Immigration Bill (Ninth sitting)

Keir Starmer Excerpts

Tuesday 3rd November 2015 Public Bill Committees

[James Brokenshire]

Welcome back to the Chair, Mr Owen. Amendment 69 clarifies how a landlord may serve on tenants a notice terminating a tenancy. It provides that the notice may be delivered to the tenant or tenants directly—in other words, given to them by hand—left at the property, sent through the post to the property or delivered in any other prescribed manner. The clarification puts beyond doubt what constitutes effective service of the notice. I am pleased that in its evidence to the Committee Crisis welcomed the amendment as providing greater clarity. It ensures that, in circumstances where the illegal migrants choose to leave a property of their own accord once a Home Office notice has been issued, the landlord is able to use the powers in the Bill to recover his or her property at the end of the 28-day notice period and re-let it to someone with a legal right to occupy it. I note that the amendment has been welcomed outside the Committee.

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

Is it envisaged that the regulations that refer to electronic means will provide for notice to be served by email, for example?

[James Brokenshire]

The reference to possible future prescription in regulations regarding electronic means covers email. The wording is understood as referring to some means of service of documentation, and we give it that emphasis. I was about to say that the amendment future-proofs the provision—I think that the hon. and learned Gentleman took account of that. It enables the Government to introduce new methods of serving notice on tenants—email, for example—should such arrangements for dealing with tenancy agreements become more commonplace.

Amendment 15 ensures that a landlord can engage the powers of eviction in new section 33D only if they have a Home Office notice in respect of all the occupants. In the absence of such a notice a landlord cannot rely on the provisions in that new section.

Amendment 16 changes the definition of “occupier” of a rented property in respect of action taken to evict. New section 33D(7) provides that occupiers shall be taken to be tenants, named occupants on the tenancy agreement and others who the landlord, through reasonable inquiries, comes to know as living at the property. Illegal immigrant tenants may, however, choose not to co-operate with the landlord’s inquiries about other occupants and, indeed, bring in another occupant who is lawfully in the UK to frustrate eviction. Such occupants may then accuse the landlord of unlawful eviction. The amendment provides that a landlord may pursue eviction on the basis of who they know to be occupying the property, including where that knowledge has been established through inquiries with the tenant or tenants.

Amendment 69 agreed to.

Amendment proposed: 87, in clause 13, page 11, line 33, at end insert—

“(6A) A landlord does not commit an offence under s33A of this Act during the period of 28 days specified in subsection 4.”

To protect a landlord/landlady from prosecution for renting to a person without a right to rent during the period for which they are prohibited from evicting the tenant under subsection 33D(4).—(Keir Starmer.)

Question put, That the amendment be made.

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[The Chair]

The question is that clause 13, as amended, stand part of the Bill. As many of that opinion say Aye. [Hon. Members: “Aye.”] To the contrary No. [Hon. Members: “No.”] The Ayes have it. Sorry—are you saying No?

[Keir Starmer]

On a point of order, Mr Owen. This may just be a point of clarification. We have had a debate on the amendments to clause 13, but we have not had the debate on clause 13 itself as far as I recall. I do not want to miss that opportunity, and if I am about to I would like to know.

[The Chair]

We did not have a debate at the beginning; you are right. I hesitated when I looked at the Minister because I thought he was going to say something.

[The Chair]

I am grateful to the hon. Gentleman, but I am as even-handed with the Minister as I am with Opposition Members when we go through these amendments. I tried to catch the Minister’s eye, but I did not do the same with Mr Starmer, so I am going to give him the opportunity to debate this clause before we move on. It is at my discretion.

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

[Keir Starmer]

I want to raise some issues about clause 13, because it contains some innovative measures that need to be considered. I want to address clause 13(2), on eviction. I understand that under clause 13 a landlord has the power to terminate an agreement under proposed new subsection (1) of new section 33D if the condition in proposed new subsection (2) is met, which is that the Secretary of State has given notice,

“which, taken together…identify the occupier…and…state that the occupier or occupiers are disqualified”.

So it is the Secretary of State’s notice that triggers the landlord’s ability to terminate the agreement under clause 13.

Proposed new subsection (3) states:

“The landlord may terminate…by giving notice in writing to the tenant”.

So far so good. The date for the termination

“must not be earlier than…28 days”.

Proposed new subsections (5) and (6) are much more controversial. Proposed new subsection (5) states:

“The notice is to be treated as a notice to quit”.

As I understand the amendment that we debated moments ago, in future, that may be a notice by email if prescribed in regulations.

Proposed new subsection (6) states:

“The notice is enforceable as if it were an order of the High Court.”

That is an innovation. It is a first in landlord and tenant legislation. In fact, it may be a first outside the area of civil penalties. It appears to be borrowed from a regime in which some orders can be treated under civil penalty schemes as an order of the court.

If applied to fines, the provision may not be problematic. In other words, it may not be necessary for the individual to go to court to have the level of the fine determined, but this is an order for eviction. The position in housing law is that in the 1970s a decision was taken to end for ever the prospect of people being forced on to the streets by landlords. Once upon a time, a landlord could change the locks, put the furniture on the street and throw the family out there and then. It was so repugnant to all parties that it was thought that we should set our face against that ever happening again. From then on, as far as I am able to research and as I know from my own practice, there has always been a requirement to go to a court to have an eviction order put through proper due process to avoid the prospect of a family literally being put on to the streets.

If the provision means what it says on the page—there may be an explanation for it that the Minister can help me with—it appears to reintroduce something that has been outlawed for the best part of 50 years. The provision means that, once the notice is served, if it is enforceable as if it were an order of the High Court, the landlord can resort to self-help and can change the locks, put the furniture on the street and put the family on the street as well, without any more ado.

