Oral Answers to Questions

Keir Starmer Excerpts

Thursday 14th January 2016 Commons Chamber

[The Attorney General]

My hon. Friend will recognise that we are some way away from that. I know he will also recognise that, as I said in my initial answer, I cannot discuss in the Chamber or elsewhere legal advice that I may or may not give to the Prime Minister. I hope my hon. Friend will therefore forgive me for not doing so now.

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

One of the risks of leaving the EU is that the UK will no longer be able to rely on crucial EU criminal justice measures to fight serious and organised crime and terrorism. Has the Attorney General given any advice on that risk, and if so, to which Departments?

[The Attorney General]

I am afraid that I am going to sound like a broken record. I think the hon. and learned Gentleman, like most Members of the House, understands full well that I cannot discuss in the Chamber the advice that I may or may not have given to the Government, and I am not going to do so.

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

12. What discussions she has had with her ministerial colleagues on securing long-term funding for domestic violence services.

[The Parliamentary Under-Secretary of State for the Home Department (Karen Bradley)]

The Government have already announced £40 million of funding for domestic abuse services between 2016 and 2020, as well as a £2 million grant to Women’s Aid and SafeLives to support early intervention. We will shortly publish a refreshed cross-Government violence against women and girls strategy setting out how we will do still more to secure long-term funding for domestic violence services and support for all victims.

[Keir Starmer]

Domestic violence is an enduring stain on our society, and while Government funding is welcome, a long-term sustainable approach is needed. What discussions has the Minister had with service providers, including Rape Crisis, about the long-term solutions, and what does she consider to be long term in this context?

[Karen Bradley]

I thank the hon. and learned Gentleman for his questions. I must admit, I am used to seeing him on the Front Bench, but it is nice to see him anyway. As part of refreshing our violence against women and girls strategy, I have taken part in a number of round tables with service providers, commissioners and others to make sure that we understand the issues facing them and to look at that long-term solution, because he is absolutely right: service providers need to know that their funding is on a sustainable footing, so that they can continue to deliver services and focus on victims, as we all want them to do.

Oral Answers to Questions

Keir Starmer Excerpts

Thursday 26th November 2015 Commons Chamber

[The Attorney General]

The hon. Gentleman and I have already discussed the question of consultation with the Scottish authorities, and I am fully in favour—as are colleagues in the Ministry of Justice—of ensuring that the devolved Administrations are fully engaged in that consultation process. As to whether a legislative consent motion would be required, that would depend entirely on the nature of the proposals. We have not yet seen them, and it is important that we should consider them properly when we do.

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

7. What steps he has taken to ensure that the measures relating to the Law Officers Department in the comprehensive spending review enable the Crown Prosecution Service to prosecute cases effectively.

[The Attorney General (Jeremy Wright)]

Throughout the spending review process, I have been keen to ensure that, while saving money wherever possible, the CPS received sufficient funding to prosecute its current case load effectively. I believe that the settlement we have achieved does indeed do that, and I particularly welcome the £4.4 million that has been ring-fenced for the CPS counter-terrorism division, which will nearly double in size, and the extra funding provided to recruit 100 additional prosecutors to deal with serous sexual offences.

[Keir Starmer]

Should I need to declare an interest, I should tell the House that I was the head of the Crown Prosecution Service for five years, from 2008 to 2013.

One of the reasons that the CPS has coped well with the cuts in the past five years is that the case load of referrals from the police has gone down. What level of assurance can the Attorney General give me that if the case load goes up significantly or becomes more complex, further funding will be made available to enable the CPS to carry out its service?

[The Attorney General]

As the hon. and learned Gentleman would expect, if circumstances change in that regard, we will speak to the Treasury again about money to be made available to deal with them. The settlement takes account of, and helps us to deal with, the substantial changes and significant shifts in the case load that took place over the time when he was Director of Public Prosecutions and subsequently.

Immigration Bill (Fourteenth sitting)

Keir Starmer Excerpts

Tuesday 10th November 2015 Public Bill Committees

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

I beg to move amendment 230, in schedule 8, page 114, line 9, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

To limit powers of search to the ship, the port and as conveniently as possible thereafter, not anywhere in the country.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 233, in schedule 8, page 114, line 22, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

See explanatory note for Amendment 230.

Amendment 239, in schedule 8, page 116, leave out lines 4 to 6

To prevent persons accompanying immigration officers carrying out searches in accordance with this part of the Bill.

Amendment 242, in schedule 8, page 116, leave out lines 13 to 18

To remove the immunity from prosecution and civil suit for constables and enforcement officers exercising powers under the Bill.

Amendment 231, in schedule 8, page 118, line 32, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

See explanatory note for Amendment 230.

Amendment 234, in schedule 8, page 118, line 45, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

See explanatory note for Amendment 230.

Amendment 240, in schedule 8, page 120, leave out lines 26 to 28

See explanatory note for Amendment 239.

Amendment 243, in schedule 8, page 120, leave out lines 35 to 40

See explanatory note for Amendment 242.

Amendment 232, in schedule 8, page 123, line 9, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

See explanatory note for Amendment 230.

Amendment 235, in schedule 8, page 123, line 22, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

See explanatory note for Amendment 230.

Amendment 241, in schedule 8, page 125, leave out lines 4 to 6

See explanatory note for Amendment 239.

Amendment 244, in schedule 8, page 125, leave out lines 13 to 18

See explanatory note for Amendment 242.

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[The Chair]

I am grateful to the Minister.

[Keir Starmer]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Power to stop, board, divert and detain”

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

[The Minister for Immigration (James Brokenshire)]

I hope that, with our clarifications and assurances, hon. Members will realise our purpose and intentions. We are taking the power because of a gap in the law. Until now, there has been a small number of relatively isolated incidents involving suspected facilitation in UK territorial waters. However, those incidents illustrate a gap in the legislation. Border Force officers currently have no powers to act unless the vessel is also of customs interest. In those circumstances, they have to pass the information to immigration officers on land and monitor the vessel’s movements while it remains at sea.

We judge that that gap in the law needs to be addressed to reflect the difference between powers that could be exercised for customs purposes and powers that could be exercised for immigration purposes. It is an issue if the powers cannot be exercised in the context of a vessel that is considered to be smuggling people rather than contraband, given the risk that organised crime groups, as we are seeing elsewhere, may over time seek to smuggle in a different way. The purpose of the schedule is to be prepared and to have the right legislative framework in place to be able to respond to any such risk in UK territorial waters.

Amendments 230 to 235 seek

“To limit the maritime search powers under the Bill to the ship, the port and as conveniently as possible thereafter”.

The amendments raise concerns, as the hon. and learned Gentleman, the shadow Minister, and the hon. Member for Paisley and Renfrewshire North have highlighted, about whether the powers could be exercised anywhere on land. For ease, I will simply refer to the part of the schedule that deals with England and Wales, but I assure hon. Members that the same provisions equally apply, in certain other aspects of the schedule, in respect of waters adjacent to the coasts of Scotland and Northern Ireland.

The power to search in paragraph 3 of new schedule 4A only applies to a search of the ship, anyone on the ship and anything on the ship, as the hon. and learned Gentleman highlighted. The Bill does not limit where the power may be exercised in order to ensure that there are no gaps in the power. He was rightly probing and testing as to the intent of the term “elsewhere”. In part, it ensures that there is provision to arrest a person should they jump overboard to evade enforcement officers. Given the nature of the powers that we are seeking to provide, that could be entirely possible, whether they jump into the water or, if the vessel is in more inland waters, on to land. We need to be able to ensure that the provisions are operable in those circumstances. That will not be possible if the provision is limited to a ship or a port. I reassure the Committee that the test in paragraph 3(1) of new schedule 4A to the Immigration Act 1971 connects the exercise of the powers with suspicion regarding the ship. I hope that that connection may be helpful in giving an understanding of what we are trying to get at here.

[Keir Starmer]

This is in the nature of a probing intervention to ensure that I understand the Minister. The search is constrained by new paragraph 3(2) and I understand the reasoning, but there is no power of arrest in the paragraph; there is only a power of search. So sub-paragraph (8) would not help in the circumstance where someone jumps overboard and needs to be arrested. If someone jumped overboard, they could only be searched. I am probing because I do not quite understand the logic, but it may be that I am not quick enough.

[James Brokenshire]

That is connected to sub-paragraph (3), which states:

“The relevant officer may require the master of the ship, or any member of its crew, to take such action as is necessary for the purposes of sub-paragraph (2)(c).”

Obviously, the officer would require the ship to be taken to a port. That is connected to the ability to search, as the hon. and learned Gentleman has highlighted. There may be circumstances, for example, in which someone jumps off a ship and is rescued by officers where a search may be appropriate under the exercise of that power. We are trying to cover such circumstances. I recognise that he is fairly seeking to probe on that, and I hope my answer is helpful.

Amendments 239 to 244 would ensure that only the officers specified in the Bill can use the powers, and would remove the protection of officers from personal, criminal and civil liability. I will address those two points separately. The provision permitting powers to be exercised by accompanying officers reflects existing powers under other legislation—most notably, the powers recently considered by the House in the Modern Slavery Act 2015. The extension of powers to assistants also exists in general for those working alongside customs officers under section 8 of the Customs and Excise Management Act 1979.

In my opening comments I sought to explain the arrangement that Border Force officers have responsibility for revenue protection, as well as for the border, and they utilise those powers when they are on board cutters. We have therefore sought to ensure that there is no mismatch between customs powers and immigration powers. Other examples in the maritime context include paragraph 5 of schedule 3 to the Criminal Justice (International Co-operation) Act 1990, concerning powers to combat drug smuggling.

The reason why such powers may be given to assistants is not to permit untrained individuals to exercise those powers, but to ensure effective joint working with partner agencies that have at least a basic level of law enforcement training. The measure permits officers from partner organisations who may be working alongside enforcement officers, such as fisheries inspection officers, to assist immigration officers. It is important to emphasise the requirement that such persons must still be supervised.

On the protection of officers against civil and criminal liability, the measure extends only to personal liability; it does not prevent a claim for which an employer may be vicariously liable. When a court considers that officers have acted in good faith and that there were reasonable grounds for their actions, we think it is right from a public policy perspective that they are not held personally liable for carrying out their duties and acting in good faith. There are many other examples of where law enforcement officers are given equivalent protection. I understand that the principle has long been part of English law—prior to this sitting, the Solicitor General and I were discussing that it can be traced back to section 6 of the Constables Protection Act 1750, which I am assured remains in force today. Members may not have anticipated that they would be referring back to certain legislation in Committee, but the Solicitor General has come across the 1750 Act, which I underline.

With those reassurances, I hope that the hon. and learned Member for Holborn and St Pancras will recognise that the measure is not an extension of the law but builds on existing legislative practices and principles. I therefore ask him to reflect on what he fairly said are probing amendments to gain a better sense of our intent and the purpose and nature of schedule 8. I hope that he is minded to withdraw his amendment.

[Keir Starmer]

I am grateful to the Minister for those assurances. I wonder aloud how long that immunity provision, however long-standing it is, can survive. The idea that people are immune from criminal law in that way is hard to reconcile with later legislation, but that is a much bigger argument than the one we are having now. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 109, in schedule 8, page 114, line 17, leave out “detain” and insert “retain”.

This amendment and amendments 110 and 112 are minor drafting changes for consistency with language used elsewhere in the Schedule and have no substantive effect.

Amendment 110, in schedule 8, page 118, line 40, leave out “detain” and insert “retain”.

See the explanatory statement for amendment 109.

Amendment 111, in schedule 8, page 122, line 6, leave out “(in England and Wales or elsewhere)” and insert “in the United Kingdom”.

This amendment is a minor drafting change for consistency with the language used in the equivalent provisions for England, Wales and Scotland.

Amendment 112, in schedule 8, page 123, line 17, leave out “detain” and insert “retain”.—(James Brokenshire.)

See the explanatory statement for amendment 109.

Schedule 8, as amended, agreed to.

Clause 37 ordered to stand part of the Bill.

Clause 38

English language requirements for public sector workers

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

[The Solicitor General]

Clauses 38 to 45 deal with the question of English language requirements for public sector workers.

I will deal with the subsections of clause 38 in turn. Subsection (1) sets out the requirement for public authorities to ensure that each of their workers in customer-facing roles speak fluent English. I know you will have an interest in this, Mr Owen: clause 43 provides specifically that where there are statutory duties in Wales, the requirement includes fluency in English and in the language of heaven. All members of the public who access public services need to be able to understand the information provided and be confident that their needs are thoroughly understood. Ensuring that that is the case will not only create better and more efficient services for taxpayers but will contribute to meeting our manifesto commitments to promote British values, in a positive and appropriate way.

Subsection (2) will require all public authorities to have regard to a code of practice when deciding how to comply with the duty set out in subsection (1). Of course, public authorities will have an opportunity to help shape that code of practice by responding to the open consultation that has been live since 13 October and will run until early December. Copies of the consultation documents have been placed in the Library of the House.

Subsections (3) and (4) will require each public authority to operate a complaints procedure. Citizens must, of course, be able to report their experience of a customer-facing worker not speaking fluent English. Public bodies must consider and respond to those complaints.

Subsections (5), (6) and (7) explain that a worker in the scope of the duty will be someone working under a contract of employment or of apprenticeship with a public authority, as a contractor to do work personally for a public authority, as an agency worker or as a police officer, civil servant or member of the armed forces. Speaking with members of the public must be a “regular and intrinsic part” of their role.

[Keir Starmer]

There is some concern that such a clause could operate in a discriminatory manner, with complaints and assumptions being made about what is fluent English and who is able to speak fluent English. Will the Solicitor General give an assurance that effective measures will be put in the code or elsewhere to ensure that any potential discriminatory effects and consequences are mitigated or eliminated?

