, but they have not been able to certify the Bill as compatible with the ECHR and the cross-party Joint Committee on Human Rights, under my chairmanship, said that the Bill risks breaching a number of our binding international human rights obligations. Is it not the case that, as things stand, the only way we have of putting that right is to support Lords amendment 1?

[Stuart C. McDonald]

I absolutely agree. The most obvious example—I would say it is blindingly obvious—is the trafficking convention. That says that we must provide support to victims of trafficking, yet here we have a Bill that says the opposite. We are going to say, “Victim of trafficking or not, you are not getting support.” That is a blatant contravention of the trafficking convention, and that is why we need the treaties in Lords amendment 1 incorporated into clause 1.

Illegal Migration Bill

Debate between Joanna Cherry and Stuart C McDonald

Committee stage
Monday 27th March 2023 Commons Chamber

[Joanna Cherry]

The Minister has taken a careful note.

[Stuart C. McDonald]

I notice the Minister is listening very carefully indeed.

Why is there a “compelling evidence” requirement? More importantly, is that not totally inconsistent with the test of real risk? That is the point of amendment 83. The danger is that even a probability of “serious and irreversible harm” will not be enough because of the type of evidence that can realistically be provided in the ludicrously tight timescale provided for.

On timeframes, we have various amendments to challenge the time periods that have been formally set out by the Government. The notion that eight days is enough time for an application is for the birds, as we know from the chaotic processes used during previous attempts to remove people to Rwanda, when many who were served notice barely understood what was happening. Language barriers, difficulties in access to solicitors and legal aid, the requirements of prescribed forms and demands for compelling evidence in the application mean that eight days will never happen. Those processes give rise to the risk that even those who could in theory make a challenge will miss out unjustly.

On that very important point, can the Minister provide clarity on how he will ensure that legal advice is accessible and, importantly, what his Government’s position is on the availability of legal aid? Those are hugely important issues that are not really touched on in the Bill.

Given the ludicrously restricted timeframes, the restrictions on “out of time” claims in clause 44 are frightening. Our amendments from amendment 101 onward seek to challenge that. This time “compelling evidence” of a “compelling reason” for missing the eight-day deadline is required. What on earth does that mean? Is an inability to understand the notice, language difficulties or the impossibility of finding a solicitor sufficient? More fundamentally, are the Government saying it is okay to remove someone who is certainly going to face “serious and irreversible harm” just because they were a few hours late with the paperwork and did not have a decent excuse for that? It makes absolutely no sense.

The seven-day timeframe for appeals to be lodged in clause 47 is equally absurd for all those reasons. Again, how will access to legal advice and legal aid be ensured? Who did the Government consult when putting together that challenging timeframe? Why have the Government chosen to bypass the first-tier tribunal? Why are the Government suggesting using first-tier employment law judges to assess difficult issues of removal and serious harm?

Some will have an even more difficult route to challenge a refusal if the Home Secretary decides that a claim is “clearly unfounded”. The clauses do not seem to make any sense. If, as seems to be the case, to make a valid application someone needs to provide compelling evidence of harm, it is difficult to see how any valid application containing such compelling evidence can be deemed clearly unfounded. Going beyond that, the grounds for appeal to the upper-tier tribunal are, again, objectionably difficult. Just to get permission to appeal, compelling evidence of serious or irreversible harm is required, assessed on the papers with no further right of appeal. Our amendments to clause 43 seek to rectify that.

We object to the Bill instructing the tribunal how to do its work, in particular how to make assessments of fact. Judges—not the Secretary of State—should determine what new matters can be considered, and what evidence and facts are relevant to their decisions. Our amendments to clauses 46 and 47 and various other clauses seek to protect the independence of the tribunal. We object strongly to the ouster clause in clause 48, in particular the restrictions on the supervisory jurisdiction of the Court of Session.

Amendments 100 and 108 seek to challenge restrictions on onward rights of appeal. These are serious and significant issues of profound importance. Removing the oversight of the courts is unacceptable and unconstitutional. We had a well-developed and functioning system of appeals and judicial oversight. The Government should stop dismantling it. Instead, the Bill will leave most people seeking to assert their rights able to do so only after they have been removed. The notion that such challenges can be successfully undertaken from thousands of miles away is absurd.

The fundamental question is, what happens if someone is successful in making a suspensive case? All that clause 45 states is that they cannot be removed; it does not allow them access to the asylum process or any other assessment of their case. They, like tens of thousands of others who cannot be removed simply because there is nowhere to remove them to, will be left in limbo—a limbo that is disastrous for the taxpayer but life-destroying for the individuals involved. A desperate outcome from a desperate Bill.

Finally, although we support almost all the other amendments and new clauses tabled by Opposition Members, we have concerns about new clauses 23 and 25. New clause 23 would require the Secretary of State to use her broad discretion to put in place a fast-track asylum procedure for so-called “low grant-rate countries”. It contains an amazingly wide definition of a low grant-rate country, which would include nationalities where 49% of applicants had successfully sought asylum.

New clause 25 has aspects that are fine, but crucial to what it tries to do are co-operation agreements for the removal of people who have had claims declared inadmissible. However, there is no definition of “inadmissible” separate from the definition in clauses 2 and 4. That goes to the heart of all of the problems with the Bill. We will continue to listen carefully to what is said about those new clauses, but we are concerned that they need further work.

In short, we oppose every aspect of the Bill. We object to the outrageous timeframe for its consideration and to the lack of impact assessment before we debate it. Our amendments try to mitigate some of its worst aspects but, ultimately, it remains an unlawful Bill completely and utterly beyond repair.