[Sarah Champion (Rotherham) (Lab)]

On top of the points of serious concern that my hon. and learned Friend has already mentioned, does he also share my concern that there is now no safeguard if the landlord pursues a wrongful conviction?

[Keir Starmer]

There is a very serious concern, because as far as I can see there is no ability in the clause for the tenant to appeal the landlord. I am not even sure under these circumstances whether judicial review is available.

[Craig Whittaker (Calder Valley) (Con)]

I understand what the hon. and learned Gentleman is trying to put across. However, currently the eviction order is looked at by one person in a court. Surely he must agree that if the order comes from the Secretary of State, a much higher due diligence is gone through in following the eviction process first.

[Keir Starmer]

I accept that the notice will have come from the Secretary of State, but it will have gone to the landlord unbeknownst to the tenant. The first thing the tenant will know is when the notice is served on him or her. At that stage, there is nothing in the clause, as far as I can see, that allows the tenant to appeal or to challenge the order. I can see that some might argue that the Secretary of State could be challenged by judicial review for issuing the order in the first place, but that is a long and very complicated High Court route to deal with eviction, which would normally be dealt with in the county court.

[Craig Whittaker]

Although I accept the point the hon. and learned Gentleman was trying to make, to say that the tenant is not aware that they are illegal immigrants is, even he may agree, a little far-fetched.

[Keir Starmer]

That is why I did not say it. I said that the tenant would not know that the notice had been served. Just to stand back a moment, this issue was taken so seriously by the House because it happens in real life: landlords change locks, they put furniture on the streets and families are in the gutter. That is what happened and everybody thought it was something we could not tolerate in a modern democracy, whatever the rights and wrongs, whether the eviction was justified or not justified. Many evictions, for many other reasons in land law, are justified, but everybody considered that process was important, particularly where families would be put on the street. This is a step back to the dark ages of landlord and tenant law.

[Craig Whittaker]

Again, I see the exaggerated point that the hon. and learned Gentleman is trying to make, but can he explain what currently happens once someone has been to court as a landlord and got an eviction order from the court?

[Keir Starmer]

I will happily do that. Sensibly, the law has been set up in such a way that the landlord gets a High Court enforcement officer with powers of a constable to carry out the eviction if necessary. That is to prevent landlords from resorting to violence in the premises—that is why that change was made. The presupposition is that the eviction is lawful, but in order to regularise the process, the landlord gets a court order and then a High Court enforcement officer exercises the powers of a constable to enforce it. The whole point was to stop families being put on the street without due process and to avoid the violence that was happening when a landlord resorts to self-help and changes the locks and boots someone on to the street. That is why “with the power of a constable” is included. That is what happens now, but what is proposed here is radically different and I have seen nothing to justify it.

[Paul Blomfield (Sheffield Central) (Lab)]

I guess that, like me, my hon. and learned Friend was pleased to hear the Minister a moment ago cite the expert evidence of Crisis in support of Government amendment 69. Crisis is a highly respected organisation doing extraordinary work to help sections of homeless young people. Does he therefore hope, like me, that the Minister will take note of Crisis’s view on the eviction routes that are being created by this Bill, which is that they should be completely opposed because they will make tenants much more vulnerable to rogue landlords?

[Keir Starmer]

I am grateful for that intervention, and I ask Government Members to take notice of that evidence. I also ask them not to just nod this change through. This is not just a provision in an immigration Bill in 2015; this will turn the clock back 40 years in landlord and tenant law against a practice that everybody recognized served great injustice. That law does not mean that there cannot be an eviction; it means that there must be due process and it avoids self-help, and self-help by landlords is a very bad idea.

There is no appeal, and I would again like to hear from the Minister, on the record, whether his answer to that point is that there should be a judicial review of the issue of the notice by the Secretary of State in order to challenge the eviction. I want that to be clear, because it would introduce a costly—much more costly—prolonged process than going to the county court in the ordinary eviction process under landlord and tenant law. If not, and there is either no remedy or appeal, what if the notice by the Secretary of State is wrong? Is that to be appealed by way of judicial review? Is that the only prospect? If that is the prospect, why is it better than going to the county court in the usual way, where it could be challenged in the eviction process?

[Sarah Champion]

Another consideration that I have not heard the Minister speak of is that if families are effectively made street homeless, it then falls on the local authority and will put additional pressures on existing housing stock. Going through this route, the local authority may have absolutely no awareness of it until the family literally rocks up on their doorstep.

[Keir Starmer]

That is the situation. The Government may say that I am just exaggerating, but I am not. I had a number of housing cases in my practice and some Government Members probably have as well. Having self-help evictions is a real problem for everybody, because of the injustice and the violence. Under self-help, there is nothing wrong with waiting until the family go out and changing the locks so that they cannot get back in when they come home. That means that families are out and, if there are children involved, it probably leads back to the same route, with the local authority having to carry out an assessment under the Children Act 1989.

This is a thoroughly bad provision. It is innovative—it has never been used, as far as I know, in landlord or tenant law or outside the realm of enforcement of regularised fines. There is no appeal and no regular forms of enforcement. To again clarify, under the existing regime, High Court enforcement officers have special powers of eviction and there are processes of eviction to ensure that there is no violence, that there is due process and that everybody is treated fairly.

There is absolutely no reason to change that scheme for this group of individuals. I hope that Members will not simply nod this change through as another bad provision not worth raising any concerns about. This goes way beyond immigration and into the housing field, where there has been unanimity about this process for a very long time. I ask the Minister to clarify, if necessary in writing, how he sees this provision working and what the routes of appeal are for an individual who says either that the notice from the landlord or the notice from the Secretary of State is wrong. This an area, as heard in evidence, where there are high levels of error.