--- Later in debate ---

[The Solicitor General]

I am grateful to the hon. Lady for sharing her anecdotal experiences, but the Home Office has done pre-consultation modelling, based on the proportion of over-16s in employment in the public administration, education and healthcare sectors according to 2011 census data—those are important, objective, statutory data obtained from the British population. According to that modelling, about 3.6 million employees are within the scope of the proposed duty and about 1.5 million employees in Great Britain, excluding Northern Ireland, are subject to English language standards, so an extra 2.1 million employees will be newly affected by the duty. We anticipate that between a low of 8,500 workers and a high of 25,000 workers may not have the required standards of English fluency. There is objective evidence upon which we can base this policy.

The policy is not designed suddenly to change the game or somehow create a wholly new structure that will alter the balance and change societal attitudes towards people who have a heavy accent. I include myself in that—I know the hon. Lady is as proud of her accent as I am proud of mine. We are seeking to standardise and enhance the position of people who have come to this country to work and who might have a different ethnicity or background. They will be employed under the same objective criteria that will be applied to everybody else in the public sector.

[Keir Starmer]

Will the Minister give way?

[The Solicitor General]

I will give way in a moment, but first I want to read a highlighted extract from the draft code of practice consultation relating to complaints. I hope that it will help the hon. Lady. Paragraph 4.5 says:

“Public authorities are not obliged by this Code of Practice to respond to complaints that are vexatious, oppressive, threatening or abusive. These should be given their usual dictionary meaning and could be defined as those complaints that are without foundation and/or which are intended to result in harsh or wrongful treatment of the person referred to in the complaint. In these types of circumstances a complaint should not be allowed to continue.”

I commend that paragraph to the House.

[Keir Starmer]

In so far as the measures extend the existing duties on public authorities to consider the requirement in the first place, they do not go much further than the existing position, but I think that the hon. Lady is pointing at the complaints procedure, which the Minister just touched on. Will he assure the Committee that the only complaints that the provision is intended to open up are complaints against the public authority for failing to carry out its duties, and not complaints made about an individual? That would give a considerable degree of assurance that there is no intention for the measures to allow anyone to say, “I am complaining about X,” when what they are really complaining about is public authority Y, which has not done its job properly. There is a big difference in terms of how the complaints procedure would then be used.

[The Solicitor General]

I can confirm that paragraph 4.1 of the draft code says:

“This section of the Code is about the procedure a public authority should take should there be a complaint regarding a breach of the fluency duty.”

That means a complaint against the public authority for having breached that duty. There are no sanctions in part 7 that could be applied directly to staff. As I said, it is a duty for the public authority.

[Keir Starmer]

This is an important point. Can the Minister write to us on that specific issue? It also arises from clause 41(2)(c), according to my reading; I think that he would provide assurance if he wrote to the Committee—to me and other hon. Members—to say that that is the intention of the complaints procedure. One can see the scope otherwise for concern about complaints.

[The Solicitor General]

I understand entirely, and I am happy to do so. I assure the hon. and learned Gentleman and any Committee members concerned about consequences for staff that dismissal would be a matter extremely far down the line in these procedures. We are talking about improving systems. That does not entail an ad hominem attack on individuals; it is about the public authority and any perceived failure on its part.

[Keir Starmer]

I am grateful for the assurance about frivolous and other vexatious complaints. I know from having 9,000 staff of my own that what causes great anxiety is the fact that a complaint has been made to the individual, even if some weeks or months down the line it might be ruled out. If a number of complaints are made about a particular member of staff, that will increase anxiety hugely. The greater the clarity that the Minister can give here, the better. For a member of staff, simply knowing that a complaint might be knocked out in three months does not affect the anxiety that they feel when doing in their job.

[The Solicitor General]

I take point made by the hon. and learned Gentleman, and that made by the hon. Member for Glasgow North East. I will write to the Committee, as I have indicated.

On the question of bureaucracy, the measures take a minimalist approach. The code of practice will guide public authorities to align their actions regarding the new duty with existing practice. We expect a minimal expansion to existing procedures to suffice. Our open consultation will allow any concerns about bureaucracy to be raised and taken into account.

--- Later in debate ---

[The Solicitor General]

The hon. Lady has mentioned a body that operates its own minimum standards. I envisage that where organisations are already doing that work, it will be a fairly easy task for them to satisfy a code of practice, but again, I would be interested to hear what they have to say as part of the consultation. I am sure that the intention is for dovetailing in any expansion of the duty, so that we standardise it across the whole public sector, thanking those particular outliers for being proactive in the area.

[Keir Starmer]

Again, this is by way of seeking assurance. This discussion is in the context of an Immigration Bill, but the measures will cover all individuals. Can the Minister give an assurance that careful consideration will be given to how the measures apply to individuals with any kind of learning or speech difficulty, regardless of background, ethnicity and so on? There is the potential for impact on people who fall into those categories. I know that that is not the intention, but we would gratefully receive a high level of assurance.

[The Solicitor General]

I am happy to give that. From my own understanding and experience of such issues, I am extremely keen to ensure that people who are fluent but who might, due to disability, express themselves slightly differently, are not discriminated against in any way.

On the question of setting a single standard, again, to enlarge the point that I was making, because the public sector has such a broad range of customer-facing roles, whether they be heart surgeons or parking enforcement officers, different particular standards will be appropriate. Therefore, the code will guide public authorities to set a standard that is proportionate to the nature of the spoken interaction that is an integral part of each role. To reinforce the point that I just made to the hon. and learned Gentleman about discrimination, public authorities, like all employers, are prohibited from discriminating against members of staff and job applicants by the terms of the Equality Act 2010, under which disability is a protected characteristic. Of course that will be relevant to individuals with a speech impediment.

[The Solicitor General]

I hear the hon. Lady, but I must remind her that we are talking about public authorities, which have had to, quite rightly, adapt their practices to take into account legislation such as the Equality Act 2010, which consolidated and enhanced a number of other statutes passed over a generation or more, which in turn dealt with racism, disability discrimination and so on. They were Acts of Parliament passed by all parties in this House. I would be as distressed as she if a public authority misused in any way what I would submit are the benign duties in the clause to reverse the progress that we have made. It is not about whether somebody looks or sounds different; it is about basic standards of proficiency and fluency that will improve public services.

[Keir Starmer]

I apologise for adding to the shopping list of assurances, but it is done, I hope, in the right spirit and with concern that is shared across the House. This problem might have been addressed, but there must be some public authorities that use sign language for some of those deemed to be customers or service users. Those fluent in sign language may not in fact be able to speak fluent English. Perhaps there is an obvious answer to this—if there is, I apologise—but the words “speaks fluent English” in clause 38(8) cause me some concern. There may be an easy reassurance. If there is, I will be assured.

[The Solicitor General]

I am grateful to the hon. and learned Gentleman for raising an issue in which I take a personal interest—the use of British sign language and other means for deaf people to participate in all aspects of our mainstream life. To parenthesise for a moment, I am sure that he would be interested in the work that I am doing to explore why deaf people cannot serve on juries, for example. It seems to me wholly ridiculous, but that is the position at the moment. Perhaps we can talk about that offline.

A British sign language interpreter is of course arguably a reasonable adjustment that is provided under an employer’s duty towards staff with a disability under the Equality Act 2010. That would be part and parcel of a person’s work; so to use it as a basis for suggesting lack of fluency would be wholly wrong and self-defeating. It is important to remember that people with disabilities, with reasonable adjustments, increasingly form part of the mainstream workforce. The provision is not designed to cut across that.

I think we all benefit from the fact that people with different ethnic origins work in our public services. Whatever they sound like and wherever they are from we welcome them all; but it is important—and they would agree—that we make sure there is a basic standard, to ensure that all sections of society have the fullest confidence in our public services. The measure goes a long way to protect our public servants.

--- Later in debate ---

[Gavin Newlands]

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

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

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

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

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

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

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

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

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

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

[Keir Starmer]

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

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

[Anne McLaughlin]

In the immigration debate that took place in the Chamber, I spoke about a child who had been in detention. I know that the policy, notwithstanding what my hon. Friend the Member for Paisley and Renfrewshire North said, is no longer to detain children, but I want to repeat what I said about that child, and I will explain why.

I talked about a 10-year-old boy who was detained with his mother in Dungavel in Scotland and was then moved to Yarl’s Wood. He lost 10 lb in three weeks and lost so much hope that he turned to his mother one day and whispered, “It would be easier if we died. Mummy, please can we die?” I appreciate that there is not a person in this room—I have absolutely no doubt—who, if that child were standing in front of them, would not do whatever they could to help that child. This was somebody I knew pretty well.

Okay, so we only detain adults now, but I am not willing to believe that there is any Member here who, if they had a woman standing in front of them who had been through so much trouble to get here, who was a victim of sexual violence, and they could make the decision about that one person standing there, having heard her story, would not help her. I do not believe that any of us would not use the key that we have to free her from detention if we were able to do it. They are not standing in front of us now, but we are the ones who hold the key to whether those people suffer in the way that many hon. Members have described. That mother wanted to comfort her child. She wanted to reassure her child that it would be over soon, that “this will be happening” in two weeks or one week, three days or three months or whatever, but she could not. She could not reassure herself because she had no idea how long they were going to be there.

I think that the worst thing for people is not having a clue when or where it is going to end. I visited a family in Dungavel a number of years ago, as an elected Member of the Scottish Parliament and I felt intimidated. I felt intimidated by the surroundings and the uniforms, by the big jangle of the keys, by the prison-like atmosphere and the fact that I was fingerprinted. I was a Member of the Scottish Parliament and they fingerprinted me as I went in. If I felt intimidated, what must it feel like to somebody who has absolutely no control over their life, and has not had any for a long time because they have had to flee their country and ask for help in a foreign country? I cannot imagine it.

I pay tribute, as my hon. Friend the Member for Paisley and Renfrewshire North has done, to the organisations that support people in detention. I particularly encourage the organisations that demonstrate outside such facilities to continue to do so, because it makes a big difference to the people inside. There was a demonstration at Dungavel a couple of weeks ago. I know people who went, although I was unable to attend.

--- Later in debate ---

There is also a practical disadvantage in an arbitrary time limit. People in a non-compliant removal case could simply disrupt their removal for 28 days in the knowledge that they would be released from detention. Sadly, there are people who play the system in that way.

[Keir Starmer]

On the question of “indefinite”, surely the detention is indefinite in the sense that there is no definite limit to it. The detention might not be unending, but it is indefinite in the way that we all understand “indefinite”.

[James Brokenshire]

Indefinite detention implies detention that cannot be brought to an end. For reasons of bail and the relevant principles in common law, the detention has to be linked to the ability to remove.

If we look at the cohort likely to be in detention for longer, the vast majority are foreign national offenders. That is the reality we are dealing with. There might be challenges that we are working through on identification, so that they may get the relevant travel documentation, or they might take other measures to prevent their removal. There are a number of challenging policy issues in this area, but I underline the policy principles that exist in respect of why detention is there and why it is linked to removal. Equally, I underline the relevant safeguards.

Hon. Members might say that non-compliant cases could be added to the regulation that sets out cases where the 28-day limit does not apply, but the use of the detention power is increasingly focused on non-compliant individuals to ensure their removal. In reality, even if the clause was founded in that way, there would be little impact if non-compliant cases were added to the list.

I recognise what hon. Members have said about ending the detention of children for immigration purposes. I am proud that the Government have introduced measures to ensure that the routine detention of children under immigration powers is used only in very, very limited circumstances. Equally, we do not detain individuals for age-assessment purposes. In cases in which an individual is held in an immigration removal centre and doubts arise as to whether they are an adult, we aim to release them immediately into local authority care, pending an age assessment.

I recognise that we are discussing a controversial policy area, but I underline the fact that we are dealing with the details. There are a range of public policy views and objectives that need to be advanced, but ultimately there are clear safeguards in the system. We will continue to reflect carefully on the issues of vulnerability, but I hope that, given those assurances, the hon. Member for Sheffield Central is minded to withdraw the new clause.

--- Later in debate ---

[James Brokenshire]

On a point of order, Mr Owen. As this may be our last opportunity as a Committee to recognise your contribution to the Bill in ensuring that our consideration is in order and in adding to the good-natured spirit of our proceedings, may I, on behalf of the Committee, thank you for your chairmanship? We have very much appreciated your guidance and assistance, which has added to our consideration of the Bill.

[Keir Starmer]

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

[Gavin Newlands]

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

Immigration Bill (Eleventh sitting)

Keir Starmer Excerpts

Thursday 5th November 2015 Public Bill Committees

[The Solicitor General]

We are talking about the 18-month period between 16 and a half to 18 years of age. That is the period we are dealing with. I have already made the point about age in previous debates, but I will develop the point I was making just now. For example, if a 17-year-old who lives in the UK with members of their wider family has made a human rights claim to stay that has then been refused, and if they have parents or family in another country to whom they can return and successfully establish their life there, these provisions might apply. To develop the general point about the interests of children, the welfare of children will continue to be a primary consideration in decisions by virtue of statute under section 55 of the Borders, Citizenship and Immigration Act 2009, so each case will be assessed depending on individual circumstances.

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

The Solicitor General is dealing with a very important point and reassuring us that an assessment will be made, particularly when it involves children, but how precise will that assessment exercise be? How will the detailed circumstances be ascertained and what is the remedy if it is thought that a wrongful decision has been made?