Public Order Bill

Debate between Joanna Cherry and Stuart C McDonald

Consideration of Lords amendments
Tuesday 7th March 2023 Commons Chamber

[Joanna Cherry]

I am not sure the Minister is right about that. I think what he is trying to say is that the police officer could have a highly subjective view prior to stopping, and a highly subjective view is not a reasonable suspicion. We took all these matters into account in our report.

[Stuart C. McDonald]

I think what the Minister is trying to point out is that before the 24-hour period where the suspicionless stop and search can come into force, there has to be a reasonable belief that somebody somewhere in the locality may commit one of these wishy-washy offences. If that happens, then everybody in that locality can be subject to suspicionless stop and search. I am afraid that is just not an adequate answer to the fact that everybody in that locality could be subject to suspicionless stop and search. It is nonsensical.

[Joanna Cherry]

The Minister must know that we are still bound by the European convention on human rights. Clearly, from what the Home Secretary said earlier this afternoon, some Government Members are trying to find a pretext to take us out of the convention, but we are still bound by it just now. The Minister must know that in order to interfere with freedom of assembly or freedom of association, under article 11 the interference has to be lawful, necessary and proportionate. What my hon. Friend just described is not lawful, necessary and proportionate.

National Security Bill

Debate between Joanna Cherry and Stuart C McDonald

2nd reading
Monday 6th June 2022 Commons Chamber

[Stuart C. McDonald]

My hon. Friend makes an important point, which we will have to look at. There are other provisions in legislation that provide protection for those involved in the work of agencies, so we do not think that the case for this new carve-out has been made at all.

Part 2 will also need close scrutiny; we turn here to state threats prevention and investigation measures. I do not think that any of us here should ever feel comfortable about curtailing people’s liberties by ministerial fiat rather than as a punishment for a proven crime. In fairness, I think the Home Secretary recognised that in her speech. We have come to accept that such “prevention and investigation measures” are a necessary part of the fight against terrorism. Our position on TPIMs has been to cut their wings, improve oversight and limit their invasiveness, rather than to do away with them altogether. It may be that we end up with STPIMs as well, but we will probe the Minister closely on the case for requiring them at all.

Ministers always promise—the Home Secretary did today—that powers will not be used inappropriately and excessively. That is welcome, but they should not have the power to do things that are inappropriate or excessive in the first place, because those who follow them into office may take a different view of what is inappropriate or excessive. Restrictions have to be in the Bill rather than in ministerial undertakings.

Part 3 is also a mixed bag. We absolutely see the need for freezing and forfeiting damages that could be utilised for terrorism. There could also be an arguable case for powers to reduce damages in certain national security proceedings, but we will examine that closely. On the other hand, there is a real question over whether courts already have sufficient powers and whether there are sufficient safeguards and processes that prevent undeserving cases from winning damages in the first place, so we will again press the Minister on that.

Much less persuasive is the case for restricting legal aid in utterly unconnected proceedings on the grounds of a past conviction for terrorism. That was raised by the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), and I am very sympathetic to that while recognising that this is one of the few “England and Wales only” provisions.

As we heard, we need to scrutinise not just what is in the Bill, but what is not—or not yet—in it, and two issues are particularly important. As has been touched on, the Minister and the Home Secretary have set out that the foreign agent registration scheme will be amended. Various complaints have been made about that not being in the Bill as we debate it today.

I return to my experience during the passage of the Nationality and Borders Act 2022—a slightly more acrimonious piece of legislation. Having really important provisions about citizenship and age tests being introduced at pretty short notice in Committee meant that we did not have the chance to ask witnesses about them or to get briefings about them from important organisations.

Something as important as the foreign agent registration scheme needs more than a couple of days before a Committee sitting if we are going to give it proper scrutiny. I am very sympathetic to the idea of allowing us some time on the Floor of the House to debate the details. In principle, the idea is very welcome and the provision is required. However, as we all have acknowledged so far, there will be very tricky lines to draw in the sand between those who should be required to register and those who do not. We must also guard against having a massive Henry VIII clause that simply leaves it to the Government to set out the scheme at a later date. That would not be acceptable either.

Also missing from the Bill—this is apparently not going to be amended by the Government—are updates to the Official Secrets Act 1989 or any concept of a public interest defence to charges under it. As we heard, that Act is almost as out of date as the other laws that we are updating through the Bill. The Law Commission was clear that a public interest defence was required to ensure that the Government were not able to abuse legislation as a

“cloak to mask serious wrongdoing”.

It suggested a statutory commissioner to investigate allegations of wrongdoing or criminality made by civil servants or members of the public where disclosures of such concerns would be an offence under that Act. We support those ideas on the type of provisions that look under the bonnet, as I referred to earlier.

[Joanna Cherry]

As usual, my hon. Friend is giving a considered speech and I support everything that he has said so far. Notwithstanding the Government’s reluctance to use the Bill as a vehicle to introduce a public interest defence, it is likely that a cross-party amendment would seek to do that at some point. Will he confirm that the Scottish National party—our party—would support that?

[Stuart C. McDonald]

Yes, absolutely. The versions of such an amendment that I have seen look very promising and we would like to give our support to that if we can.

In conclusion, we need a Bill, and we certainly support this Bill on Second Reading. However, there is a lot for us to get our teeth into, both in terms of what is in it and what is not. We look forward to engaging critically but constructively on all these issues as the Bill progresses.