[Paul Blomfield]

My hon. and learned friend is making the point extremely powerfully and, like him, I hope that Government Members will give consideration to it. Is he also concerned about proposed new section 33E of the 2014 Act, which allows the landlord to terminate the tenancy if one of the tenants no longer has the right to rent but others do? It provides a summary eviction route of the sort that he describes for people who actually do have the right to rent.

[Keir Starmer]

I am concerned about that provision but, in fairness to the Minister, I think there is a relationship between that and the amendment that he moved earlier this morning. I think that was the effect of the amendment he moved, so would he please clarify that—in other words, that the notice applies to all the occupants? If I am right about that, I hope it does not detract from the other points I am making. I am trying to make them powerfully because this is an important point of principle. The Committee needs to know what it is doing if it votes for such a provision, which is an historic first.

[James Brokenshire]

I note the hon. and learned Gentleman’s contribution. I will come later to the detailed points he has highlighted about rights of appeal and so on.

It might be helpful to set out the basis and background to the provisions. We recognise that the vast majority of landlords are diligent in their responsibilities regarding housing and immigration legislation. With the planned roll-out of the right to rent scheme, we wanted to help them more easily to evict illegal migrants through the mechanism outlined, the Home Office notice.

The hon. Member for Sheffield Central highlighted the technical point about the notice having to specify all occupiers of the premises, and that has been dealt with, as the hon. and learned Member for Holborn and St Pancras, in fairness to him, indicated in his contribution. I hope that is helpful on that narrow point.

Proposed new section 33D of the Immigration Act 2014 would provide a new power for landlords to terminate a residential tenancy agreement if the Secretary of State has issued one or more notices to the landlord naming all occupiers of the property and identifying all occupiers disqualified from renting as a result of their immigration status. To do that, the landlord must give written notice to all the tenants, specifying the date at which the agreement will end, at least 28 days after the written notice has been given. The notice is to be treated as a notice to quit, where such notice would otherwise be required to end a tenancy and is enforceable as if it were an order of the High Court, as the hon. and learned Gentleman said. That allows a landlord to engage High Court enforcement officers to evict occupiers in the event that they do not leave peacefully of their own accord. The minimum 28-day notice period gives an opportunity for illegal migrants to make arrangements to leave the UK. A landlord does not need to obtain a possession order from the county court in order to seek enforcement of the notice.

New section 33E provides for and signposts court eviction routes, which should be used in the case of a mixed household, where some occupiers are disqualified from renting as a result of their immigration status and others are not. That is the distinction that is drawn between the two new sections. To be fair to the hon. Member for Sheffield Central, if there were no mechanism to provide that, there would be further understandable concerns about people who have the right to rent in those circumstances. That is the intent of new section 33E.

The hon. and learned Member for Holborn and St Pancras highlighted what he considers an inappropriate reversal of the law. I would say to him that this is about people who do not have the right to be in the country. I will come on to what happens next and the manner in which the Home Office would exercise its duties. Ultimately, it is a parallel provision to other measures in the Bill to ensure that residential properties that are let are provided to people who have the lawful right to be in the country, rather than those who do not. The mechanism proposed by clause 13 applies where someone has been identified by the Home Office as not having that right. In other words, the mechanism does not allow someone wantonly to assert that; it has to be grounded by the notice from the Home Office.

[Keir Starmer]

Will the Minister give way?

[James Brokenshire]

I was going to come on to the hon. and learned Gentleman’s points about legal challenges, which may be helpful. There are two elements to that. If the Home Office notice is incorrect, it can be challenged by judicial review, but if the conditions for eviction are not satisfied, my clear understanding is that injunctive relief may be available in the county court. I refer to the distinction between whether the notice was lawfully issued and whether a landlord simply made that assertion, not on the basis of the notice, to try to rely on the provisions.

I can see two potential lines of challenge, which I think is what the hon. and learned Gentleman was seeking for me to elucidate. There is a right of challenge and the individuals concerned can also contact the Home Office to challenge the notice directly. There are routes available when an incorrect notice has been served, although I am very happy to give way to the hon. and learned Gentleman on whether I have clarified the questions he posed.

[Keir Starmer]

I am grateful to the Minister for giving way. On the first point, although I accept that the process is similar to the right to rent, in that it is the Secretary of State who makes the decision and serves a notice, the Minister must recognise that there is a fundamental difference between not letting premises to someone in the first place and turning them out on to the street. There is a fundamental difference between those two actions. Turning people out on to the streets who may have been living in the premises for years with their families is fundamentally different from saying that they cannot rent premises from tomorrow or next week or whenever.

[James Brokenshire]

The hon. and learned Gentleman is right to make the distinction, which is why the decision on whether a notice should be served has to be triggered by the Secretary of State, with all the duties and responsibilities that the Secretary of State holds. It is important to underline that because the Home Office will not invoke the eviction process or serve notices until a full consideration of family circumstances has been undertaken. Families who have initial application claims for international protection or human rights contentions will not fall subject to these proposals until their cases have been finally determined. That includes the conclusion of any appeal and, in most circumstances, any other outstanding legal challenges. Although the families will be given warnings throughout the eviction process that it may be invoked, they will be encouraged to make a case on why these measures are not appropriate to them.

The Home Office will consider the circumstances of each member of the family. Eviction will generally be inappropriate where there are existing medical conditions or specific care needs evident, and eviction may mean that a local authority is placed under a duty to remedy the loss of accommodation. There will also be cases where invoking eviction is considered inappropriate. These will be cases where the family involved is considered to have recognised barriers to returning home. These instances can include no viable route of return to their home country, difficulties in securing travel documents or in ensuring that their home country will accept the family’s return, and medical or health conditions that make it difficult for a family to return home.

The intent of the issuance of the notice is that the Home Office will have gone through that process. It is only at the end of the process of examination that the Home Office would seek to issue a notice to allow the process contemplated in clause 13 to operate. That is the approach the Government will take in the operation of this provision before getting to the point that the hon. and learned Gentleman elucidated.