[The Solicitor General]

The hon. and learned Gentleman has hit upon the more general point about successful appeals. It is wrong to assume that the reason for the number of successful challenges to Home Office decisions lies fairly and squarely at the door of the Home Office and any failures that it might exercise in using its discretion. We have due process, and he will of course be aware that when an applicant makes an application, they should do everything they can to provide the fullest evidence and information about their situation at the earliest opportunity. I would think that evidence about the welfare needs of children would be at the forefront of any applicant’s mind, or the minds of those who are instructed to represent them. It is therefore vital—this is a good opportunity for me to put this on the record—that everybody involved in such proceedings understands that early reliance on comprehensive evidence is essential if we are to avoid the issues that the hon. and learned Gentleman rightly raises.

On the handling of children’s cases, revised guidance has now been published following the recent Court of Appeal judgment, which we are well aware of, and is now available on the gov.uk website.

[Keir Starmer]

It may be my fault for not expressing myself clearly enough, but in relation to the assessment of the impact on a child who is required to appeal from abroad—which is a different assessment from the ordinary assessment of an impact on a child—how is that to be conducted? What is the guidance? For example, does the guidance say more than six months for a child under 10? Is separation from a parent acceptable or unacceptable? What is the guidance for the decision maker if they are presented with two children under 10 and a possible separation of six to 12 months? Are they told that that is okay or not okay?

[The Solicitor General]

The hon. and learned Gentleman has asked a specific question about the wording of the guidance. I am at a slight disadvantage because I do not have it to hand. It might be that I can get a response to him about that. However, guidance that goes into huge prescriptive detail on time limits or time indications is not really guidance. Guidance must give decision makers discretion and allow them to look individually on a case-by-case basis.

[Keir Starmer]

rose—

[The Solicitor General]

I will finish this point, then the hon. and learned Gentleman can by all means intervene again.

I want to give the Committee an example about individual circumstances. An example of where the welfare of a child might make a case unsuitable for certification by the Secretary of State is if the individual whose article 8 claim has been refused is acting as the primary carer for a child, even temporarily—for example, if the child’s parents had separated and the parent who is normally the primary carer is unavailable to take care of the child temporarily and the other parent is caring for the child while their appeal is being determined. In that example, welfare issues clearly come into play.

In each case, individuals will be asked to provide any reasons why the power should not be applied in their circumstances, which will be fully considered. Of course, they will be able to challenge the decision to certify; we must not overlook that important point. The decision to certify is an administrative decision that can be challenged by judicial review.

[Keir Starmer]

I want to probe the question of guidance. The Solicitor General’s example is of a primary carer. Unsurprisingly, it is not thought a good idea to certify in those circumstances—that case makes itself. The Children’s Commissioner published a report about a month ago about the impact of different rules, including the rules about the income requirement that must be met before a spouse can join a family, which focused on the impact on the child of not having access to one parent for months, and sometimes years. Has the Solicitor General or the Department taken those findings into account? They seem to be pertinent here, given the impact on a child of not having contact with one parent for a prolonged period.

[The Solicitor General]

The hon. and learned Gentleman makes a powerful point, but those sorts of considerations can be taken into account by the decision maker.

I now have to hand the guidance on the Nationality, Immigration and Asylum Act 2002 issued by the Home Office. The latest version is dated 30 October, so it is fresh off the printing press. The section 55 duty is described in paragraphs 3.6 to 3.8 inclusive, which I will read for the record:

“When considering whether to certify a human rights claim pursuant to section 94B, the best interests of any child under the age of 18 whom the available information suggests may be affected by the deportation decision must be a primary consideration.”

That is a very helpful start.

“Case owners must carefully consider all available information and evidence to determine whether or not it is in the child’s best interests for the person liable to deportation to be able to appeal from the UK. This is particularly relevant in considering whether deportation pending appeal would cause serious irreversible harm to the child. The case owner must also consider whether those interests are outweighed by the reasons in favour of certification in the individual case, including the public interest in effecting deportation quickly and efficiently.”

That is the balancing exercise in a nutshell.

Paragraph 3.7 might help the hon. and learned Gentleman:

“Case owners must carefully assess the quality of any evidence provided in relation to a child’s best interests. Original, documentary evidence from official or independent sources will be given more weight in the decision-making process than unsubstantiated assertions about a child’s best interests or copies of documents.”

Paragraph 3.8 states:

“For further guidance in relation to the section 55 duty, see…Section 55”.

It also contains links to an introduction to children and family cases and to criminality guidance for article 8 ECHR cases. I think that is a helpful encapsulation of the balancing exercise that decision makers have to carry out.

[Keir Starmer]

I want to explore that guidance. For clarity, if the assessment states that there will be serious harm to the child, but it would not be irreversible, that suggests that the decision maker would go ahead with the decision and certify. Is it right that the harm has to be serious and irreversible?

[The Solicitor General]

The hon. and learned Gentleman is right to read the words in that way. We do not have the words “and” or “or”—we are back to “and” or “or”. He and I like these arguments because they are important; we do not indulge in them for the sake of semantics. However, what I am referring to is guidance, so it takes a different form from primary legislation or secondary legislation. It allows decision makers to get clear in their minds what the balance should be. There is a public interest in swift and efficient deportation. The party that the hon. and learned Gentleman represents had no issue with the principle when it introduced this power or when it was extended in the 2014 Act, so that principle is something on which he and I can agree.

--- Later in debate ---

[Keir Starmer]

I am grateful to the Solicitor General for setting out the provisions of clause 31 in detail. The clause is a wide extension of the powers that I accept already exist in relation to a limited class of individuals and will now cover very many people who are appealing their cases. I urge the Government to consider the impact, particularly on children, of separation in these and similar circumstances.

I have already mentioned the report by the Children’s Commissioner. I appreciate that the context is slightly different in that usually in those cases the spouse is already abroad, but the report gives powerful testimony about the impact on children of being unable to have any meaningful contact with one of their parents for a prolonged period. I do not think that has been assessed and taken into account in the guidance that has just been mentioned, because the timing probably would not have allowed that, but such separation should be considered and taken into account, and there should be a proper impact assessment of the existing remove first, appeal afterwards provisions.

We can dance around article 8, and we can argue as lawyers about whether or not that article has been breached, but among the most powerful points in the Children’s Commissioner’s report of a month ago were the human stories of the impact of suddenly depriving a child of one of their parents for a prolonged period. The report contained stories of children who were highly distressed because their father or mother was no longer available to them for contact for a prolonged period. Some of those families came to the launch and gave their evidence.

Sometimes we need to step out of these Committees and step out of our lawyerly, political selves. I am the father of a four-year-old and a seven-year-old. I heard those families describing what it was like trying to get their children to bed—the crying and distress during month after month of separation. In some cases it may well be that article 8 is breached and in some it may not be, but that is highly distressing for the children, and as a father I found it highly distressing to hear their testimony. I thought about what I would feel if I were separated from my children, whom happily I see nearly every day, for just a week or two. We should not lose sight of the idea of being separated for six months or a year because it does not tick the box of crossing a threshold into article 8, or any other legal provision. This measure will have a profound impact on human lives, and we need to approach this debate with that in mind.

The Solicitor General kindly gave us the statistic of a 42% success rate for appeals, which he puts forward as evidence that there is no obvious detriment in appeal after removal, but let us start by focusing on that figure: 42% of those removed won their appeal. So 42% of the families—if a family is involved—who suffered the human distress that I have described, whether or not there was a breach of the law, succeeded on appeal. That is an alarmingly high success rate in those circumstances.

[The Solicitor General]

The hon. and learned Gentleman is making a proper point about that, but we must be careful not to fall into the trap of assuming that that success rate is always due to failure by the Home Office. It is not. Very often it is due to the applicant’s failure to provide evidence that clearly would have helped in a timely way. It is not fair to keep beating the Home Office over the head for the failures of others.

--- Later in debate ---

[Keir Starmer]

I accept that, and I would accept the wider proposition that some cases will succeed on appeal without that necessarily meaning that the decision can be retaken with the same result, but it is still a high success rate compared with other areas of the law. It may well be that information has not been provided in the way that it should have been; equally, it may be bad decision making by the Home Office. I am trying not to overuse the 42% figure, but it is high.

[Simon Hoare (North Dorset) (Con)]

I have an ongoing case involving constituents of mine in which the quality of their immigration solicitor’s advice was, frankly, shocking. The hon. Member for Rotherham and I have had a conversation outside this place about this case. It amplifies the point made by my hon. and learned Friend the Solicitor General that a lot of legal advisers see this process as a gravy train: if they can provide slightly dodgy advice that does not get the person through the first time, hey presto, here is another piece of advice, another bill and another instruction to act on. Surely to goodness either the Bar Council or the Law Society should provide better and tighter guidance on quality for those people who are often advising under-resourced and vulnerable people.

[Keir Starmer]

I recognise some of what the hon. Gentleman has said. As he indicated, where that is a problem, it is for the professional bodies to regulate better or follow up in individual cases, and nothing that I say should stand in the way of that, but I do not want to step outside the human aspect. Ultimately, in cases where that is an issue, it is the individual who is removed who suffers as a result; if children are involved, it is the children who suffer. If an appeal is successful because bad advice was given months or years earlier and something relevant was not put before the decision maker or court, but it has come to light and been put before an appeal court, the impact on the individual who is not at fault should not be lost.

That is one difficulty with the proposed scheme for removing individuals. However, I recognise some of the picture that the hon. Gentleman has painted, and I agree that where professional follow-up can take place, it should as it would help in such cases. It is, however, also a fact that many appeals take a long time. If decision making were of a higher quality and decisions were quicker, a lot of the concern would evaporate, and we would not be debating the need for deport first, appeal later provisions.

I come to the practicability of appealing from abroad. We are familiar with the notion of a hearing in this jurisdiction. In some ways, a hearing is not dissimilar to the exchanges we have across this Committee Room, where physical human beings make submissions and listen to what is said against those submissions. Here, we have you, Mr Owen; in court, we would have a judge. That judge listens to the exchanges, takes into account the evidence and comes to a decision. Anybody who has ever been in any court of any form will know that many cases are determined through those exchanges, with the decision maker making their mind up as the process unfolds. Attention can be drawn to a particular piece of evidence, a point can be rebutted and additional evidence can swiftly be put before the court or the tribunal, if it is necessary to do so. If a judge has questions, they can be dealt with there and then by the parties.

That is how we have been doing things for 200 years —certainly in the criminal context—and it is a highly effective way of resolving differences between the parties. It is a very different experience if someone is appealing from abroad. In the first place, their submissions will probably be made in electronic or hard, written form way before the hearing. There is no prospect of the sorts of exchanges that get to the truth or resolve the critical issues between the parties. Until recently, it has been possible for some individuals to have representation in the proceedings, notwithstanding the fact that they are abroad. I have a question for the Solicitor General: if the proposed residence test for legal aid comes into force, will that effectively mean that, for this large, extended category of individuals, the prospect of any representation is gone once they are removed, unless they have private money? That is a serious consideration. That proposal would fundamentally change how the scheme operates, when taken with the proposed change before us.

[The Solicitor General]

I can assist the hon. and learned Gentleman there. The position on legal aid is not altered by an individual having to appeal from overseas. Legal aid is not available for article 8 appeals before the tribunal, regardless of whether the appeal is lodged from overseas or within the UK. I hear the point he makes, but the issue he raises is immaterial to the question of legal aid. He also asked about residence, and I will see whether I can get a specific response on that.

[Keir Starmer]

I am grateful. I realise that may not be easy, so if the Solicitor General writes to me or the Committee, I will be grateful. The question was: what impact, if any, will the proposed resident test for legal aid have on those exercising their right to appeal from abroad? I would be happy to receive the answer by way of a letter.

There is, however, a more fundamental point here. There is a very real difference between a hearing at which the individuals are present and able to deliberate and to make submissions in the way I indicated, and one where the individuals are abroad. So my next question is: what practical steps will be taken to ensure that the procedure is as effective as it can be? To break that down: what steps are being taken to ensure that evidence can be made available by way of video, using the technologies available? As I understand it—the Solicitor General will correct me if I am wrong—an individual’s ability to use technical means to appear virtually, as it were, in the courtroom depends on the courtroom being set up to receive such evidence, and not many are. It is for the individual to finance that from wherever they have been removed to and I do not think that the procedural rules for such proceedings have been amended sufficiently to allow that to happen with any great ease or regularity.

Accepting those very real differences between a live appeal and an appeal from abroad, what steps are being taken to ensure the best possible access and ability to participate by those who have been removed? That would include steps to ensure that there is an exchange of submissions, rather than just a set of submissions that are put in in the first place. In other words, how does the appellant abroad deal with the points that the tribunal wants to make as the tribunal begins to make up its mind?

--- Later in debate ---

[The Solicitor General]

The words I used are the words of the Court of Appeal—not as advantageous—but that does not mean prejudicial. The points that the hon. Gentleman raises are a summary of the points raised by the hon. and learned Member for Holborn and St Pancras about the process itself, which I will try to help with in due course, but there is a difference. If the Court had come to the conclusion that there was a clear gap—an injustice gap—for individuals, I am sure the decision of the Court of Appeal would not have supported the submissions made by Lord Keen, the Advocate General.

On the point raised by the hon. Member for South Shields, I will write to her and set out the position in full. The point made by the hon. Member for Paisley and Renfrewshire North about going further and using the statute to exclude children from the scope of the power is, with respect, an unnecessary step to take for the reasons that I hope I have clearly outlined about the necessary protection that children enjoy under section 55 and the guidance. I do not think that going a stage further would serve any particular purpose, however well intentioned.

The hon. and learned Member for Holborn and St Pancras raised important points. I want to try to do justice to them in turn. First, I will deal with the issue he raised about the important report by the Children’s Commissioner. I remind the Committee that the power does not represent a blanket approach. It allows caseworkers to individually consider the impact on individual children—that human element that he prayed in aid so powerfully—and the range of possible effects that a decision to certify might have.