Refugees from Ukraine

Debate between Joanna Cherry and Stuart C McDonald

Wednesday 16th March 2022 Commons Chamber

[Stuart C. McDonald]

Nobody on these Benches is suggesting that no checks should be required. I will come to that later in my speech. The Irish carry out checks on people coming in, although I do not have the details of how they arrange the accommodation thereafter. Nobody is suggesting that this should be a check-free or security-free process.

Iryna Terlecky of the Association of Ukrainians in Great Britain told the Home Affairs Committee that

“it is quite an indictment of the system and how it is working that everybody needs an immigration lawyer, and this is just for family members coming over”.

That is why we believe that the requirement for a visa should be waived. We simply do not have the infrastructure to process them fast enough. The Ukrainian ambassador, whom we recently welcomed into this Chamber with a well-deserved standing ovation, said to the Home Affairs Committee on lifting visa requirements:

“We will be happy if all the barriers are dropped for some period of time when we can get the maximum of people. Then we will deal with that, and my embassy is here to help: to organise for those people”.

These calls are supported by the Governments of Scotland and Wales, as well as by numerous organisations here including the Refugee Council, the Scottish Refugee Council, the Immigration Law Practitioners Association, the Red Cross and many more. They also have public support, with one recent poll showing 60% in favour of, and just 15% opposed to scrapping the visa requirements.

As my hon. Friend the Member for Glasgow North East (Anne McLaughlin) pointed out during Monday night’s petition debate on a similar subject, not requiring an advance visa for someone travelling here is far from a novel idea. Many thousands of people arrive in the UK each and every day without having obtained a visa in advance. Around 90 countries operate this system, from Brazil to Botswana and Malaysia to Mexico, as well as the whole European Union. Many people will have biometric passports and many will not, but the border functions smoothly enough. That does not mean there are no security checks. We run checks on advance passenger information provided by the companies bringing people in on ferries, trains and planes, and there are checks at the border. Biometrics can still be taken, by using apps for those who can, by reusing biometrics for people who have been here before, or by doing the biometrics at the border on or after arrival. And as the ambassador said, we will have the assistance of the Ukrainian Government in doing the checks.

Salisbury has been invoked in this Chamber, but while that illustrates what Putin is capable of, it has nothing to do with visas. Neither in that outrageous attack nor in the murder of Alexander Litvinenko was there any requirement for the murderers to use anything other than a Russian passport with a false identity and to seek a visa for the UK directly. The security concerns that we have heard about are hard to pin down. In the reports of the Home Secretary’s embarrassing representations to Ireland, reference was made to briefings about gangs. Here, Minsters have spoken about “false documents”. Other briefings have blamed No. 10 for blocking Home Office proposals to simply waive visa requirements. If that is so, the Home Office was clearly not overly concerned about the security challenges that have repeatedly been referenced. None of these concerns can be ignored, but in the grand scheme of things the Home Office has done nothing to persuade me or my colleagues—or, I suspect, Members right across the House—that security justifies keeping those fleeing persecution at arm’s length, potentially for months on end.

[Joanna Cherry (Edinburgh South West) (SNP)]

As usual, my hon. Friend is making an excellent speech. Is he aware of the views of Lord Peter Ricketts, the former national security adviser, who has said that because the majority of refugees coming to this country are women and children, we should take

“a much more humane and open approach…and should not be requiring visas”

and that we should do the security checks after they get here? Is my hon. Friend anxious, as I am, to hear from those on the Government Front Bench why they think Lord Peter Ricketts is wrong?

[Stuart C. McDonald]

I agree with my hon. and learned Friend. I know that she made a similar point in Monday night’s debate, and that she is still waiting for a response to those concerns. We expect to hear that response today.

At the end of the day, we are not the ones asking the Government to do anything wild or outlandish. It is the Government who are asking us to go along with a policy that is totally out of kilter with that of our neighbours and with public opinion and that does not meet the urgent humanitarian challenge that we face today. I very much fear that we will regret it if we do not waive these visa requirements, and we should encourage the Government today to take action on that.

As the motion states, we welcome the further extension to the family scheme and the launch of the sponsorship scheme. I know that hon. Members will have a million questions to ask about them, some of which we were helpfully able to put directly to the Minister this morning. I will briefly touch on just a couple. As I argued this morning, I see no reason why many thousands of Ukrainians who are here on time-limited visas should be excluded from bringing relatives in on the family scheme, whether they are students, workers or visitors. There will be particular issues for seasonal agricultural workers in accessing even the sponsorship scheme, given the accommodation that they are generally provided with. I welcome the fact that Lord Harrington told the Committee this morning that he would give that matter his consideration, because we could be talking about 10% to 20% of the Ukrainian diaspora here being in that very situation and still struggling to be joined by any family at all. It is important that we resolve that.

We must also resolve the issues around people’s leave to remain here as early as possible, preferably matching it to the leave to remain that people coming in are being offered, rather than giving them just a few months until the end of the year. There are other questions about the nature of the leave to remain that people are being offered and about what happens at the end of the three years. There are questions about the safeguarding and protection of vulnerable people entering on the sponsored route. What happens if a sponsorship breaks down? What happens at the end of the six months? Colleagues will speak in much more detail about these points, but we offer our questions and criticisms constructively, because we all want to see these schemes work.