[Keir Starmer]

I understand and recognise the considerations that the Home Office will have to give to any particular case, but it will make mistakes. There will be errors. There will be information that was perhaps not before the decision maker that should have been. Everybody understands that position. In an ordinary, sensible system, there would be a simple right of appeal to correct those errors, which in these sorts of cases can range up to about 30%.

What is the justification and the thinking behind going the long route of judicial review at the High Court rather than a much simpler appeal route? I accept the Minister’s point about injunctive relief, but that is neither here nor there. That is where a landlord does not have a proper notice and is not doing what he or she is entitled to do. That was not the position I was aiming at. Why is it necessary, given that there is an automatic right of possession, to remove the court from the process and to go back to self-help in this small group of cases? What is the necessity for that? The landlord goes through the process and gets possession from the court almost automatically, unless it is challenged. What is the justification for the long route—which will be costly—and for removing the court?

[James Brokenshire]

I go back to the principle of ensuring that when properties are occupied by tenants who have no lawful right to be in this country, there is a speedy process, as part of the removals process, to ensure that those individuals can be evicted. That mechanism is therefore in place as part of the removal process, in order to assist with that removal. That is the important point to understand: that is the group of people that we are talking about. There is also a process in cases where, for example, someone has left a property and the landlord wishes to bring matters to a formal conclusion as well, and notification has been given from the Home Office. The Bill provides a speedy mechanism to allow that.

In respect of the hon. and learned Gentleman’s key point about how this provision will lead to violence, violent eviction will remain an offence under the Criminal Law Act 1977. It is important to recognise that that would remain in place in this context.

[Keir Starmer]

I see the Solicitor General nodding his head. Is it his proposition that a landlord will not be allowed to use reasonable force to evict a family who will not physically get out of the door? That is not an offence.

[James Brokenshire]

The hon. and learned Gentleman has already highlighted the avenue that is available to the landlord in terms of relief that is provided by virtue of the order being from the High Court. That mechanism is therefore available to landlords seeking removal if that cannot be achieved by peaceable means. That is why I made the point that the Criminal Law Act 1977 remains in place.

In that respect there is also the issue of children, and I am aware that what the Secretary of State will do when these duties are undertaken has been of concern. We would not give an undertaking that a family with children will never be evicted under any circumstances. As I have already indicated, a family will not be subject to eviction if there are insuperable barriers to their returning to their home country. Families in private rented accommodation are unlikely to be destitute if they are renting in the first place, but at every stage in the discharge of functions relating to the family returns process and when issuing a notice in respect of a child who would be disqualified from renting, regard will be had to the need to safeguard and promote the welfare of children in accordance with the duty in section 55 of the Borders, Citizenship and Immigration Act 2009.

Again, I underline some of the safeguards which we already have within the family returns process. We have a family returns panel that examines the mechanisms and routes that are used to seek a removal of a family with children from the UK. The panel looks at the removal strategy; in essence, as moves are made towards deportation, the panel can and does comment on the removal approach. Equally, there are mechanisms in the context of section 55 that provide safeguards, as well as the practical operational steps that are embodied in the way in which immigration enforcement conducts its duties when removing family groups which, obviously, involve children.

--- Later in debate ---

[Keir Starmer]

We debated the clause when we debated the Government amendments and the amendment to make special provision for children. That has been dealt with, so I will say little more than this: if the clause is agreed, it will provide a mandatory ground for eviction in cases involving children, older people, those with mental health issues and so on.

[James Brokenshire]

I think all I will do in response is amplify some of the points I raised in the previous debate on notices by the Secretary of State and the factors that he or she would take into consideration as part of the removals process. I indicated that medical issues may be a factor that he or she can take into account when determining whether to issue a notice. The clause is part of that process and builds on the debate we have had.

Question put and agreed to.

Clause 14, as amended, accordingly ordered to stand part of the Bill.

Clause 15

Extension to Wales, Scotland and Northern Ireland

--- Later in debate ---

[Anne McLaughlin]

I start by asking the Minister whether he will acknowledge that housing is a devolved responsibility. Lengthy provisions in the Bill affecting housing for those already in the country are in effect housing legislation under an immigration banner. The Law Society of Scotland believes that the residential tenancy provisions will require a legislative consent motion to be placed before the Scottish Parliament. My understanding is that the Minister disagrees with that. It is clear that the Bill affects all landlords and tenants in Scotland and thus fundamentally alters a sector for which legislation is devolved. Moreover, it is clear that the changes are not merely incidental. Calling it the Immigration Bill does nothing to change the fact that it substantially alters housing law in Scotland.

The Bill allows for the measures on residential tenancies to be brought into effect in Scotland simply through a regulation-making power. That power specifically prevents functions being conferred on Scottish Ministers and means that the regulations can revoke, amend or repeal any Act or order made by the Scottish Parliament. That would enable the Minister and the UK Government to use secondary legislation powers simply to overturn primary legislation on matters devolved to the Scottish Parliament without its consent and often against its will.

What has happened to the respect agenda? Where is the constitutional principle that the UK Government will not legislate on devolved matters in Scotland without the consent of the Scottish Parliament, which clearly represents the Scottish people? The Bill also runs counter to clause 2 of the Scotland Bill, which is being considered here in Westminster and is intended to recognise that principle in statute.

If the Scotland Bill is passed next week and the Immigration Bill is not amended, would I be right to tell the people of Scotland that this British Government have no regard for Scotland’s right to legislate on devolved matters? Given the enthusiasm with which the UK Government have embraced English votes for English laws, could some people not rightly suggest that it is perhaps a little hypocritical to attempt to ride roughshod over the will of the Scottish Parliament?