[Keir Starmer]

I wonder whether that is right. As I understand it, decision makers take into account whether there is serious and irreversible harm, not the distress and anxiety that I was talking about. The Children’s Commissioner’s report gives examples of children wetting the bed, being highly distressed for weeks on end, and so on, which may not reach the test of serious and irreversible harm—I do not know. People will argue differently about that, but it is highly distressing, and it is highly distressing to hear about it. Distress will probably be taken into account, but it certainly will not enable the decision makers lawfully to determine against certification.

[The Solicitor General]

I caution the hon. and learned Gentleman against using the term “test” about serious, irreversible harm. We must not forget that the overall test is the article 8 test. We are talking about the guidance. Of course, there will be input from the family, and there might be input from the school and social workers. Those people are best placed to provide evidence about what the impact will be.

It is a reality in our society that many parents and children have to live separately temporarily. Many parents work away—many in this room are in that position—and many are on active service and have to spend long periods of six months or more away from their children. I do not minimise—I really do not, from my own experience—how that affects the family dynamic and the effect that that has on children, but we have to be careful not to single out that category of individuals and say their experiences are sui generis, unique or wholly different from those of other families in those circumstances.

Family separation is sometimes in the best interests of the children. I can think of examples—although not involving examinations, because they take place when children are older—involving children who need a stable term in school, perhaps because they have particular special needs. We should be proud that our country leads the world in special needs provision. I can think of examples involving children who can be supported more effectively in special needs education in the UK. I hope that gives at least some insight into the Government’s thinking on the nuances that will appear in the cases.

The hon. and learned Gentleman made a point about the process itself. He said he is concerned about the fact that the process and procedure of out-of-country appeals are different from that of the hearings that he and I are familiar with. Technology is increasingly used in our courtrooms and, as he knows, the use of virtual technology is often in the best interests of children and vulnerable witnesses, in particular. We are exhorted, and indeed mandated, through statute and practice direction to use such mechanisms increasingly to move away from the effects that what I would call traditional court proceedings can have on individuals. His point is important, but I want to put it in context.

[Keir Starmer]

I do not want to be misunderstood. I championed the use of digital working in our courts. There was a very good pilot in a Birmingham court for criminal cases. However, it took a lot of resource and very good modern technology to make virtual hearings as close as humanly possible to actual hearings. Is the Solicitor General able to say whether steps will be taken for similar arrangements in these cases?

[The Solicitor General]

I am able to give the hon. and learned Gentleman this assurance. If a person appealing from overseas submits that oral evidence is needed, an application can be made to the tribunal for evidence to be given via video link, Skype or telephone. Of course, we have specialist immigration judges who are best placed to make an informed decision about whether the quality of the evidence will be enhanced if it is given in that way. That is similar to the tests that are applied up and down the country every day, increasingly as a matter of course, when it comes to the use of TV links, for example.

Immigration Bill (Tenth sitting)

Keir Starmer Excerpts

Tuesday 3rd November 2015 Public Bill Committees

See the explanatory statement for amendment 22.

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

I beg to move amendment 93, in schedule 3, page 72, line 8, at end insert—

‘(8A) The Secretary of State shall provide any individual she determines to be a disqualified person with the information resulting from her checks under 40C(1) that led to this determination.

(8B) The Secretary of State shall provide an individual she determines to be a disqualified person, and any person or body by or for whom the relevant account is operated, with compensation in accordance with [New Clause: 40HA Compensation], where that determination is found to have been incorrect.”

[The Chair]

With this it will be convenient to discuss amendment 94, in schedule 3, page 72, line 8, at end insert—

“40HA Compensation

(1) This section applies where—

(a) a person is determined by the Secretary of State (following a check under 40C(1)) to be a disqualified person;

(b) the Secretary of State provides notification to the bank that the person is a disqualified person under section 40C(3) or 40D(7);

(c) the bank closes an account or prevents an account being operated in compliance with section 40G; and

(d) the determination by the Secretary of State under 40C(1) is found to have been incorrect.

(2) Where subsection (1) applies, the Secretary of State shall pay compensation to—

(a) a person incorrectly determined to be a disqualified person;

(b) any person or body by or for whom the relevant account is operated.

(3) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State before the end of the period of two years beginning with the date on which the information resulting from its checks under 40C(1) is provided to the person incorrectly determined to be the disqualified person.

(4) But the Secretary of State may direct that an application for compensation made after the end of that period is to be treated as if it had been made within that period if the Secretary of State considers that there are exceptional circumstances which justify doing so.

(5) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.

(6) If the Secretary of State determines that there is a right to such compensation, the sum of £10,000 is paid.”

To make provision for statutory compensation from the Secretary of State to compensate the holder of a bank account where their account is closed or suspended by their bank in reliance on incorrect information provided by the Secretary of State as to the status of the account holder as a disqualified person.

[Keir Starmer]

I had the opportunity when we were discussing clause 18, which inevitably included a discussion of schedule 3, to speak to the amendments. I hope the Minister heard my concerns. I do not think I will make them any stronger by repeating them.

[The Solicitor General (Robert Buckland)]

I am grateful to the hon. and learned Gentleman for his observations. We believe amendments 93 and 94 are unnecessary and would create a disproportionately expensive bureaucracy around the provisions. The Home Office will only share the details of migrants who are liable for removal or deportation from the UK, such as those who have exhausted all appeal rights. Those will include people who have been served with a deportation order or enforcement papers or who have absconded from immigration control. They will be fully aware of the reasons why they are considered to be disqualified people. Those who are refused permission to stay will be warned in the Home Office decision letter of the practical consequences, including for their continued ability to operate a bank account in the UK. To require the Home Office separately to actively provide them with such information in every case where their data are shared would cause delay and waste resources. Details of the individuals are already shared with the anti-fraud organisation CIFAS for the purpose of enabling banks to comply with the Immigration Act 2014 and also to assist in the prevention of fraud. The accuracy of the data is subject to rigorous checks by the Home Office before it is shared. This is reflected in the fact that the Home Office receives very few complaints or inquiries from banks or individuals regarding the current sharing of data arrangements under section 40 of the 2014 Act. Only three official complaints have been received since the Home Office started to share data with CIFAS in 2011.

Under the new provisions, the Home Office will be notified by banks when they believe that an account holder is a disqualified person. It will then carry out a further thorough check before the bank will be required to take any action to close an account. The bank will be notified if circumstances have changed and the person is no longer disqualified. This double check will act as a further safeguard to make sure that the bank acts on the most up-to-date information. Individuals whose accounts are subject to closure will be told by the bank of the reason why, provided that it is lawful to do so. If, despite all the checks, a person still considers they are lawfully present and that incorrect information has been provided, they will then be given the information they need to swiftly contact the Home Office so that any error can be rectified.

As is currently the case with data provided to CIFAS, the Home Office will be able to correct any mistake in real time so that the person’s details will immediately be removed from the data that are shared with the banks. That will be a far swifter and more effective means of correcting any error than in the process proposed in the amendment. If an account is closed, any credit balance will not be withheld from the individual, but returned to them by the bank in the normal way. In the unlikely event that an account is closed by mistake, the situation can be swiftly rectified in the way I have described without the serious consequences for the individual that have understandably been envisaged by the hon. and learned Gentleman. We believe the proposed compensation would therefore be disproportionate in the circumstances, and I invite him to withdraw the amendment.

[Keir Starmer]

I am grateful to the Solicitor General for his explanation and reassurance as to how it is intended the scheme will work. Would he be good enough to write to me or to the Committee, setting that out, since it is not in the Bill?

[The Solicitor General]

I am happy to write to the hon. and learned Gentleman. That is now on the record.

[The Chair]

That is helpful.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3, as amended, agreed to.

Clause 19

Powers in connection with examination, detention and removal

[Keir Starmer]

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[The Solicitor General]

The hon. Gentleman’s interpretation is interesting. I am sure it would be an attractive submission to make were the issue to be revisited, particularly in litigation. It is nearly 30 years since that case. Since then, the Home Office has relied on it. There has been no attempt by a Government of any colour to redefine things and go back to what he would describe as the original 1971 position. There must be a very good public policy reason for that; that reason is simply that it is entirely reasonable to allow the immigration authorities to have a little more time and space, based upon a reasonable suspicion, in which they can question a person who they reasonably suspect might be an illegal immigrant. The published guidance reflects the Singh v. Hammond judgment. It makes it clear that before any inquiry begins, there has to be reasonable suspicion.

My concern is that if the power of examination is limited only to the point of entry, we could have—perversely—an increase in people being arrested, because the power to ask questions is, as I said, not a power of arrest, but a different type of power. It allows people to give a reasonable explanation before we get to the stage of any apprehension or arrest, which I think is a good thing. I would not want to see a perverse situation where, in effect, the immigration authorities are shooting first and asking questions afterwards. I am sure that the hon. Gentleman would agree that that sort of approach would definitely inflame the situation and lead to the perverse consequences that we all worry about.

[Keir Starmer]

I have listened very carefully to the Minister’s explanation and justification. It must follow that operations at tube stations or other places against a number of individuals, based perhaps on what they look like, would be outwith the guidance and outwith the Minister’s explanation and role.

[The Solicitor General]

I entirely agree. If their operations relate to other intelligence—for example, on organised fare dodging or some sort of illegal activity on the tube that was either antisocial or worse—then clearly, that joint working would be very important and would reflect the best intelligence-led operations. We are all keen to eliminate a random use of these powers that would be arbitrary and would not, in my judgment—and I am sure, in any reasonable person’s judgment—reflect the criteria set out in the Singh case and reflected in guidance ever since.

[The Solicitor General]

I fully expect that any revised guidance notes published to reflect any changes passed in this Act will be a faithful reflection of the case law as we have outlined it today. I am absolutely sure that my colleagues in the Home Office will keep these matters under continuous review. If, indeed, a body of evidence emerges that challenges the position I have outlined today, I am sure that colleagues would look at that. It would perhaps be wrong of me to commit to anything specific today, but the hon. Lady has placed her concerns on the record for all to hear, and I am sure that the observations that we have made in this debate will be heard in another place and at other stages before the Bill, as we hope, eventually becomes law.

The final point I want to make is that I do not think that anybody wants to see the lawful and proportionate operations of our immigration authorities severely hampered. My genuine fear is that however well intentioned this amendment might be, it would lead to a hampering of those operations. Therefore, for those reasons, I urge Opposition Members to withdraw the amendment.

[Keir Starmer]

I am grateful to hon. Members for setting the context within which the powers that now exist operate and to the Solicitor General for his explanation. I accept that technically, in a number of legal respects, there is a difference between stop-and-check and stop-and-search, but I am not convinced that the impact on community relations follows from what are legal distinctions. In other words, I am not sure that the public out there quite accept and understand the nuances that we in this Committee might understand as the differences between the two, and there are real concerns about the way in which the existing power is being exercised. In the end, this comes back to the words that the Solicitor General used, which I jotted down. He said that it makes sense to have a little more time and space, and that that would avoid action possibly being taken on arrival that need not be taken. That is true in the sense that this is supposed to be a power that is excisable on arrival, but it very quickly moves from a little more space to a generalised power that has been exercised in the way that has been described. On that basis, I do not withdraw this amendment.

--- Later in debate ---

[The Solicitor General]

I do not want to criticise the hon. Lady for repeating an important point but, as I have already said to her, it is vital to remember that these powers are going to be exercised in a proportionate way, based on genuine intelligence. They are not going to be exercised in a scattergun way that would demand a significant increase in resources. We are confident that the proposals and powers we propose to introduce will make it easier for immigration officers to take that action and remove some of the understandable practical obstacles that exist with administrative procedures such as this, which then end up with a civil consequence as opposed to a criminal consequence. In short, at the moment it is easier for immigration officers investigating a criminal offence to search and seize than it is when it comes to the more practical measure of enforcing the civil consequences of decisions made after due process. This is a harmonisation of powers, if you like—let us remind ourselves that this is not a new power of entry. It relates to a time when immigration officers are already lawfully on the premises. It is a reasonable and proportionate measure. I think that the concerns that the hon. Lady raises are therefore met by the increased flexibility that the authorities are now going to enjoy.

[Keir Starmer]

As I think the Minister accepts, powers of search and seizure in connection with the imposition of civil penalties are rare in our law. There are other examples, but they are rare. The usual circumstances are for search and seizure powers to be in connection with the imposition of criminal penalties. The question I want to put to the Minister is, what is the principle? I do not think that anybody would argue that it is sensible to move to a situation where all civil penalties give rise to a power of search and seizure and therefore there is a sub-class that may have these powers connected to it. What is the principle behind this clause and that sub-group of civil penalties that attracts the search and seizure powers?

[The Solicitor General]

Putting it as simply as I can, the principle is that we want to ensure that, rather than having to resort to the use of criminal sanction—which, although it might mark the commission of offences and impose a punishment and penalty on individuals, could properly be seen as a disproportionate use of state power—we can resort to what, as I have said, is perhaps a lesser used path but one that is still within what the hon. and learned Gentleman and I would regard the bounds of compatibility with the European convention on human rights and our existing law. It is a proportionate use of powers. I remind the Committee that this is not a power of entry. Immigration officers have to be lawfully on the premises before these powers can be used—and, of course, there have to be reasonable grounds to suspect that the person with regard to whom the powers are being used may be liable to be detained and removed from the United Kingdom. There is a caveat, too: the search should only be to the extent reasonably required to find the documents, so a complete top to tail, fingertip search of the house, which would be wholly disproportionate, would not be within the particular use of this power.