As I have said, our fundamental disagreements with the Government are over their stance that visas should still be required at all. Our other fundamental disagreement is about the Nationality and Borders Bill, which will come back to this House next week when we will debate the Lords amendments to it. That legislation is predicated on a totally misguided belief that refugees must always seek asylum in the first safe country, and that those who do not must be criminalised, offshored and stripped of their rights to family life and public funds. This last month illustrates as never before in the starkest terms the importance and relevance of the refugee convention, 70 years on, and also how the anti-refugee Bill is simply not fit for purpose. We will be constructive critics wherever we can, but on those two fundamental points we are absolutely clear: scrap visas for Ukrainians, and scrap the anti-refugee Bill.

Nationality and Borders Bill

Debate between Joanna Cherry and Stuart C McDonald

Report stage
Tuesday 7th December 2021 Commons Chamber

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

Rather than fixing the broken asylum system, the provisions in this part of the Bill risk breaking it all together, endangering, criminalising, delaying, warehousing, offshoring and depriving of their rights those who simply seek our protection. The Uyghur, the Syrian and the persecuted Christian I spoke about on Second Reading, as well as the Afghans who are now in danger because of events subsequent to that debate, all face those bleak impacts despite our best efforts in Committee.

Contrary to the claims that the Bill is about safe routes, it actually does not add a single one, while threatening to restrict vital family reunion rights, pushing more people towards smugglers and dangerous crossings.

[Joanna Cherry (Edinburgh South West) (SNP)]

I thank my hon. Friend for his forensic work on the Bill in Committee. He correctly says that the Bill does not propose any new safe legal routes, but there is one provision that does—new clause 10, in the name of the hon. Member for Bermondsey and Old Southwark (Neil Coyle), of which I am a co-sponsor. It proposes having a humanitarian visa that people could apply for in France so that they could start the process of coming to the United Kingdom there. Can my hon. Friend confirm that SNP MPs will support new clauses 10 and 11?

[Stuart C. McDonald]

I am grateful to my hon. and learned Friend for her intervention, and I am happy to confirm that the SNP will support them. Indeed, there are a range of new clauses from both sides of the House, from Back Benchers in particular, that seek to add safe routes, and they all have our support. For our part, we have tabled new clause 35, which would expand refugee family reunion in a way that this House supported in 2018 in the private Member’s Bill introduced by my hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil).

Our other proposals try once more to limit some of the harm that the Bill will do at every stage in the asylum process. However, let me first welcome the amendments from the Joint Committee on Human Rights and others regarding the appalling maritime pushback clauses and the criminalisation of rescuers—provisions that risk serious harm even before an asylum seeker is able to enter the asylum process.

For those seeking asylum in the UK who do get here, is it not outrageous that they will be criminalised under an offence in clause 39 punishable by up to four years in prison? That is why our amendment 116 states clearly and simply that if Afghans, Syrians, Uyghurs, Christian converts or others are at risk of persecution in their countries of nationality, their mere entry or arrival for the purposes of seeking asylum is not a crime. Is it not extraordinary that that very idea has to be debated?

Clause 11 means that, having faced the criminal justice system, our Afghan and his colleagues will be stuck in one of the Government’s asylum warehouses. We say that we should not go down that path—a path that the Irish have just rejected as utterly failed and that brought shocking results at Napier Barracks—and that we should make community dispersal work. Our new clause 36 would ensure that dispersal authorities get the funding they need to undertake their vital role.

Clause 15 means that, stuck in that warehouse, the Syrian and his colleagues will have to wait for months on end before their asylum cases are looked at, because their claims will be deemed inadmissible under a ludicrously broad range of criteria that will allow the Home Secretary to say that another country should take responsibility—even if there is not the remotest chance of that actually happening, there is no real reason why it should happen or there are strong reasons, such as family ties, why the claim should actually be considered here. The Home Secretary could even insist that a human rights-abusing country that pays no more than lip service to the refugee convention should take charge, even when our Syrian or Afghan has absolutely no connection to that country whatever.

Amendments 132 to 142, drafted with advice from the United Nations High Commissioner for Refugees, seek to put the necessary safeguards and restrictions in place. We are not saying that it is never appropriate for other countries to be asked to take over responsibility, but crucial safeguards must exist, and they are absolutely nowhere in this Bill. Already this year, 7,000 or so people have had their claims put on hold through inadmissibility procedures. Just 10 were removed. The remaining 6,990 are either still waiting or have been moved into the asylum process. They have been waiting for absolutely no good reason at all and almost certainly at a cost of tens of millions of pounds to the taxpayer. The whole set-up is absolutely ludicrous.

Having toughed out the additional delays, the Uyghur and his colleagues will find that it is the Home Office that finally considers their asylum claims, but we ask why. Time and again the Home Office has shown itself as not fit for purpose, which is why new clause 37 asks us to look to the Canadian model of an independent asylum decision-making body, to ensure that protection claims no longer suffer from political interference and politically motivated targets. Sadly, far from supporting independent decision making, a whole series of pernicious clauses in the Bill would see this Parliament telling decision makers what inferences to draw about evidence provided as part of a claim. We say, “Leave assessments of evidence to the decision makers who actually see it. We don’t get to see it.” That is why amendments 118 to 120 seek to remove clauses 18, 21 and 25.

EU Nationals in the UK

Debate between Joanna Cherry and Stuart C McDonald

Wednesday 6th July 2016 Commons Chamber

[Stuart C. McDonald]

I absolutely agree with my hon. Friend. It is not a complicated matter. If we cannot persuade the Home Secretary on the grounds of common decency or common sense—that sometimes happens in immigration debates, unfortunately—perhaps we can appeal to her self-interest by gently pointing out to her that she is, unusually, making a fool of herself by taking this approach.