The Law Society of Scotland highlighted some other concerns. When issues such as asylum support, taken together with the housing law measures, are also taken into account, the changes to devolved functions such as local authorities, health, child protection and social work can no longer be described as incidental to a reserved matter, in this case immigration. Following the devolution referendum, it was clear that the settled will of the Scottish people was to have these issues decided in Edinburgh. It is also clear, given the SNP majority in Holyrood and the fact that only one Conservative MP was elected in Scotland, that these right to rent proposals do not have the support of the Scottish people or the Scottish Parliament. I propose that these provisions be removed from the Bill.

Of course, I am making the big assumption that the Minister is not going to rise to his feet shortly and tell us that this was an oversight and that he will of course amend the Bill to reflect the principle in clause 2 of the Scotland Bill and to include in the regulation-making powers in clause 15 a duty on UK Ministers to consult Scottish Ministers and to seek the Scottish Parliament’s consent to regulations before they are introduced. That would be the right thing to do and it would allow the Scottish Parliament to consult with relevant stakeholders in Scotland about these proposals.

[Keir Starmer]

If this is the appropriate time I shall speak to new clause 12, which is grouped with this. If it is not the appropriate time I shall wait.

[The Chair]

It is convenient.

[Keir Starmer]

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[James Brokenshire]

Clause 15 permits the Secretary of State to make provision that has a similar effect to the residential tenancy provisions in relation to Wales, Scotland and Northern Ireland, where different housing legislation applies. The intent behind these measures is to restrict the access that illegal migrants have to the private rented sector and, as such, they are not within devolved competence, as per the debate we have just had on the amendments. The intention is to extend the residential tenancy provision UK-wide. The clause specifies that regulations made under it may make provision that has a similar effect to any of the residential tenancy provisions in housing legislation in Wales, Scotland and Northern Ireland. The regulations may amend, repeal or revoke any enactment, including enactments contained in legislation passed by the devolved legislatures. They may confer functions on any person. However, they may not confer functions on Scottish or Welsh Ministers or the Northern Ireland Executive.

New housing legislation has been introduced in both Wales and Scotland that may come into force in advance of these provisions. As the application of these provisions will necessitate an amendment to Welsh, Scottish and Northern Irish legislation, there will need to be further liaison before the provisions can be commenced UK-wide. The intention is for the residential tenancy provisions to be brought into force in England first and in Wales, Scotland and Northern Ireland at a later date.

I assure Opposition Members that discussions with Wales, Scotland and Northern Ireland have already begun. We intend to take into consideration the housing Bills that the Scottish and Welsh Governments are progressing through scrutiny, and therefore continued engagement will take place in respect of the implementation of the regulations and the mechanism as set out in clause 15.

[Keir Starmer]

I do not want to waste the Committee’s time, but want formally to indicate that I do not intend to press new clause 12.

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

--- Later in debate ---

[Keir Starmer]

I am grateful for that explanation, but I want to clarify the position. I think, having listened to the Solicitor General, that the primary purpose of the clause is to enable a valid—on the face of it—driving licence to be seized for the purposes of revocation, and if it is not revoked or if it is challenged, it is returned. It would be helpful if the Solicitor General could confirm that that is the driving purpose of the clause.

[The Solicitor General]

I am grateful to the hon. and learned Gentleman. The position is that, for revoked and unrevoked driving licences, the power will be there to seize both. For example, a valid driving licence can be seized and proceedings then undertaken to revoke it because it is held by someone who ought not to be here.

[Keir Starmer]

I do not think we are at odds, but I need to ensure that I understand. The process is straightforward where a driving licence is invalid or already revoked, but if a licence is not revoked and is, on its face, valid, the purpose of the provision is to allow a revocation process to be completed.

[The Solicitor General]

Yes, that is right.

--- Later in debate ---

[The Solicitor General]

I would, Mr Owen.

In our evidence session, those points were, quite properly, put to the chief superintendent, and we received reassurances that it is all about intelligence-led policing and intelligence-led investigations by immigration officers. The provisions will not, in my view, lead to the random targeting of people based on their ethnicity. That would be wholly wrong and it is not something that the Government support.

As I said, the police will have cause to stop a vehicle; they may then check the driver’s circumstances, and then, if the driver is found to be an illegal migrant, the powers we intend to introduce can be used. There will not be a misuse of power, as the action taken will be based on information that is already available. Bearing in mind the demands that are placed on our investigative authorities, it is a sensible use of their resources. Certainly I, and the Government, will not encourage the authorities to randomly target individuals based on any arbitrary judgment about their status. I hope that that gives the hon. Lady the reassurance she seeks.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clause 17

Offence of driving when unlawfully in the United Kingdom

[Keir Starmer]

I beg to move amendment 75, in clause 17, page 19, line 39, at end insert—

“(1A) A person does not commit an offence under subsection (1) if they had a reasonable belief that they had legal right to remain in the United Kingdom and acted in good faith.”

This amendment would provide a defence for those prosecuted for driving while illegally in the UK if they can show that they had a reason to believe that they did have legal right to be in the UK.

[The Chair]

With this it will be convenient to discuss amendment 76, in clause 17, page 20, line 6, at end insert—

“(3A) Nothing in this Section shall prejudice the validity of insurance relating to motor vehicles.”

This amendment would ensure that the introduction of an offence of driving while illegally in the UK would not interfere with the validity of motor insurance.

[Keir Starmer]

I can be relatively brief. My underlying point, which I put to the Minister now, is that in the evidence we heard two weeks ago, it was made clear that the police did not seek the new power and that they had not found any gap in their ability to deal with drivers who did not have regular status. Will the Solicitor General, at least for the record, set out the evidential basis for the creation of a new criminal offence? I go back to a proposition I put forward last week that criminal offences should not be introduced unless there is a clear case of necessity and a gap in the provisions available to law enforcement. If the law enforcement witnesses have not found a gap or asked for this, it would be helpful for the Committee to know the basis for the provisions in the first place.