I will give another example. There is concern about seizure of mobile telephones. Yes, there is a power to seize, but any such device on which electronic documents are stored will be seized only if it is not possible for the owner otherwise to produce the document in a visible and legible form. Again, that is an example of the proportionality and the safeguards that exist in this particular instance. I hope that on the grounds of principle and particular efficacy I have outlined what I regard as a middle way, which these provisions represent.

Question put and agreed to.

Clause 19 accordingly ordered to stand part of the Bill.

Clause 20

Search of premises in connection with imposition of civil penalty

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

--- Later in debate ---

[The Solicitor General]

Clause 23 inserts a new section 28ZI into the Immigration Act 1971 that provides for the retention of material seized by immigration officers for the purposes of a criminal investigation. This simply aligns the framework for the retention of anything seized by an immigration officer for a criminal purpose with that applying to police in England and Wales under the Police and Criminal Evidence Act 1984. That should be a welcome insertion that all Members will feel comfortable with, knowing that there is a harmonisation of the powers.

Question put and agreed to.

Clause 23 accordingly ordered to stand part of the Bill.

Clause 24

Search for nationality documents by detainee custody officers etc.

[Keir Starmer]

I beg to move amendment 197, in clause 24, page 30, leave out lines 13 to 16

To remove the power to conduct a strip search from detainee custody officers.

We now move to an area of considerable concern. The amendment would remove the power to conduct a strip search from detainee custody officers. The context in which the amendment is put forward is one of considerable concern for some time about the exercise of powers over those in immigration detention—a concern that I believe is shared across the House.

Clause 24 (1) provides:

“The Secretary of State may direct a detainee custody officer, prison officer or prisoner custody officer to exercise any of the powers in subsection (6) in relation to—

(a) a detained person who is detained in a removal centre, prison or young offender institution, or

(b) a person who is detained in a short-term holding facility.”

Subsection (5) provides that the relevant officer must then comply with the direction, with subsection (4) providing that the Secretary of State must have reasonable grounds to believe that,

“a relevant nationality document will be found if a power in subsection (6) is exercised in relation to the person.”

If we press on through the clause, we find a point that ties in with amendment 198—that the definition of nationality document is very wide. Under subsection (15) “nationality document” means,

“a document which might—

(a) establish a person’s identity, nationality or citizenship”.

A document that might establish a person’s identify is a very wide class of documents for all of us. Many documents might establish or help to establish our identity. This gives the Secretary of State a wide power to make a direction in relation to a wide class of documents where the relevant officer must then comply, and the power to include strip search in an environment and a context where there has already been heightened concern about the exercise of powers within immigration detention.

Those are the reasons why these amendments will be pursued. They are pursued with real concern about how the powers will be exercised, based on many points that have already been raised and the reports that have been written about this area.

[Sarah Champion]

There is frequent reference to a young offender institute. Does my colleague share my concern that this means that the power to strip search will also be extended to children?

[Keir Starmer]

Unless the Minister assures me otherwise, that is precisely how far the strip search provisions will go and it heightens the concern about the exercise of these powers. In those circumstances, a powerful case has to be made for the power to exist at all and for it to be as wide as it is, bearing in mind the definition to which I have already referred.

[Anne McLaughlin (Glasgow North East) (SNP)]

I want to focus on Clauses 24 and 25, which hand power to detainee custody officers to perform strip searches. Women are in this country because they have experienced horrific sexual abuse in the countries they have come from. Whether or not they can prove it, does not take away from the fact that they have experienced it. All sexual abuse is horrific and we have all heard truly harrowing stories. I would like to share one with Members.

When I was a Member of the Scottish Parliament, I attended an event addressed by an academic from the Democratic Republic of the Congo, who had sought and been given asylum here. She was addressing a group of MSPs and talked about how on the day that she published her academic research into the sexual abuse of women in the DRC, she got a phone call from her family to say that by way of punishment the army had come to her family home, taken her teenage niece, and stood in a circle round her. One by one they raped that child and the rest of the family was forced to watch. It goes without saying that that is incredibly horrific. She hoped to be able to bring her niece over to this country. I do not know whether she ever did, because I never heard from her again, but let us say that she did and her niece ended up here. Her niece, like many women who have experienced such things, will no doubt have a lifelong terror of anyone in uniform—male and female soldiers conducted the abuse—and of people in authority. If it is absolutely necessary for anyone to undergo a strip search, it has to be conducted with professionalism and sensitivity and must meet the highest standards, which means extremely experienced, highly trained officers.

--- Later in debate ---

[The Solicitor General]

This is one of the most important functions that we as a Committee can perform: not having artificial debates but putting on the record the concerns, using the evidence we have as Members of Parliament or, indeed, from our observation of important events at places such as Yarl’s Wood, then seeking clarification from Ministers. I hope that my colleague the Minister for Immigration feels exactly the same way I do—that this is an opportunity for the Government to put on the line what we expect the standards to be when it comes to non-intimate full searches.

[Keir Starmer]

I am grateful for the Solicitor General’s explanation, and I understand exactly the case he puts for the power, but there is sometimes, as he will understand, a gap between the words that go into Hansard as a result of this exchange and what happens on the ground. That is the real cause for concern, particularly in the light of the Yarl’s Wood example. What practical steps can be taken to turn the assurances the Solicitor General is rightly giving into reality on the ground?

[The Solicitor General]

We are going to provide additional guidance on the power to search under clause 24. That is for those who are directing the search on behalf of the Secretary of State and those who are conducting the search. Detainee custody officers, prison officers and prisoner custody officers are trained in the use of search powers, which includes strip searches. Detention services order 9/2012 provides instructions to detainee custody officers, and prison service instructions 67/2011 and 16/2014 provide instructions for searching persons in prisons and young offenders institutions respectively. We will build on those and ensure that the new provisions contain clear guidance.

The hon. Member for Rotherham made a point about the wording, “in the presence of”. We would say that the words are clear: it obviously means the person conducting the search as well. I hope that the explanation that I give as the Minister presenting the clause will be sufficient clarification to allay her fears on that point.

[The Solicitor General]

I was coming on to that very point. The power to search children in this way will only be used in exceptional circumstances. Let me explain the background. The Government’s policy is not to detain children in immigration and removal centres, so as part of the family removal process where children are held in a short-term holding facility a few days prior to removal, we believe that this search power will not be necessary because we will have the travel documents in place already.

Regarding young offender institutions, children under the age of 18 are exempt from the automatic deportation provisions for foreign national criminals, so one ground is already removed. Let me give me an example of exceptional circumstances. A 17-year-old male might be held in a young offender institution following a conviction of rape. He is facing deportation on conducive grounds because of this sentence and gang affiliations. If the Secretary of State has reasonable grounds to believe that he may have nationality documents in his possession, then it may be necessary for officers to conduct a full search in the way that we have described. I hope that gives the hon. Lady reassurance that we really are talking about exceptional circumstances, such as an older male who has perhaps been convicted of a very serious offence, where there is a clear public interest in making sure that all reasonable steps are taken before removal from the UK.

[Keir Starmer]

The example that the Solicitor General gives is a 17-year-old male. What does he see as the limits on children under the age of 17? At what age does it become inappropriate to ever exercise this power? I know that is a difficult question in general but this is a sensitive area. A 17-year-old male is one thing—he has given a good example, but there are clearly other examples of concern. What are the limits as the age goes down?

[The Solicitor General]

The only answer I can give is that it will depend on a thorough case-by-case analysis. For example, it might be somebody younger who is a persistent offender who has committed a very serious offence. It would be wrong to say that there would be a hard and fast threshold, other than one that would be based on a genuine case-by-case analysis. Many people in this room have had experience of the youth offending system. I think that with training and guidance, we can get this right and make sure that the power is not used in a disproportionate way that reasonable people would regard as an infringement and an inappropriate use of the power with regard to young people. [Interruption.] There is Ministry of Justice guidance which says that searches of males in young offender institutions must be risk based or following intelligence on a case-by-case basis. That is the guidance that will be followed. There will be a read-over and therefore the fear of randomness and of arbitrary judgment is removed by the use of that guidance and careful case-by-case analysis.

[Keir Starmer]

I appreciate that to some extent we are exploring the limits of this as we go along and I am grateful for the way that the Minister is dealing with that. It may be a simple question of reassurance but are there any circumstances where under this provision, a child under the age of 10 would be subject to a search? I do not think that would be available under any other provision in criminal law because they would be under the age of criminal responsibility. This is a genuine concern. I am not asking for an instant answer if it is impossible. It may be something that is better done in writing. I think for all criminal law provisions, 10 would be the lower trigger for obvious reasons.

[The Solicitor General]

I think, in asking the question, the hon. and learned Gentleman is almost answering the point. In that case, a child under 10 would not have been convicted of any criminal offence. That is an important start. I am happy to give the assurance that the measure would not apply to a child under 10.

[Keir Starmer]

Of course, the question answers itself regarding young offender institutions. I was not exploring that aspect but I am grateful for the Solicitor General’s assistance. My concern relates to those and any other centres. It is an exploring question, rather than one that may be capable of being answered straight off the cuff.

[The Solicitor General]

I am happy to give a direct answer. In any circumstance, this will not apply to children under 10.

[The Solicitor General]

Yes.

[Keir Starmer]

I have said all that I need to say on amendment 197. I wish to press the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[The Chair]

We now come to amendment 198 to clause 24. The hon. and learned Member for Holborn and St Pancras has briefly discussed the amendment but he needs to move it.

[Keir Starmer]

I beg to move amendment 198, in clause 24, page 30, line 45, leave out from “which” to end of line 2 on page 31 and insert

“establishes a person’s nationality or citizenship.”

To narrow the definition of nationality document to mean a passport or identity card for the purposes of custody officers, prison officers and prison custody officers who are given powers to search for nationality documents.

I think that the Solicitor General avoided eliding amendments 197 and 198, but I am not sure that I did; therefore, I have already made the point about amendment 198. He sought to give some assurances in his answers to my questions on the previous amendment. My question is the same. The category of nationality documents is potentially very wide. What practical steps can be taken to bring it within reasonable limits and ensure that it is exercised proportionately? It may be that it could go in the envisaged guidance, but it would be useful to have some reassurance about this category of document.

--- Later in debate ---

The Home Office requests nearly 1,000 emergency travel documents a month where no passport is held or can be used for removal. A proportion of these requests is not agreed because the individual we are seeking to remove provides incomplete or inaccurate information or their claimed nationality is disputed. Even when it is possible to obtain an emergency travel document, it can take several weeks, if not months, to do so. It is essential to retain the wider definition so that the proper policy aim of this clause—an aim that has not been disputed in the past—can be achieved. For those reasons, I would urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I appreciate that the definition has been used elsewhere. It is the combination of that definition with the strip search that is of such great concern, although in the circumstances, and given the assurances on strip searches, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.

Clause 25

Seizure of nationality documents by detainee custody officers etc

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

[The Solicitor General]

Clause 25, like clause 24, deals with a gap in the powers of officers charged with the care and security of immigration detainees and foreign national prisoners who are liable to deportation to obtain nationality documents to help the Home Office remove these people from the United Kingdom. As noted on a number of occasions, the ability to remove foreign nationals who have no right to remain here is often delayed by the need to obtain a passport or other travel document. We need to take all necessary steps to obtain those documents that will facilitate removal. This clause allows relevant officers to seize nationality documents that are found in the course of a routine search conducted using their existing powers and to seek the Secretary of State’s consent to retain that document and to pass it on to the Home Office where the Secretary of State has reasonable grounds to believe the document will help with the person’s removal from the UK.

Question put and agreed to.

Clause 25 accordingly ordered to stand part of the Bill.

Clause 26

Amendments relating to sections 24 and 25

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

--- Later in debate ---

[Keir Starmer]

I beg to move amendment 220, in schedule 4, page 77, line 33, at end insert—

‘(1) The Immigration and Asylum Act 1999 is amended as follows—

(2) in section 145(1) for “may” substitute “must”.”

Makes mandatory the issuing a code of practice that immigration officers must follow.

[The Chair]

With this it will be convenient to discuss amendment 221, in clause 54, page 45, line 9, at end insert—

‘(3A) Sections 19 to 28 shall come into force on a day to be appointed, that day being no earlier than the day on which the Secretary of State gives a direction under s 145 of the Immigration Act 1999 and lays before Parliament the codes specified in that direction.”

To delay the entry into force of the provisions in Part 3 Enforcement under the subheading “Powers of immigration officers” until such time as the Secretary of State has made a direction under s 145 of the Immigration and Asylum Act 1999 and has laid the codes specified in that direction before both Houses of Parliament.

[Keir Starmer]

Let me start by setting out the purpose of these two amendments. Amendment 220 is intended to make mandatory the issuing of the code of practice that immigration officers must follow. Amendment 221 would delay the entrance into force of the provisions of part 3—which concerns enforcement, under the sub-heading “Powers of immigration officers etc”—until such time as the Secretary of State has made a direction under section 145 of the Immigration and Asylum Act 1999, and has laid the code specified in that direction before both Houses of Parliament. The context here is an agreement across the House that there has to be care, professionalism, necessity and proportionality in the exercise of all the powers that we have been discussing this afternoon.

The amendments are prompted by the current mismatch between Home Office guidance and the successive reports of the chief inspector of borders and immigration. To elaborate on that, the Home Office guidance by and large suggests that enforcement raids on premises and businesses are directed on the basis of specific intelligence about an individual who does not have leave to be in the UK. However, successive reports by the chief inspector of borders and immigration paint a different picture. In the inspection that the chief inspector conducted from October to November 2013, he reported that 59% of the cases he examined lacked the required justification for the use of the power and that in a further 12% there was insufficient information for him to form an opinion. Taken together, that 71% is a very high percentage of cases that the inspector is reporting. There is a mismatch between the guidance being issued and what is happening on the ground.