I genuinely believe—I certainly hope—that I am not being naïve in saying that I do not for a minute believe that the Government are realistically even contemplating removing rights from millions of EU migrants. I think that all hon. Members know that and I think that the Minister knows it; he did everything he could on Monday to hint at it without saying so explicitly. What is more, the European Commission, other member states and everyone else involved in negotiations know it, too. Sadly, the only people who really matter in all of this—the EU nationals themselves—do not know it, because the Home Secretary is not saying it and the climate that they are living in tells them the opposite. The Home Secretary needs to fix that now.

[Joanna Cherry (Edinburgh South West) (SNP)]

My hon. Friend has talked about us cutting off our nose to spite our face. I met the principal of Edinburgh Napier University in my constituency last Friday and she has been advised that potential staff members from other EU countries are withdrawing from job offers. Does my hon. Friend agree that if this uncertainty is allowed to continue, it will seriously damage the university sector in Scotland and across the United Kingdom?

[Stuart C. McDonald]

That is a perfect example of the uncertainty we are talking about and it has to be brought to an end. As my hon. Friend the Member for Banff and Buchan (Dr Whiteford) has said, this does not require a detailed statement on exactly what form of leave is required or the precise mechanisms for implementing it. It requires a simple statement that all EU nationals in the UK today will continue to enjoy leave to remain in the UK, regardless of Brexit, and, preferably, that they will enjoy such leave on conditions that are at least as favourable as those currently in place. A simple sentence from the Minister or the Home Secretary is all that is required.

As the Chair of the Home Affairs Committee has said, it is also absurd to argue that the UK’s position in Brexit talks would be undermined by such a move. On the contrary, it would show that we are approaching any negotiations in good faith, co-operatively, realistically and with integrity. The Home Secretary’s posturing, on the other hand, would engender nothing but ill-feeling and bad blood.

Immigration Bill

Debate between Joanna Cherry and Stuart C McDonald

Tuesday 1st December 2015 Commons Chamber

[Stuart C. McDonald]

I agree that we need to enforce the immigration rules and laws that we have put in place, but the problem is that the resources and manpower are not being put in to do that. We do not need new powers and rules; we simply need resources to enforce the rules that already exist. I suggest that some of the rules already go far too far.

New clause 16 is a modest response to clause 13, which creates wide powers for immigration officials to close premises for 48 hours before any court involvement is required in certain cases of suspected illegal working. These could have very significant consequences, including for perfectly innocent workers whose place of work is closed for up to two days. Provision for statutory compensation, which our amendment would introduce, is designed to ensure that notices are not issued in an oppressive manner by immigration officials.

New clause 17 is without doubt the more significant of the two new clauses. It would remove the right-to-rent provisions in the 2014 Act. We have signed other amendments in relation to right to rent, starting with the crucial amendment 35, which would remove the criminal sanctions and what we regard as Dickensian eviction processes from the Bill. Amendment 46 is designed to prevent those letting out rooms on essentially a charitable basis from being criminalised. Finally amendments 54 to 57 remove powers for the Secretary of State to legislate by way of regulations for new Scottish right-to-rent provisions, with immense effect on devolved Scottish housing law.

We also support changes proposed by Labour Members such as amendment 22, which seems designed to fix what we can only presume to be a drafting anomaly under which a landlord or landlady would be guilty of an offence for renting to a person with no right to rent, even during the period of 28 days when they could not evict that person. We also fully back their amendments 23 to 26, which would remove the obscene proposals that would see landlords and landladies turned into not only immigration officers but High Court judges, and would see summary evictions without judicial oversight.

I know that my hon. Friend the Member for Glasgow North East (Anne McLaughlin) will have more—much more—to say on these dreadful and draconian measures if given the opportunity, Madam Deputy Speaker. Our view is essentially the same as it was on Second Reading. Right to rent is not evidence-based, but in fact flies in the face of the evidence provided by the Joint Council for the Welfare of Immigrants, and indeed parts of the Government’s own pilot review. It is unfair to place these duties and now criminal sanctions on landlords, and it will lead to inadvertent discrimination or racism, with foreign nationals and even British citizens without documents at risk of being rejected from a tenancy whenever there is a safe and easy option of a British passport holder to rent to. It will push more families away from authorities and immigration control, making enforcement harder, not easier.

The one part of the Bill from which something useful might actually emerge is the first few clauses of part 1, and the provisions for a Director of Labour Market Enforcement, which we welcome. It is sad that its presence in an immigration Bill suggests that the new role might be seen as one primarily concerned with enforcing immigration laws, so we have joined our Labour colleagues in supporting amendment 18, which is designed to ensure that the functions of the director are exercised for the purpose of protecting the victims of labour market exploitation.

More fundamental is amendment 19, which seeks to remove the offence of illegal working. We share the widespread concerns that, like other offences, it will have little effect in terms of immigration control, but will have other significant adverse effects. In this case, the negative consequence is to undermine the decent work that the Government have been doing to tackle slavery and trafficking. The Bill will drive exploited, undocumented workers further underground, and leave them more at risk of exploitation, rather than less.

While on this issue, we know that James Ewins’ report on domestic workers is with the Government but as yet not available to Members. We question why that is the case, and when we will be able to see and debate it in order to inform what should happen with this Bill if it gets a Third Reading.