Amendment 75 is in keeping with my other amendments to provide a defence for those who have a reasonable belief that they have a right to remain in the UK. The problem with this offence, as with the offence of illegal working, is that it is quasi-strict liability—in other words, there is no defence in the Bill. I ask Members opposite simply to read the amendment and ask themselves why they think it is necessary to criminalise someone who:

“had a reasonable belief that they had legal right to remain in the United Kingdom and acted in good faith”.

Why is it necessary to criminalise someone in that position? If Members vote against the amendment, that is what they will do.

I use again the example I used last week or the week before, where someone has been sponsored but, unbeknown to them, there is something wrong with the sponsorship. They may therefore find themselves in a position where they do not have the status they should have, although they have a reasonable belief that they have a right to be here and they acted completely in good faith. What is the legal case and the moral case for criminalising a person in that situation? The measure applies only in a case of reasonable belief and only if the individual acted in good faith. What is the case for criminalising such an individual?

If the Minister indicates that amendment 76 is unnecessary, I will withdraw it. It is driven by a concern not for the driver of the vehicle but for the victim of a road accident. It introduces a whole new category of individuals where there is a concern that there is a possible consequence. If I am wrong about this, I will withdraw the amendment. A possible consequence of these measures is that otherwise valid insurance that would have been available to the victim of a road traffic accident will be unavailable, having been made invalid because of the driving offence that has been created by this section. That is a real concern to those who are concerned about victims of road traffic accidents.

[Sarah Champion]

As I said earlier, we do not have a problem with clauses 16 and 17. The two amendments are designed to protect innocents. If the Minister is able to confirm that protection is in place, either in guidance or in the Bill, we would like to hear it.

[The Solicitor General]

Let me deal first with the question raised by the hon. and learned Gentleman about the evidence. There is a loophole involving people who are unlawfully here—illegal migrants—who are driving with foreign-issued licences. The offence will cover all aspects of driving by migrants who are in the United Kingdom unlawfully.

Every year, about 10,000 queries are referred to the Home Office by the police relating to either road-side stops or vehicle stops. We do not have precise numbers on cases where an illegal migrant was found to be driving a vehicle, but of the one fifth of cases related to vehicle stops, about 10% relate to drivers who are in the UK legally. I am talking about a loophole here. I think it is right that we try to close that when it comes to covering all incidents in which the authorities through other intelligence and other reasons to stop vehicles come into contact with people who are here unlawfully. The provision is another important tool to deal with a matter of public concern.

I recognise the reasons behind amendment 75, but in my view it is very broad and very subjective. It will create scenarios, for example, in which a defendant might claim they had reason to believe they were in the UK legally, simply because they had misunderstood the date on which their leave expired. It would be difficult to prove otherwise and then the purpose of the offence is undermined.

Let me deal with offences of strict liability in the context of driving. This concept is not new. For example, the offence of driving while disqualified under section 103 of the Road Traffic Act 1988, as amended, is an offence of strict liability, so this is not a new departure, although the defence would be a new departure when it comes to driving offences of this nature.

[Keir Starmer]

I am grateful to the Solicitor General for his explanation. I readily accept that this quasi-strict liability is not uncommon when it comes to driving and disqualification. The difference is that if someone is disqualified, they know they are disqualified. If there were a situation in which somebody, perhaps through sponsorship, genuinely and simply did not know that their status was as it was and would come within this defence, is the Solicitor General’s answer that that is just tough?

[The Solicitor General]

Not quite. There are a couple of caveats. First, a person who is prosecuted for this offence has the opportunity before the court issues judgment to put in mitigation about their belief as to whether they were legally present in the UK, and that would affect any sentence that might be passed by the court. Also, the Crown Prosecution Service will have guidance to ensure that migrants are not inappropriately prosecuted for this offence. Should a migrant be able to genuinely show that they believed themselves to be legally present, the public interest test, with which the hon. and learned Gentleman is very familiar, would apply.

[Keir Starmer]

I am grateful—I can see where this is going. Obviously, any guidance will be for the CPS to draft. Will the Solicitor General be writing to the Director of Public Prosecutions to ask her to consider whether this matter should be included in the guidelines? Obviously, it would be a matter for her, but he could suggest that she consider it.

[The Solicitor General]

I am more than happy to draw the DPP’s attention to this debate, which I hope will be of assistance to her in drafting guidelines.

I assure the Committee that the offence is not aimed at victims of modern slavery who have been forced to drive. I hope that goes some way to answering the concerns raised by the hon. Member for Rotherham. As she is aware, the statutory offence under section 45 of the Modern Slavery Act 2015 will apply. If a person has been compelled to drive as a direct consequence of slavery or human trafficking, they will not commit this offence. Further, there are common-law defences. For example, it will remain a defence for someone to show that they committed the offence under duress, regardless of whether they are a victim of modern slavery. I have mentioned potential new guidance, and there is existing guidance from the DPP to ensure that victims of modern slavery are not inappropriately prosecuted. These are effective safeguards against the inappropriate use of the offence that hon. Members have expressed concerns about.

Amendment 76 has been tabled because of genuine concerns about the validity of motor insurance. We are exploring with the insurance industry the potential impact of the offence on policies, but I can give reassurance today that a person involved in an accident with an illegal migrant driver will be protected. By virtue of sections 151 and 152 of the Road Traffic Act 1988, insurers have certain liabilities to innocent third parties that they cannot exclude from insurance policies. Those liabilities derive from obligations under European law which mean that an innocent third party involved in a traffic collision with an illegal migrant driver will be entitled to make a claim on the illegal migrant’s insurance policy, even if the policy is voided as a result of the migrant being unlawfully present here.