In the same report that related to October and November 2013, the chief inspector reported high varying use of the power across the country. In south London it was used in two-thirds of illegal working operations, and in east London it was used in 3% of cases. Therefore, the purpose of the amendments is to bolster the provisions for a code, to make the code mandatory and to delay the provisions until the code is laid before the Houses of Parliament.

[The Solicitor General]

In essence, our objections to these amendments are, with respect, that they have no substantial effect, given that it is already the case that immigration officers’ coercive powers are subject to the Immigration (PACE Codes of Practice) Direction 2013 and that the specified codes themselves—that is, the PACE codes of practice—have been laid before both Houses of Parliament.

Section 145 of the Immigration and Asylum Act 1999 makes it mandatory that immigration officers should have regard to such provisions as the PACE codes of practice as may be specified. “Specified” means in a direction given by the Secretary of State. It is already the case that the 2013 direction applies the relevant parts of the PACE codes of practice to the powers exercised by immigration officers. This direction is available in the Libraries of both Houses and is also published on the gov.uk website. Hon. Members will be well aware that any changes to the PACE codes of practice are laid before Parliament. We will of course update the immigration direction to reflect the new immigration powers in part 3 of the Bill and will ensure that is done in time for the commencement of these enforcement powers.

The hon. and learned Gentleman raised some points about a criticism about the use of enforcement powers, for which I am grateful to him. I think it was Liberty that referenced some statistics from the independent chief inspector of borders and immigration’s report on the use of the power to enter business premises without a search warrant—that was published in March of last year. An internal review had already highlighted that as an area for improvement, and the inspector’s report noted the following:

“During the course of our inspection, the Home Office moved quickly to address the issues that we identified. This was positive and demonstrated that the Home Office was, for the first time, starting to exert a much stronger grip on how the power was used by its staff.”

I hope that that is encouraging information for all Members present.

Where immigration officers are entering premises using a warrant, in order for that warrant to be issued, they will have to have satisfied the court that there are reasonable grounds for suspecting that a person who is liable to be arrested for a relevant offence is to be found on the premises or that there are reasonable grounds for believing that material that is likely to be relevant evidence of an immigration offence is on the premises. The safeguards for the use of these warrants is set out in sections 28J and 28K of the Immigration Act 1971 and reflect those provisions in the Police and Criminal Evidence Act 1984.

In the light of those points, I hope that the hon. and learned Gentleman will agree to withdraw his well-intentioned amendment.

[Keir Starmer]

I am grateful for the Minister’s explanations and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 30, in schedule 4, page 78, line 1, leave out from “application” to “, or” in line 3.—(The Solicitor General.)

See the explanatory statement for amendment 24.

Schedule 4, as amended, agreed to.

Clause 28 ordered to stand part of the Bill.

Clause 29

Immigration bail

[Keir Starmer]

I beg to move amendment 115, in clause 29, page 33, line 13, leave out “bail” and insert “temporary admission”

See explanatory statement for Amendment 113.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 117, in schedule 5, page 78, line 29, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 118, in schedule 5, page 78, line 40, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 119, in schedule 5, page 79, line 2, leave out “bail to a person, grant that person bail” and insert “temporary admission to a person, grant that person temporary admission”.

See explanatory statement for Amendment 113.

Amendment 120, in schedule 5, page 79, line 11, leave out “immigration bail, in relation to a person, are to the grant of bail” and insert “temporary admission, in relation to a person, are to the grant of temporary admission”.

See explanatory statement for Amendment 113.

Amendment 121, in schedule 5, page 79, line 14, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 122, in schedule 5, page 79, line 15, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 123, in schedule 5, page 79, line 22, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 124, in schedule 5, page 79, line 24, leave out “immigration bail from when a grant of immigration bail” and insert “temporary admission from when a grant of temporary admission”.

See explanatory statement for Amendment 113.

Amendment 125, in schedule 5, page 79, line 26, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 126, in schedule 5, page 79, line 38, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 127, in schedule 5, page 80, line 1, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 128, in schedule 5, page 80, line 3, leave out “Immigration bail” and insert “Temporary admission”.

See explanatory statement for Amendment 113.

Amendment 129, in schedule 5, page 80, line 5, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 130, in schedule 5, page 80, line 11, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 131, in schedule 5, page 80, line 15, leave out ““bail condition”, in relation to a person on immigration bail, means a condition to which the person’s bail is subject.” and insert ““temporary admission condition”, in relation to a person on temporary admission bail, means a condition to which the person’s temporary admission is subject.”.

See explanatory statement for Amendment 113.

Amendment 132, in schedule 5, page 80, line 20, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 133, in schedule 5, page 80, line 21, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 134, in schedule 5, page 80, line 23, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 135, in schedule 5, page 80, line 28, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 136, in schedule 5, page 80, line 30, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 137, in schedule 5, page 80, line 37, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 138, in schedule 5, page 80, line 40, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 139, in schedule 5, page 80, line 46, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 140, in schedule 5, page 81, line 2, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 141, in schedule 5, page 81, line 7, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 142, in schedule 5, page 81, line 9, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 143, in schedule 5, page 81, line 10, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 144, in schedule 5, page 81, line 11, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 145, in schedule 5, page 81, line 13, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 146, in schedule 5, page 81, line 43, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 147, in schedule 5, page 81, line 44, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 148, in schedule 5, page 82, line 3, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 149, in schedule 5, page 82, line 9, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 150, in schedule 5, page 82, line 10, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 151, in schedule 5, page 82, line 35, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 152, in schedule 5, page 82, line 41, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 153, in schedule 5, page 82, line 43, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 154, in schedule 5, page 83, line 9, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 155, in schedule 5, page 83, line 22, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 156, in schedule 5, page 83, line 25, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 157, in schedule 5, page 83, line 33, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 158, in schedule 5, page 83, line 35, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 159, in schedule 5, page 83, line 41, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 160, in schedule 5, page 83, line 43, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 161, in schedule 5, page 84, line 2, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 162, in schedule 5, page 84, line 34, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 163, in schedule 5, page 84, line 41, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 164, in schedule 5, page 84, line 43, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 165, in schedule 5, page 84, line 47, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 166, in schedule 5, page 85, line 2, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 167, in schedule 5, page 85, line 3, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 168, in schedule 5, page 85, line 23, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 169, in schedule 5, page 85, line 25, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 170, in schedule 5, page 85, line 37, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 171, in schedule 5, page 86, line 5, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 172, in schedule 5, page 86, line 15, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 173, in schedule 5, page 86, line 18, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 174, in schedule 5, page 86, line 36, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 175, in schedule 5, page 87, line 2, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 176, in schedule 5, page 87, line 12, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 177, in schedule 5, page 87, line 31, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 178, in schedule 5, page 87, line 32, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 179, in schedule 5, page 87, line 35, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 180, in schedule 5, page 87, line 38, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 181, in schedule 5, page 87, line 42, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 182, in schedule 5, page 87, line 43, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 183, in schedule 5, page 87, line 45, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 184, in schedule 5, page 88, line 1, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 185, in schedule 5, page 88, line 17, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 186, in schedule 5, page 88, line 19, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 187, in schedule 5, page 88, line 23, leave out “Bail” and insert “Temporary admission”.

See explanatory statement for Amendment 113.

Amendment 188, in schedule 5, page 89, line 23, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 189, in schedule 5, page 89, line 26, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 190, in schedule 5, page 89, line 32, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 191, in schedule 5, page 89, line 34, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 192, in schedule 5, page 89, line 37, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 193, in schedule 5, page 89, line 38, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 194, in schedule 5, page 90, line 1, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 195, in schedule 5, page 90, line 3, leave out “immigration bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

Amendment 196, in schedule 5, page 90, line 5, leave out “bail” and insert “temporary admission”.

See explanatory statement for Amendment 113.

You do not have to speak to all the amendments, Mr Starmer.

[Keir Starmer]

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

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

[Gavin Newlands]

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

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

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

Liberty also makes the point that:

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

--- Later in debate ---

[James Brokenshire]

The tone the Committee has adopted towards the measures in the Bill has been that they should be firm but fair. That is the approach that I have sought to provide. Yes, this is about sending a clear message that those who have no right to be in the country should leave, and we will support and facilitate that. With regard to the specific provision, it is not a pejorative term. The term immigration bail is already used and I have sought to distinguish it from criminal bail. That is understood in respect of the differences in the system.

The hon. Member for Paisley and Renfrewshire North was right that people who might be subject to an Immigration Act might not have committed a criminal offence. Detention can be and is used properly for the removal of someone who does not have the right to be in the country to their home country. Bail may be appropriate if it is determined that the principles that underpin detention—often referred to as the Hardial Singh principles—are not adhered to. In such circumstances, bail or continued detention may not be appropriate.

It is understood in that context, rather than having any negative sense. I certainly would not wish to communicate to the Committee—and I do not think I have—any negative approach or term by the use of the word bail in the context of this provision. I do understand the sentiment and the point made by hon. Members across the Committee. With that clarity of intent and approach towards the provisions, I hope that the hon. and learned Member for Holborn and St Pancras will withdraw the amendment.

[Keir Starmer]

The Minister has been very clear in his response to the proposed amendments, both as to the intent and as to what is not intended to change. I am grateful to him for that and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[James Brokenshire]

I rise briefly to speak to clause 29 as I know that the more substantive debate will be on the underlying schedule—schedule 5. I emphasise that the proposal is intended to give clarity to the circumstances in which immigration bail is intended to operate. There are various lines of cases that operate in this sphere, in particular a current Court of Appeal case that has suggested that immigration bail conditions could be applied only when there was a right to detain. That certainly goes against existing understanding and practice and pre-existing law. That particular case is subject to appeal to the Supreme Court and has been stayed, so it does not have immediate effect.

Our judgment is that the provisions in clause 29 and schedule 5 give further clarity and are important in the context not only of simplification, putting everything into one place and promoting better understanding, but of providing clarity and certainty in law. That is why I hope that the Committee will be minded to include the clause in the Bill.

Question put and agreed to.

Clause 29 accordingly ordered to stand part of the Bill.

Schedule 5

Immigration bail

[Keir Starmer]

I beg to move amendment 199, in schedule 5, page 78, line 28, at end insert—

“( ) The following provisions apply if a person is detained under any provisions set out in paragraph (current Schedule 5 paragraph 1(1))—

(a) the Secretary of State must arrange a reference to the First-tier Tribunal for it to determine whether the detained person should be released on bail;

(b) the Secretary of State must secure that a first reference to the First-tier Tribunal is made no later than the eighth day following that on which the detained person was detained;

(c) if the detained person remains in detention, the Secretary of State must secure that a second reference to the First-tier Tribunal or Commission is made no later than the thirty-sixth day following that on which the detained person was detained and every twenty-eighth day thereafter;

(d) the First-tier Tribunal hearing a case referred to it under this section must proceed as if the detained person had made an application to it for bail; and

(e) the First-tier Tribunal must determine the matter—

(i) on a first reference, before the tenth day following that on which the person concerned was detained; and

(ii) on a second and subsequent reference, before the thirty-eighth day following that on which he was detained.

( ) For the purposes of this paragraph, ‘First-tier Tribunal’ means—

(a) if the detained person has brought an appeal under the Immigration Acts, the chamber of the First-tier Tribunal dealing with his appeal; and

(b) in any other case, such chamber of the First-tier Tribunal as the Secretary of State considers appropriate.

( ) In the case of a detained person to whom section 3(2) of the Special Immigration Appeals Commission Act 1997 applies (jurisdiction in relation to bail for persons detained on grounds of national security) a reference under sub-paragraph (3)(a) above, shall be to the Commission and not to the First-tier Tribunal.

( ) Rules made by the Lord Chancellor under section 5 of the Special Immigration Appeals Commission Act 1997 may include provision made for the purposes of this paragraph.”

To make provision for automatic bail hearings, after eight days, 28 days and every 28 days thereafter.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 200, in schedule 5, page 79, line 22, leave out paragraph 1(6)

To remove from the Bill the power for the Secretary of State to detain an individual granted bail by the Tribunal without just cause.

Amendment 210, in schedule 5, page 79, line 42, leave out “, occupation or studies” and insert “or occupation”

Probing amendment to understand why restriction on a person’s studies is to be included in the list of conditions to which a person may be subject when on immigration bail.

Amendment 211,  in schedule 5, page 80, leave out lines 1 and 2

Probing amendment to ascertain what additional conditions are envisaged to be imposed on immigration bail.

Amendment 201, in schedule 5, page 80, line 5, leave out sub-paragraphs (3) to (5)

To remove the provision which would allow the Secretary of State to override a decision of the Tribunal with regard to electronic monitoring or residence conditions placed on immigration bail.

Amendment 212, in schedule 5, page 80, line 32, leave out “in that person’s interests or”

Amendment 213, in schedule 5, page 80, line 33, leave out “and”

Amendment 214, in schedule 5, page 80, line 34, leave out sub-paragraph (f) and insert—

(f) whether the person’s removal from the UK is imminent, and

(b) such other matters as the Secretary of State or the First-tier Tribunal thinks relevant.”

To remove a requirement that that the Tribunal or the Secretary of State have regard to - when considering a grant of bail - whether continuing immigration detention is necessary in a person’s best interests.

Amendment 202, in schedule 5, page 83, line 4, leave out sub-paragraph (5)

To remove the provision which would allow the Secretary of State to override a decision of the Tribunal with regard to electronic monitoring or residence conditions placed on immigration bail.

Amendment 203, in schedule 5, page 83, line 12, leave out sub-paragraphs (8) to (10)

To remove the provision which would allow the Secretary of State to override a decision of the Tribunal with regard to electronic monitoring or residence conditions placed on immigration bail.