Finally, in relation to part 1 of the Act, amendment 33 seeks to ensure that employers who innocently and inadvertently employ a person without the right to work are not criminalised by the Bill. It does so by applying a threshold of “knowingly or recklessly” to the offence of employing an adult without permission to work, instead of merely requiring that they have “reasonable cause to believe” that the employee may be such a person. We are concerned that the current test might catch people who are not the intended target.

There are two further sets of amendments in this first grouping that I need to speak to. The first set relates to how a number of these provisions would be implemented in Scotland. Clauses 10, 11 and 16 all include what I am told are referred to as Henry VIII clauses—broad powers to legislate for Scotland, and indeed Northern Ireland and in one case Wales. Whereas provisions on licensed premises, private hire vehicles and right to rent are set out in significant detail in schedules to the Bill, and subject to full legislative scrutiny, that is not the case for Scotland. Instead, the Secretary of State is given the sweeping power to legislate in a similar way for Scotland by way of regulation. The power includes the ability to amend Acts of the Scottish Parliament, without any consideration of that Parliament’s view on the matter—and that is despite the fact that liquor licensing, private hire car licensing and housing are all devolved matters.

I understand that Parliament has long been hostile to Henry VIII clauses, and rightly so. These clauses are particularly pernicious for the reasons given, and so should be rejected. That can be done by supporting amendments 47 to 53, which would remove the power to regulate for Scotland in this way, thereby requiring primary legislation and the full scrutiny that that entails. Alternatively, amendment 41 requires that any such regulations would require the consent of the Scottish Parliament, again enabling proper scrutiny. That is surely only right and proper in the circumstances.

Finally, on new clause 13 and amendment 32, this House witnessed a powerful Backbench Business debate back in September, led by the hon. Members for Sheffield Central (Paul Blomfield), for Bedford (Richard Fuller) and for Enfield, Southgate (Mr Burrowes), who I know will all want, if they can, to speak on the issue again today. On that day there were strong speeches on all sides of the House as it united to tell the Government that immigration detention without a fixed and certain time limit was no longer acceptable. We are the only country in the EU without a time limit so it is inexcusable for this country not to operate one. We on the SNP Benches would prefer that we move straight to a position where immigration bail is granted after 28 days, as set out in amendment 32. Alternatively, we will support new clause 13 to see progress towards that goal.

[Joanna Cherry (Edinburgh South West) (SNP)]

My hon. Friend will be aware that the immigration detention inquiry panel heard evidence from a consultant psychiatrist that those who are detained for more than 30 days suffer significantly more mental health problems than those detained for fewer than 30 days. Does my hon. Friend agree that this evidence reinforces the need for new clause 32?

[Stuart C. McDonald]

I agree entirely. That is one of a huge number of reasons that were highlighted during the Backbench Business debate earlier this year.

--- Later in debate ---

[Stuart C. McDonald]

Like the hon. and learned Member for Holborn and St Pancras (Keir Starmer), we believe that the provisions on support are among the most draconian parts of the Bill; I agree with the Minister to the extent that the disagreement is one of principle.

In our view, provisions that seek to use the further deliberate infliction of destitution, including of children, as a tool of immigration policy must be thoroughly opposed. The provisions fly in the face of evidence, are counterproductive and show a grim lack of compassion. We support all amendments seeking to prevent, or at least limit, the damage. They include amendment 29, which would remove clause 37 and therefore most of the damaging changes, and amendments 30 and 31, which would preserve all rights of appeal against decisions to refuse support. Amendment 40, tabled by Scottish National party Members, would ensure that families with children who are minors received section 95 support until they left the country.

The Minister referred to the pilot carried out by the last Labour Government, and that is still relevant to what is being proposed today. Similar proposals were abandoned because of the results of the pilot. It is interesting to look at the comments about the project made by the Joint Committee on Human Rights:

“The section 9 pilot has caused considerable hardship and does not appear to have encouraged more refused asylum seeking families to leave the UK…We believe that using both the threats and the actuality of destitution and family separation is incompatible with the principles of common humanity and with international human rights law and that it has no place in a humane society. We recommend that section 9 be repealed at the earliest opportunity.”

We believe that the same should happen to the equivalent provisions in this Bill.

Sadly, the Government have in their sights not only children but those who arrived as children and are now young adults. Rather cruelly, young care leavers will be prime targets. That is why we have tabled amendments 42 to 45, which would ensure that young people leaving local authority care were able to access leaving care support under the Children Act 1989 without discrimination. Amendments 42 and 43 would remove the provisions, added by schedule 9, that would prevent local authorities from providing leaving care support under the 1989 Act to young people who were not asylum seekers and did not have leave to remain when they reached age 18.

Amendment 44 would enable local authorities to provide leaving care support under the 1989 Act to young people who did not have leave to remain and were not asylum seekers. Finally in this group, amendment 45 would provide for the Secretary of State to make funding available to local authorities, as the specialist agency responsible for care leavers, to meet the duties, set out in the 1989 Act, to the latter group of care leavers.

Our amendments 39 and 36 bring us back to what I said about the first group of amendments relating to the broad powers, which we seek to rein in, proposed for immigration officers. Despite what the Minister says, those include powers for detainee custody officers, prison officers and prison custody officers to strip search detained persons for anything that could be evidence of their nationality—a very broadly defined power. The Minister points out that Government amendments 3 and 4 propose changing the name of the search from “strip search” to “full search”, but they do not in any essential way change the extent of the powers, which, to all intents and purposes as far as I still understand them, are basically strip search powers. For that reason, provision on the gender of the persons present during the search is made in clause 25(8). Our amendment 36 would remove the proposed power for custody officers to strip search detainees for documents that “might” establish a person’s nationality or indicate

“the place from which the person travelled to the UK or to which a person is proposing to go.”