--- Later in debate ---

[Keir Starmer]

I am grateful for those explanations and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Solicitor General]

I beg to move amendment 44, in clause 17, page 20, line 33, leave out “as to whether” and insert “not”

This amendment and amendment 45 clarify that a vehicle must be released where a decision is taken not to institute criminal proceedings for the offence of driving when unlawfully in the United Kingdom.

[The Solicitor General]

As we know, clause 17 inserts a new offence of driving while unlawfully present. Amendments 44 and 45 are technical in nature. They make clear that a vehicle must be released from detention where a decision is taken not to institute criminal proceedings for the offence of driving when unlawfully in the United Kingdom.

Amendment 46 ensures that a police or senior immigration officer may detain a vehicle at any place where they are lawfully present, including private property that is open to the public, such as a privately owned car park. Amendment 47 provides a power for the police or a senior immigration officer to enter premises, such as the suspect’s property, for the purpose of searching for and detaining a vehicle used in the commission of the offence. Those two amendments ensure that a person cannot frustrate seizure of the vehicle used in the commission of the offence by keeping it on private land, such as in a garage. Amendment 47 also provides that the power to enter premises may be exercised by a senior immigration officer or constable without warrant, where the officer knows the vehicle is present—for example, they can see the suspect’s car parked on the driveway. Where a senior immigration officer or constable has reasonable grounds for suspecting that a vehicle may be found on premises but does not know it is there, the amendment provides the facility to apply for a warrant enabling the officer or constable to enter premises to search for the vehicle.

The provisions for obtaining a warrant reflect certain differences in the legal, procedural and administrative framework governing the issuing of warrants between Scotland and the rest of the UK. In particular, the Scottish criminal justice system does not provide for warrants to be issued for multiple entries to multiple premises by constables in Scotland. These forms of warrants are a feature of the Police and Criminal Evidence Act 1984 in England and Wales. The amendment therefore makes special provision to disapply this form of warrant for constables in Scotland. I hope Scottish National party Members note that great care has been taken to ensure that the two systems dovetail in a way that is acceptable to everyone.

Amendment 48 ensures that a person accompanying a constable in the execution of a warrant, such as a person contracted by the police to remove and store a vehicle used in the commission of the offence, may detain that vehicle. It also provides that a constable may use reasonable force in order to detain a vehicle.

I invite the Committee to accept those amendments.

Amendment 44 agreed to.

Amendments made: 45, in clause 17, page 20, line 35, leave out “have been” and insert “are”.

See the explanatory statement for amendment 44.

Amendment 46, in clause 17, page 20, line 45, at end insert—

‘( ) A power in subsection (1) or (3) may be exercised by a senior officer or constable at any place at which the senior officer or constable is lawfully present.” —(The Solicitor General.)

This amendment makes clear that a vehicle can be detained by a senior officer or constable at any place they are lawfully present.

[Keir Starmer]

I beg to move amendment 74, in clause 17, page 21, line 30, at end insert—

‘(10A) Before laying regulations to bring Section 24D into force, the Secretary of State must ensure a pilot of the arrangements takes place.

(10B) Following the completion of the pilot mentioned in subsection (10A) the Secretary of State must prepare a report and lay it before each House of Parliament.

(10C) The pilot mentioned in subsection (1) must take place in a minimum of two police force areas and last for a minimum of six months.”

This amendment would ensure that the Home Secretary conducted a pilot of the proposed powers to allow police forces to confiscate the cars of suspected illegal immigrants before the measures were introduced.

I can deal with this amendment briefly. We have debated the provisions in the clause itself. Several concerns have been raised and several assurances have been given by the Government, but these are new provisions, so the amendment simply provides that they should be piloted before they are rolled out, partly to ensure that those assurances work in practice and partly because, when introducing new provisions of this sort, piloting is always a good idea to ensure that they work in practice. However, the substance of the debate has already been had, in terms of the concerns and assurances.

[Sarah Champion]

I was on the Select Committee for Transport and went out with the DVLA when it was doing some of its stops with police officers. I apologise for raising this question in this debate, but I did not know where else to raise it. I was shocked when the Minister said that 10,000 inquiries were made to the police last year. I know that the DVLA has vast concerns that it does not have the resources to investigate people driving illegal vehicles rather than illegal driving. How will the police, immigration and the DVLA work together? Also, has he considered the resources, which will be considerable if there are already 10,000 inquiries? Acting on those and investigating will be pretty resource-intensive. Can he comment on that?

--- Later in debate ---

[The Solicitor General]

Yes, I can. Perhaps I have not clearly outlined that we do not expect police officers to take on a whole new swathe of different inquiries, independent of already existing intelligence and information; rather, this provision is a bolt-on. It allows police officers to follow another reasonable line of inquiry as a result of the intelligence they have already obtained. The scenario that the hon. Lady is concerned about is not one that is going to come to fruition. This is about putting another tool in the box, rather than an expectation that there are suddenly going to be new independent operations as a result of these new powers. I hope that gives the hon. Lady some reassurance.

[Keir Starmer]

The Minister mounts a “Dukes of Hazzard” defence. I am not quite sure that is right, because this provision is focused on the confiscation of the vehicle rather than the moving vehicle, but he makes a persuasive argument about the technical issue, which is his best point, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 47, in clause 17, page 21, line 32, at end insert—

“24DA Powers to enter premises to detain motor vehicle

(1) A senior officer or a constable may enter and search any premises for the purposes of detaining a vehicle under section 24D.

(2) The power in subsection (1) may be exercised—

(a) only to the extent that it is reasonably required for that purpose, and

(b) only if the senior officer or constable knows that a vehicle which may be detained under section 24D is to be found on the premises.