Amendment 204, in schedule 5, page 83, line 22, leave out sub-paragraph 7(1), (2), and (3) and insert—

7 (1) The Secretary of State must provide, or arrange for the provision of, facilities for the accommodation of persons released on immigration bail.”

To restore the power, provided by section 4(1)(c) of the Immigration and Asylum Act 1999, for the Secretary of State to provide such accommodation pursuant to a detainee’s application for bail to the Tribunal.

Amendment 205, in schedule 5, page 83, leave out lines 30 to 32

To remove the purported limitation on the use of the power to provide support to persons to enable them to meet bail conditions to circumstances where the Secretary of State considers that there are “exceptional circumstances” justifying its use.

Amendment 206, in schedule 5, page 83, line 29, at end insert—

‘(2A) If the Secretary of State decides that the applicant does not qualify for support under sub-paragraph (2), the applicant may appeal to the First-Tier Tribunal (Asylum Support).”

To provide a right of appeal to the First-tier Tribunal (Asylum Support) where the Secretary of State decides not to provide support or to discontinue support under this Part to enable a person to meet bail conditions.

Amendment 207, in schedule 5, page 84, line 34, leave out from “(a)” to “otherwise”

To provide that a person arrested without a warrant and detained because it is considered that they are likely to breach any of their bail conditions or that there are reasonable grounds for suspecting that they have done so must be brought before the First-tier Tribunal.

[Keir Starmer]

There are a number of amendments grouped together for obvious reasons. In my view, amendment 199 probably stands slightly apart from the others, being of a different nature, and I will deal with that first.

Amendment 199 would make provision for automatic bail hearings after 28 days and every 28 days thereafter. Bail hearings in immigration cases have been a source of considerable concern on both sides of the House and outside the House. There is concern about how bail hearings work and how effective they are, and there have been a number of questions as to what changes should be made.

--- Later in debate ---

[Sarah Champion]

My hon. and learned Friend is making a strong case but, on the flip side, surely it is in no one’s interest to have people languishing in a detention centre, because the cost to the taxpayer will be enormous.

[Keir Starmer]

The flip side of this argument is important. It is right that we should not detain people who do not need to be detained, both for their own sake and because it is costly to do so. I raise this issue because often, since I have been here, we take up the case across the House of those with mental health issues and many Members readily pledge greater support. It is those who have mental health issues who are least likely to be able to operate under the current system with no automatic right of bail. When we sign those pledges, make those commitments and say what we say about mental health, there is an obligation to see it through in a practical context—where it makes a real difference to people with mental health issues. In that spirit we put forward the amendment for automatic bail hearings, to cure a defect in the system that has been picked up by the APPG, has been accepted by the House and goes to central issues about vulnerable people and their ability to access a review of the decision to detain them.

[Sarah Champion]

If I went into a situation such as this, it would put enormous pressures on my own mental health. My hon. and learned Friend is talking about people who go into detention centres with mental health issues, but I would also say that to be incarcerated in sometimes very extreme situations will bring on underlying mental health issues that perhaps no one knew about.

[Keir Starmer]

I am grateful for that intervention and I agree. I wait to hear the Minister’s response on the amendment. I conclude by asking what the Government response to the APPG inquiry and its recommendations is, in light of their acceptance by the House. Mr Owen, I do not know if it is convenient to go on to the other amendments at this stage as they move into different territory.

[The Chair]

It is indeed convenient to debate them now if the hon. and learned Gentleman wishes to proceed.

[Keir Starmer]

I am happy to. Amendment 200 would remove from the Bill the power of the Secretary of State to detain without just cause an individual granted bail by the tribunal.

Clause 29 and schedule 5 taken together make a significant change to the powers of the Secretary of State and the first-tier tribunal in relation to immigration bail. The changes will have a significant effect on the ability of the tribunal to provide an effective safeguard against prolonged detention. In particular, paragraph 1(6) of schedule 5 provides that a grant of bail by a tribunal does not prevent the person’s subsequent re-detention. That is a significant departure from current provisions where bail is granted by a tribunal, under which re-detention is permissible only where the individual has breached the conditions of their bail. Paragraph 1(6) would allow the Secretary of State to effectively ignore and overrule the decision of an independent tribunal to grant bail. That is an issue of some concern.

There is a point in being able to go to a tribunal. It is generally recognised that at some point within the process, the individual must have access to an independent judicial body, with all the attributes of a judicial body, in order for a decision to be made on their liberty. Put bluntly, there is not much point in providing for an individual to go before a body with judicial characteristics if, at the end of that exercise, the Secretary of State can simply override the tribunal. In that sense, the amendment makes a point about rule of law and separation of powers. In what circumstances is it envisaged that it will be necessary for the Secretary of State to have the power to override a tribunal on a question of bail such as this?

Moving on to amendment 210—

[The Chair]

Just to help the Minister, he can refer to the amendments either as a whole group or individually. It is up to you.

[Keir Starmer]

I am probably being obtuse. Are you inviting me to stop at this stage?

[The Chair]

No, I am just offering you advice that you can speak to the amendments individually or as a group.

[Keir Starmer]

I will press on.

[The Chair]

Order. We are expecting a Division in a few minutes’ time, which will provide an opportunity to have a break for 15 minutes.

[Keir Starmer]

I am grateful, Mr Owen. As I have said on several occasions, I am learning the procedures, so I will simply continue until someone wrestles me to the ground or otherwise orders me to sit down.

Amendment 210 is probing and seeks to understand why a restriction on a person’s studies is to be included in the list of conditions, imposed by the Home Secretary, to which a person may be subject when on immigration bail. The reason for that is unclear to us. A decision from the Home Office should take about six months, but a constituent who came to see me last Friday has been waiting for two years. He was more concerned about the fact that he could not work, but such decisions can take a considerable period of time, so the introduction of a condition meaning that someone cannot study requires significant explanation.

Amendment 211 is probing and seeks to ascertain what additional conditions are envisaged to be imposed on immigration bail. The Bill states that a condition to require a person

“to appear before the Secretary of State or…Tribunal at a specified time and place”

can be imposed on someone currently on temporary admission, now renamed immigration bail. The conditions imposed by an immigration officer are those currently—

--- Later in debate ---

On resuming—

[Keir Starmer]

I think I had just got pretty much to the end of amendment 211, dealing with additional conditions. The concern here is that there has been the ability, obviously, to impose conditions for a significant period of time under an understood regime. That now includes a power to impose additional conditions that are unspecified. At the moment, as I understand it—unless the Minister says otherwise—judicial review is the only opportunity to challenge in many cases. There is a concern about what the likely additional conditions are. What is the need for them, given that the current regime has been in operation for some time, and what assurances can be given on challenging the conditions without going to the High Court through judicial review, which is a long and expensive route and only for those who can get support or otherwise afford to go that route?

--- Later in debate ---

[James Brokenshire]

On the point about vulnerability and acute mental health episodes, that is something that we are considering closely with the Department of Health. I am clear that an individual in those circumstances is best suited in a health setting and not in detention. At times, difficult assessments must be made in ensuring that transfer. Perhaps that will give him a sense of the purpose and manner in which we apply the powers in relation to mental health. He might be reading something into the Bill that we certainly do not read in that way.

[Keir Starmer]

I am grateful for that intervention; it certainly clarifies the issue and deals with part of my concern. As the Minister will know, the High Court looked at this in 2010. The case then went to appeal and its decision was upheld. The High Court said that,

“the use of immigration detention to protect a person from themselves, however laudable, is an improper purpose”

and that,

“there are alternative statutory schemes available under section 48 of the Mental Health Act 1948 or under the Mental Health Act 1983”

for people with acute and real mental health issues. Notwithstanding the intervention, the concern is that on their face, the provisions are wide enough to enable an individual to be detained in such circumstances. I will wait to hear what the Minister says about how his assurance will be carried into effect in practice, because the provisions are currently wide in the Bill.

I conclude by asking the Minister two questions. First, in what circumstances, if not the harm to self or harmed by others examples—classic criminal justice examples—is it envisaged that the provisions would be used? Secondly, how does the Minister intend to put his assurance, or at least his statement of intention, into practice to ensure that it is not used in the way that the High Court thought inappropriate, as endorsed by the Court of Appeal in 2011 and 2014, and is now considered inappropriate in a criminal justice context? I will wait for the Minister to deal with those two questions before saying any more on that.

Amendment 204 is intended,

“to restore the power provided by Section 4(1)(c) of the Immigration and Asylum Act 1999 for the Secretary of State to provide such accommodation pursuant to a detainee’s application for bail to the Tribunal.”

It is a practical amendment. In part 5 of the Bill, the Home Office is making changes to arrangements for support to be applied to persons under immigration control. We will get to that part of the Bill in due course. One set of circumstances in which support is provided is in the case of persons who might be released on bail who would otherwise be destitute. In other words, section 4(1)(c) of the Immigration and Asylum Act 1999 is used to enable an individual to be granted bail. The concern is that in the absence of that support, the individual will not be able to propose a bail address to the tribunal. If that is the case, they will be detained in circumstances where they would not otherwise be detained.

I am not sure whether that was the intention of those drafting the Bill, but it appears to be one of the consequences. If we are wrong about that, we will reconsider the amendment, but it seems that the consequence could be that a number of people who under the current system would be granted bail without difficulty, because they can provide an address because of the support they have received, will now not be able to do so and will not be bailed, to their detriment and to the detriment of public expense.

Amendment 206 picks up the same theme. It is intended:

“To provide a right of appeal to the First-Tier Tribunal (Asylum Support) where the Secretary of State decides not to provide support or to discontinue support under this Part to enable a person to meet bail conditions”.

I think that the background points are pretty much the same as the points that I have just made.

Amendment 205, linked to the previous two amendments, would remove the purported limitations on the use of powers to provide support to people to enable them to meet bail conditions to situations where the Secretary of State considers that there are “exceptional circumstances” justifying its use. We have similar concerns here. We wait to hear what the Minister has to say on those three amendments. If our concerns about possible unintended consequences are allayed, it may be sufficient for us to have set out the concerns.

Finally, amendment 207 would provide that a person arrested without a warrant and detained because it was considered that they had breached bail, or there were reasonable grounds for suspecting that, is brought before a tribunal. The amendment almost speaks for itself. In a number of contexts, individuals are released on bail or condition. It happens frequently in the ordinary criminal justice arena. It also operates for those released from prison on condition. In most circumstances, where someone is arrested and re-detained on the basis that they have breached bail conditions, there is usually a provision for a tribunal before which that individual can argue that they had not in fact breached bail. There are thousands of cases, year in, year out, where on examination by a tribunal it is found that the suspected breach of bail is not made. The person concerned is usually put back in the position they were in before being arrested for breach of a bail condition. The amendment would align the provisions with that common-sense approach that prevails elsewhere. That brings me to the end of this group of amendments.

--- Later in debate ---

[The Chair]

I am grateful to the hon. Lady. Points of order are for me, not for the Minister. I do not consider that to be a point of order; it is more a point of clarification and a reminder to the Minister that he has promised something. I am sure that he will do his best to deliver that.

[Keir Starmer]

rose—

[James Brokenshire]

Before turning to the amendments tabled by the hon. and learned Gentleman, I will give way to him.

[Keir Starmer]

Perhaps the Minister would clarify something. I understand the argument that mental health in and of itself does not override the provisions if there is another reason to detain. It would depend on the facts of the case. The assurance the Minister has just given applies where mental health is the only concern, and there is not another reason to detain. Would he be good enough to write to me to set out what he has just said? That is the real issue of concern. I accept that in the other cases, there is the overlap that he has described.

[James Brokenshire]

I appreciate the manner in which the hon. and learned Gentleman has sought to raise this issue. As I have tried to elucidate, there has to be an examination on a case-by-case basis but, to return to the principles, the purpose of immigration removal centres and of detaining somebody should be for removal. However, there may be public protection issues as well, particularly if we are looking at foreign national offenders, for example. There are other elements which sit alongside this. There could be someone who is potentially dangerous, and obviously balancing decisions must be taken on the use of immigration detention for public protection reasons.

I understand the point that the hon. and learned Gentleman makes about whether, from the utility of a public protection standpoint, the provisions and the conditions for immigration bail might be triggered purely on the basis of the individual’s state of mind. I am happy to reflect further on that. Certainly, as I have set out, the approach and the intent concerns what is an appropriate setting for someone. I will look at what the hon. and learned Gentleman has said in Committee and, if there is some further clarification that I can offer, I will certainly review that. There is a sense of the most appropriate setting, and immigration removal centres have to meet certain criteria. The normal Hardial Singh-type principles on detention operate. The hon. and learned Gentleman has made a specific point on mental health, and I will reflect further on whether there is anything I can add to what I have said.

Amendment 199 would require a bail hearing in the tribunal after eight days, after 28 days, then every 28 days thereafter. As I have highlighted to the Committee, the Government take matters of liberty extremely seriously, but we do not consider that there is a need for mandatory judicial oversight of detention in terms of the checkpoints that the hon. and learned Gentleman outlined. There is already well-established judicial oversight available. Individuals detained under immigration powers have unrestricted opportunity to apply to the tribunal for bail at any time. They can also apply for a judicial review of their detention, or for a writ of habeas corpus to the High Court, again at any time.

The current system was designed to be flexible in the interests of justice, and allows the detainee ready access to the tribunal. Legal advice and legal aid remain available for challenges to immigration detention. All detainees are made aware of the ability to apply for bail, but there is obviously a need to strike a balance. Introducing automatic bail hearings in all cases would be a further significant burden on the tribunal, with potential financial loss to the taxpayer, and would utilise time that could be spent on other matters. That could prolong the time spent in detention, and could deny other appellants timely access to justice.