Going further, we seek to tighten schedule 2(2) of the Immigration Act 1971. This power ostensibly deals with individuals on arrival in the UK for the purposes of determining whether they have or should be given leave to enter or remain. It has been used by the Home Office as justification for conducting speculative, in-country spot-checks involving “consensual interviews”. Amendment 39 would expressly limit this power to examination at the point of entry. The Minister argues that our amendment makes the power too tightly drawn, but in our view it is far better for intrusive powers to be tightly drawn than drawn broadly and arbitrarily.

The other atrocious provisions that amendments in this group seek to attack are those which provide that people should leave the UK even before their appeal against a Home Office decision has been heard. Amendment 27, which has support from Labour as well as SNP Members, would remove the offending clause 34, which extends powers of certification introduced by the Immigration Act 2014 to mean no longer just “deport first, appeal later” for those convicted, but “remove first, appeal later” for all. To us, these provisions are madness. They will mean people having to give up jobs, studies and family life while appeals are ongoing. Families could be separated for lengthy and unknown periods until their appeal is finally determined.

All this comes against a background of constant criticism of Home Office decision making, including in a recent ombudsman’s report. We should bear in mind that in 2014-15 42% of managed migration appeals and 42% of entry clearance appeals were successful. In 2013-14, the figures were 49% and 48%. Thousands of people could have to leave for several months because the Home Office got it wrong. The danger is that appeals will not be pursued or will be pursued inadequately given the costs of pursuing an appeal as a privately paying client from overseas.

[Joanna Cherry]

My hon. Friend will be aware that Home Office statistics state that only 24% of appellants removed under the current “deport first, appeal later” provisions go through with their appeals. Does he agree that this suggests that extending those provisions will make it much harder—in fact, probably impossible—for the majority of these appeals to go ahead? Is it not inherently unfair to hold appeals with the appellants unable to make their own case in person?

[Stuart C. McDonald]

I am grateful for that intervention and entirely agree with my hon. and learned Friend.

The Government seem to be attempting to cut net migration not just by limiting the class of people who can come under the rules but by making it nearly impossible for people to exercise their legitimate rights to stay. This is scraping the barrel of immigration control measures, and I will want to test the House’s opinion on that.

We regard as utterly unnecessary the part 7 provisions on the English language. Our amendment 34 would ensure that part 7 will not come into force in Scotland without the consent of the Scottish Parliament. We have faith that our public authorities, whether reserved or devolved, can determine that a worker has the necessary skills for the job, including speaking fluent English, and that normal complaints procedures would deal with any problems, as with any other complaint about competence. Part 7 creates unnecessary bureaucracy and is a clear example of immigration theatre and tokenism.

A number of other Members have made brave attempts to bring a silver lining to the cloud provided by this grim Bill. New clauses 11 and 1 seek to expand the range of people qualifying for refugee family reunion. I have asked questions, written letters and spoken in this Chamber on this point on several occasions, so I am very happy to provide my backing for such attempts. In the face of the most dreadful refugee crisis since the second world war, surely this is a sensible option that we can all support. Broader family reunion means that people we know should logically be sheltered in the United Kingdom do get to come here. This is the logical place for them because they have family support here and so will have help with accommodation and integration, for example. They will often even pay for their own flight. With little trouble for the Government or the taxpayer, we can extend a hand of friendship to more of those fleeing dreadful war and persecution.

Three amendments in the name of the right hon. Member for Orkney and Shetland (Mr Carmichael) similarly seek to bring some light from the darkness. Amendment 2 would introduce permission to work for those seeking asylum who have been waiting six months for a decision. My colleagues and I recognise that this is a positive step forward, and it has our backing. We also thoroughly welcome new clause 14 as a step forward in overcoming the unduly onerous financial thresholds attached to family visas, which the Children’s Commissioner for England recently reported had created thousands of what she called “Skype families”—British children able to communicate with a parent only over the internet. New clause 15 would improve rules relating to adult dependent relatives by removing unnecessary criteria, and it again has our full support.

Reports into Investigatory Powers

Debate between Joanna Cherry and Stuart C McDonald

Thursday 25th June 2015 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

The Scottish National party welcomes the publication of the Anderson report, which, as others have noted, is very thorough, and one can have only admiration for the job David Anderson QC has done. The SNP wants to work constructively with Members of Parliament across the Chamber to make sure that when the new Bill to which the Home Secretary has referred is introduced it takes adequate account of civil liberties and human rights issues.

The SNP recognises the need for law enforcement and security services to have access to the information they require in respect of the threat not just of terrorist offences, but of serious crime, such as the significant evil posed by child sexual exploitation. However, the SNP will always be vigilant to ensure that appropriate safeguards are put in place to balance the need to keep our communities safe with the need to protect civil liberties.

Although we have some concerns about the report’s recommendations, we welcome many of its aspects. We welcome in particular the call for a comprehensive and comprehensible new law to be drafted from scratch, to replace the multitude of current powers and to provide for clear limits and safeguards on any intrusive power that it may be necessary for public authorities to use.

We also very much welcome David Anderson’s recognition of the need for the new law to comply with international human rights standards and to be subject to the visible and demanding safeguards reflecting the central importance of both the European convention on human rights and the Human Rights Act.