(3) The power in subsection (1) may be exercised—

(a) by a senior officer (“S”) only if S produces identification showing that S is an immigration officer (whether or not S is asked to do so);

(b) by a constable (“C”) only if C produces identification showing that C is a constable (whether or not C is asked to do so).

(4) Subsection (5) applies if, on an application by a senior officer or constable, a justice of the peace is satisfied that there are reasonable grounds for suspecting that a vehicle which may be detained under section 24D may be found on premises mentioned in subsection (6).

(5) The justice of the peace may issue a warrant authorising any senior officer or constable to enter, if need be by force, the premises for the purpose of searching for and detaining the vehicle.

(6) The premises referred to in subsection (4) are—

(a) one or more sets of premises specified in the application, or

(b) subject to subsection (10), any premises occupied or controlled by a person specified in the application, including such sets of premises as are so specified (in which case the application is for an “all premises warrant”).

(7) If the application is for an all premises warrant, the justice of the peace must also be satisfied—

(a) that there are reasonable grounds for believing that it is necessary to search premises occupied or controlled by the person in question which are not specified in the application in order to find the vehicle, and

(b) that it is not reasonably practicable to specify in the application all the premises which the person occupies or controls and which might need to be searched.

(8) Subject to subsection (10), the warrant may authorise entry to and search of premises on more than one occasion if, on the application, the justice of the peace is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which the justice issues the warrant.

(9) If it authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.

(10) A justice of the peace in Scotland may not issue—

(a) an all premises warrant under this section authorising entry on premises by a constable, or

(b) a warrant under this section authorising multiple entries by a constable.

(11) In the application of this section to Scotland, references to a justice of the peace are to be read as references to the sheriff or a justice of the peace.

(12) In this section “senior officer” means an immigration officer not below the rank of chief immigration officer.”

This amendment provides the police and immigration officers with the power to enter premises in order to detain a relevant vehicle. This ensures that an illegal migrant who commits the offence of driving when unlawfully present in the United Kingdom cannot frustrate seizure by keeping the vehicle on private land.

Amendment 48, in clause 17, page 22, line 22, at end insert—

‘( ) In section 16(2A)(b) of the Police and Criminal Evidence Act 1984 (powers of persons accompanying constables in execution of warrants) after “seizure” insert “or detention”.

( ) In Article 18(2A)(b) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 22)) (powers of persons accompanying constables in execution of warrants) after “seizure” insert “or detention”.

( ) In section 146(2) of the Immigration and Asylum Act 1999 (use of reasonable force) before paragraph (a) insert—

“(za) section 24DA(1) (powers to enter premises to detain motor vehicle),”.”—(The Solicitor General.)

This amendment ensures that a person accompanying a constable in the execution of a warrant may detain a vehicle and that a constable may use reasonable force in order to detain a vehicle.

Clause 17, as amended, ordered to stand part of the Bill.

Clause 18

Bank accounts

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

[The Chair]

With this it will be convenient to discuss amendment 77, in clause 54, page 45, line 11, at end insert—

‘(4A) A statutory instrument containing regulations under subsection (1) in relation to Section 18 shall only be made after having been laid in draft before each House of Parliament and approved by a resolution of each House.”

This amendment would require the regulations bringing into force Clause 18 to be subject to debate and approval by the House of Commons and the House of Lords.

--- Later in debate ---

Other regulation-making powers in the schedule deal with questions of administrative detail and so are subject to the negative procedure. They will none the less receive parliamentary scrutiny. The code of practice on freezing orders must be laid before Parliament before coming into force. The bank accounts provisions cannot come into force until the necessary regulations are in place. I therefore invite the hon. and learned Member for Holborn and St Pancras not to press the amendment. I will ask that clause 18 and schedule 3 stand part of the Bill, but I know that there will further debate on amendments that I would be happy to respond to in the usual way.

[Keir Starmer]

Let me indicate to the Committee that our general approach to these provisions is not to oppose them. Clearly there have not been difficulties in the provisions that are already in law, and we did not see in either the written or oral evidence any concern expressed by those operating banks that this proposal posed an undue burden on them. I think that is probably because banks are used to carrying out a number of checks—not just, as it were, immigration checks, but all sorts of other checks that are required now.

The concern we are really driving at—if I may, I will stray into schedule 3, which is triggered by clause 18—is the position of an individual where there has been closure or suspension in error and loss as a result. It is in that spirit and that limited way that the point is being made. That is what amendments 93 and 94 are driving at: essentially to explore—and, if necessary, push on—what the position of the individual is where closure is made in error and loss results from that.

[The Chair]

Order. Just to be helpful, we will be taking those amendments separately, so there will be an opportunity to debate and vote on them later.

[Keir Starmer]

I am grateful for that clarification, Mr Owen. To some extent, given the way that it is set out, the amendment pretty well speaks for itself in any event. There is obviously a distinction between the freezing provisions and the closure provisions, in terms of the right of appeal open to individuals. It may be that the Minister can give a degree of assurance about how that will operate, but the reason I raised it at this stage is because amendment 77, requiring scrutiny, is to some extent premised on the concern about that limited class of individuals. I take it together in that way, but I hope I have made the sprit clear. This is about being supportive of the approach, but also exploring and seeking assurances on what happens in the case of an error that could be very costly to the individual.

Question put and agreed to.

Clause 18 accordingly ordered to stand part of the Bill.

Schedule 3

Bank accounts

[The Solicitor General]

I beg to move amendment 22, in schedule 3, page 70, line 35, leave out “or a court of summary jurisdiction”.

This amendment and amendment 23 change the definition of “relevant appeal court” for appeals in Northern Ireland. The effect is that an appeal against a decision by a court of summary jurisdiction in Northern Ireland to make a freezing order is made to a county court instead of the Crown Court.