We welcome the fact that the report urges much stronger oversight of the activities of the police and security services. We support the recommendation that interception warrants should be granted by judges rather than politicians. That properly reflects the separation of powers between Executive and judiciary, as applies in democratic countries across the world that pay more than lip service to the importance of the rule of law. In that respect, I wish to associate myself with the insightful comments of the shadow Home Secretary and the right hon. and learned Member for Beaconsfield (Mr Grieve).

The SNP also welcomes David Anderson’s recommendation that the Investigatory Powers Tribunal should be able to make declarations of incompatibility under the Human Rights Act and that its rulings should be subject to appeals on points of law.

Finally and most importantly, we welcome David Anderson’s statement that no operational case has yet been made for the compulsory retention of third party data. He has also questioned the lawfulness, intrusiveness and cost of the proposals of the draft Communications Data Bill in 2012. His comments are a serious blow to previous Government attempts to introduce what was in effect a snoopers charter. David Anderson notes that no other European Union or Commonwealth country requires the blanket retention of weblogs and, as the right hon. Member for Sheffield, Hallam (Mr Clegg) has noted, Australia recently prohibited that in law—and for very good reason.

When the report was introduced to the House two weeks ago, the hon. Member for Brighton, Pavilion (Caroline Lucas) noted that both the European Court of Justice and David Anderson have now made it clear that blanket retention of data is unlawful. The SNP hopes that the UK Government will take serious cognisance of that.

The director of Liberty, Shami Chakrabarti, has noted:

“It’s striking that—despite a five-year campaign by the Home Secretary to convince us of its absolute necessity—David Anderson concludes that no operational case for the snooper’s charter has yet been made.”

The SNP hopes that David Anderson’s report will be the death knell for the snoopers charter.

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

My hon. and learned Friend, who has enjoyed a distinguished career as a lawyer, has rightly welcomed large parts of Mr Anderson’s report. Does she, like me, but perhaps unlike the right hon. and learned Member for Beaconsfield (Mr Grieve), share the concerns of many lawyers across the UK that the rule of law and, indeed, the proper administration of justice may be undermined if the protection offered by legal professional privilege is not fully respected by investigatory powers legislation?

[Joanna Cherry]

I share that concern and note the comments of the English Bar Council and the English Law Society, and I know that the Scottish Bar, of which I am a member, and the Law Society of Scotland also share concerns that legal professional privilege ought not to be interfered with. It is important to note that insisting on proper protection for legal professional privilege is not special pleading on behalf of lawyers; the privilege is that of the client, rather than the lawyer, and the underlying rationale is the public interest in ensuring the proper administration of justice. I share the concerns of legal bodies in that respect.

I will now to turn to the Scottish angle on these matters. When I spoke in this House on the occasion of the publication of the Anderson report, I asked the Home Secretary to commit fully to engaging with her Scottish Government counterparts in so far as there will be measures in the new Bill that impinge on the devolved competences. Her response was that national security is a reserved matter.

That is simply not good enough. The Bill will touch on issues beyond national security, including particularly serious crime. Crime is a devolved matter and the new Bill will clearly include measures directed against the investigation of serious crime. I and others have already mentioned child sexual exploitation as an important example of that. Much of what is to be covered in the new Bill may impinge on areas of Scots law that are clearly devolved and under the jurisdiction of the Scottish Government or Scotland’s law enforcement agencies, including the Crown Office and Procurator Fiscal Service.

I would like to give the Home Secretary at least two examples of proposals, which, if taken forward, would have implications for Scottish Ministers and Scottish legislation. The first is a return to judicial authorisation of interception warrants on serious crime grounds. At present, interception for the purpose of preventing or detecting serious crime in Scotland is authorised by Scottish Ministers. On the basis of David Anderson’s recommendations, that will, in future, be in the hands of members of the Scottish judiciary.

A second proposal that may have implications for Scotland is the recommendation that the three existing commissioners for interception, surveillance and intelligence services be replaced with a single independent surveillance and intelligence commission. A number of provisions in the Regulation of Investigatory Powers (Scotland) Act 2000 place duties on the Office of Surveillance Commissioners in respect of surveillance and the use of covert human intelligence sources. Any change in that area would almost certainly trigger the requirement for a legislative consent motion from the Scottish Parliament. Accordingly, I hope that the Home Secretary will stand respectfully corrected and now accept that there is a need for her to commit to engaging fully with the Scottish Government, insofar as any legislation introduced later this year and at the beginning of the next year will impinge on the devolved competences.

I mentioned that, although the Scottish National party welcomes the Anderson report, there are areas of concern about its contents. We are particularly disappointed at the suggestion that bulk collection of external communications should continue subject only to what are described as “additional safeguards” and at the recommendation that existing compulsory data retention capabilities under the Data Retention and Investigatory Powers Act 2014 be maintained. The Anderson report offers six agency case studies in an attempt at justifying mass interception. However, as others, including Liberty, have noted, the information in these case studies is vague and limited, so it is impossible to assess whether the security outcomes could have been achieved just as easily by using the wealth of targeted and operation-led intrusive surveillance powers at the agencies’ disposal.

The Scottish National party does not dispute the use and value of targeted and proportional intrusive surveillance. We believe, however, that the mass speculative interception of communications and data retention is unlawful, unnecessary and disproportionate. We are pleased to see that Liberty is currently challenging the lawfulness of mass interception in the European Court of Human Rights and representing Members of this House in their legal challenge to DRIPA.