It is interesting to note that the House has considered this issue before. The hon. and learned Gentleman may indeed wish to reflect on the comments of his hon. Friend the Member for Wallasey (Ms Eagle) when the Nationality, Immigration and Asylum Bill was in Committee. In respect of the repeal of an uncommenced provision that then existed, the hon. Lady, who was then a Home Office Minister, said:

“We concluded that it would be a logistical nightmare that would divert scarce resources from processing asylum applications. That would make it harder for us to complete the asylum process as speedily as all members of the Committee want…We have to be honest and open about these issues. The administrative consequences of automatic bail hearings are substantial. Given the figures and the potential for bringing the whole system to a halt, it was our reluctant judgment that unfortunately it would not be realistic for us to introduce part III bail hearings. We thought it more open and transparent to repeal those provisions, as the amount of available funding and the priorities we have for getting asylum claims through the system would not allow us sensibly to bring them into effect without that having an adverse or catastrophic effect on our system.”—[Official Report, Standing Committee E, 14 May 2002; c. 256-57.]

Although I understand the intention behind amendment tabled by the hon. and learned Gentleman, it is worth understanding the history and, equally, the challenges of automatic hearings.

During our evidence sessions, much was made of the Home Office seeking to take control of bail from the tribunal, and I want to assure the Committee that that is not the case. It is an inaccurate description of the effect of the bail clause and the schedule. I want to make it clear that the Home Office is already responsible for the management of the vast majority of cases on conditions imposed by the legislation that is being consolidated.

I turn to amendment 200, which would prevent the detention of an individual on bail unless it was thought that they intended to breach, or had breached, their conditions. I think that I understand the intention of the amendment. I underline the purposes for detention, primarily on removal but equally there might be public policy conditions. I suppose what the hon. and learned Gentleman asks is whether we can do more to achieve removal from this country of people who should not be here, without the necessity of detention. That might, in part, underline some of his thinking. Our approach to immigration enforcement seeks to promote and encourage more facilitated or encouraged removals, rather than simply to use detention as a means of achieving the outcome that I think people would want to see. Certainly that is an approach—an embodiment—that we seek to take with our removal strategy. The hon. Member for Rotherham made a point about not only the cost but the efficiency and effectiveness of the system.

[Keir Starmer]

I understand the Minister’s comments about detention and its purposes, but we are talking about a situation in which the tribunal is charged with faithfully going through a test of the individual circumstances of the case. In that situation, in what way and for what purpose does the Minister see the Secretary of State overriding the tribunal? Normally, if one side in a tribunal loses an argument on detentional conditions, there is an appeal route, but this appears to be something different in that the side that loses simply gets on with what it wanted in the first place.

[James Brokenshire]

I will come on to that point. It is a slightly different one from the one I was addressing. On amendment 200, I was responding to points about preventing detention where bail had been granted and about re-detaining if there was no risk of a breach. Sometimes, very close to a removal, when it is felt that the safest and most appropriate action would be to use detention, that mechanism may be adopted. Re-detention could be appropriate. It is also worth remembering that people granted bail might never have been detained. There will be people who are allowed into the UK on conditions while their claim is being considered. The amendment would mean that the Secretary of State could not detain such individuals if there were a change in their circumstances—for example, if their claim had been refused—without a suspicion that they were about to breach or had breached conditions.

The power as drafted could not be used on an individual who had been granted bail by the tribunal where the facts in their case had not changed. Any attempt to re-detain would be unlawful. The power is not about marginalising the tribunal’s ability to grant bail by allowing the Secretary of State to re-detain almost immediately after release. The power is about ensuring that detention is still available as an option when an individual is on bail and there is a change of circumstances in their case. The individual may never have been detained. The power is most likely to be used when removal becomes imminent, such as where someone was admitted at the border and their claim has subsequently been refused.

[Keir Starmer]

I am grateful to the Minister for outlining the position on changes of circumstances. He has given a degree of reassurance, because what he said chimes with other not dissimilar regimes, but the matter is not clear in the Bill. Nothing in the Bill refers to changes of circumstances, so what level of assurance can he give that the provision is not intended to be used, nor will it be used, in a case where there is no change of circumstances?

[James Brokenshire]

If we are talking about detention, we are in many respects back to some of the basic principles as to why detention would be used, such as the immediacy of removal. Alternatively, we are talking about some other public policy objection on the basis of established legal principles around the matter. Those principles are what guide the potential use of the power, in addition to the obvious example of a change in circumstance.

Amendments 210 and 211 are probing. The Committee wants to better understand why there is a need for a restriction on study and what other conditions are envisaged on immigration bail, and when they may be imposed. We have chosen to include a restriction on study as it is something that may be considered under the bail powers. Like the other conditions listed, a restriction on study is only an option that is available; it is not a mandatory requirement and can be imposed as appropriate.

The power is not, as was suggested, about trying to deny education. If a child can lawfully access education services, we will not seek to disrupt that by using restrictions under the bail power to place a prohibition on them attending. We also do not intend to impose through the use of the power a blanket ban on asylum seekers accessing education. Where the power could have utility, however, is on specifying the place at which someone can study, for example. That would mean knowing where they are and saying that they are permitted to study, but only at a particular institution. For example, the wrap-around for a particular family group may be most appropriately provided for by conditions that are allied to a child going to a particular school. I point to it in that way. We have other regimes where conditions can be attached to study that are more towards that stance and approach.

On the broader power to impose conditions as appropriate, it is designed to maintain current flexibility in the ability to impose bail conditions specific to the facts of the case. That is most readily seen in Special Immigration Appeals Commission bail, but it is also seen in some of the most harmful foreign national offender cases. SIAC bail conditions are often bespoke, based on the risk the individual poses. Some cases will require specific conditions to mitigate specific risks. For example, we may want to impose an overnight curfew based on the risk posed, or it may be appropriate to create an exclusion zone if a convicted paedophile is bailed pending deportation.

A slightly more general point I would make is on the question posed on the general conditions that can be attached. The hon. and learned Gentleman sought to argue that that should be limited. My understanding and advice is that that is already maintained in the existing legislative framework and is in essence a read-across from pre-existing legislation. The power to impose any conditions appearing to be likely to result in the appearance of the person answering bail is currently in primary legislation at paragraph 22(2) of schedule 2 to the Immigration Act 1971. I think it is to maintain the existing flexibility that that applies.

Amendments 201, 202 and 203 would remove the ability of the Secretary of State to require a residence condition or the imposition of an electronic monitoring condition as a condition of tribunal bail, undermining the Government’s commitment to deliver electronic tagging as part of our manifesto commitments. If we did not take this power, the tribunal could in theory decline to impose a tag. During the evidence sessions earlier in Committee, it was suggested that these provisions make the role of the tribunal meaningless. Let me assure the Committee that that is not the case. The tribunal will still be able to order the release of an individual on bail and will still be able to impose the conditions it sees fit, subject to the specific point that I have highlighted on requiring that an individual resides at a certain address or wears an electronic monitoring device where the tribunal has declined to impose such a condition when granting bail. We expect this power to be used very rarely, as the tribunal would normally impose a residence condition or tag when one is requested. If the Home Office seeks to impose a condition where the tribunal earlier declined to impose one, such a decision would be challengeable by way of judicial review. The Secretary of State would need to justify why the condition was imposed.

[Keir Starmer]

How is it proposed that this will work in practice? There is a hearing before the tribunal. The tribunal goes through the individual facts of the case and there is an argument before the tribunal on whether a condition of electronic tagging, for example, is appropriate. The tribunal looks through all the relevant material and says that in this case, it is not necessary according to the test. As I understand the Minister, the Secretary of State then comes along and says, “That’s all very well, tribunal, we disagree and we are now imposing a condition that you have just decided it is not necessary to impose.” If the individual does not like it, they go to the High Court on judicial review. Is that the regime?

[James Brokenshire]

I think the hon. and learned Gentleman has set out what I have just indicated to the Committee. It is that sense of requiring. We have looked at, for example, foreign national offender-type cases. Our judgment is that foreign national offenders who are in this country unlawfully should be subject to ongoing monitoring through electronic tagging. It is that clear policy intent that we judge, but, as I have indicated, there would be a right of challenge by way of judicial review.

There is a precedent for such a power. The House passed a similar provision in the Immigration Act 2014; the Secretary of State is required to consent to the release of an individual on bail by the tribunal when removal is 14 days or fewer away. The Secretary of State already has that mechanism—in, I accept, a slightly different situation—and that sets a precedent on how the Secretary of State has a direct interest.

Amendments 212, 213 and 214 remove the requirement to consider whether it is in a person’s best interests to be detained before releasing on bail. I understand that these are probing amendments to understand when it will ever be in anyone’s best interests to be detained under immigration powers. First, I want to repeat that it is the Government’s policy that there is a presumption of liberty and that immigration detention should be used as a last resort. I make no apologies for stating that fact again and I hope that the Committee welcomes that clear and unequivocal statement. However, there may be some cases in which immigration and detention powers have to be exercised while arrangements are made for an individual to be transferred to appropriate care. I have given some examples of that in my earlier comments. I want to be clear that the power should only be used in a limited way and for the shortest period possible, but I hope that the Committee understands that that may be needed in those exceptional circumstances.

Amendments 204 and 206 relate to accommodation arrangements for individuals who are on bail. Amendment 204 would create a duty to provide accommodation to anyone released on bail even if they had the funds to secure their own accommodation. Amendment 205 would remove the term “exceptional circumstances” from the new power in the Bill and amendment 206 would create a right of appeal against refusal to provide accommodation to a person released on bail. Schedule 5, paragraph 7 provides a power to allow the Secretary of State to meet accommodation costs and travel expenses for those granted immigration bail. That arrangement is designed to replace section 4(1)(c) of the Immigration and Asylum Act 1999, which is repealed by the Bill, but to date has been used to provide accommodation for persons released on bail in the limited circumstances where we judge that that is appropriate. The repeal is part of the wider changes to support provision for failed asylum seekers and other irregular migrants which will be debated later, so I hope to leave detailed debate on that until we get to schedule 6, when we can have a much fuller debate.

The power is deliberately drafted in a restricted way as in general, individuals seeking bail are expected to accommodate themselves or arrange accommodation through friends or relatives. This is no different from the way the section 4 power is currently used. It is clearly inappropriate to spend public money providing accommodation for people who do not need it. It should therefore only be in exceptional circumstances that the Secretary of State should pay for the accommodation of people seeking release from detention on bail. If the person is truly unable to arrange their own accommodation, the powers can be used to provide it on a case-by-case basis, considering the particular circumstances, including whether they are able to avoid the consequences of being left homeless by returning to their own country. It would be unnecessary to use the power to accommodate asylum seekers, as section 95 or section 98 of the Immigration and Asylum Act 1999 are already available for this group.

On amendment 205, the concern expressed about the provision appears to be based on the assumption that there will be increased use of detention for a longer period, because bail can only be granted when an address is available. The new bail powers contain the concept of conditional bail, at paragraph 3(8). That will allow the tribunal to grant bail conditional on arrangements specified in the notice being in place to ensure that a person is able to comply with the conditions. Where a residence condition has been applied, it will be for the individual to find a suitable address during the period of conditional bail and, if a suitable address cannot be found, for them to go back to the tribunal for a further hearing. If the person is unable to find an address, consideration will be given to using the powers in paragraph 7 to provide one. We do not consider it necessary to add further complexity to the process by creating a specific right of appeal against refusal to provide an address. Any claim that there has been a refusal to provide an address could be challenged by way of judicial review.

[Keir Starmer]

I am grateful to the Minister for giving way because it may settle this amendment. As I understand the Minister, it is envisaged that the tribunal will use conditional bail to bail someone on the condition of a residence, or an address, unspecified. There will then be a period during which the individual either finds an address or consideration will be given to supporting the individual to have an address so that they can be released. Is that how it is envisaged that this will work, when looked at in the round?

[James Brokenshire]

That is how conditional bail can be used in these circumstances, as I think I described in my response to the hon. and learned Gentleman’s points. I think that I have covered all his amendments and, in the light of that, I hope that he will be minded not to press them.

[Keir Starmer]

I want to press amendment 207 to a vote. I do not know whether it is appropriate, but on amendments 199, 200, 201 to 203 and 212 to 214, I have listened to the Minister with care and I will not press them to a vote now, but I reserve the right to bring them back later, having reflected on what has been said about them.

[The Chair]

Just for clarification, the hon. and learned Gentleman is pressing amendment 207 to a vote?

[Keir Starmer]

Yes.

[The Chair]

I am grateful. The decision on amendment 207 will be happening shortly. Does the hon. and learned Gentleman wish to withdraw amendment 199?

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

On a point of order, Mr Owen. I said that I was not pressing amendments 199 to 203 and amendments 212 to 214 to a vote.

[The Chair]

You either withdraw an amendment or press it to a vote, and you decided to withdraw.

[Keir Starmer]

I just wanted to clarify the position.

[The Chair]

That is the position. It has been a long day and it was a complex group of amendments.

--- Later in debate ---

[The Chair]

As I explained earlier on, there is a difference between a point of order and a point of frustration. I can see that the hon. Lady is frustrated by not getting an answer from the Minister, but that is a matter for him. He has heard what has been said. He may want to intervene now or to indicate that he will do so later. He is not indicating anything, so that is the position. It is not a point of order.

[Keir Starmer]

On a point of order, Mr Owen. I am sorry if I am labouring the point but, whatever the procedure, I want to preserve the right to raise amendments 199 to 203 and amendments 212 to 214 on Report. There is a temptation when someone is doing this for the first time to possibly take advantage of their ignorance.

[The Chair]

I have got the gist. I think what the hon. and learned Gentleman is saying is that he will not press those amendments to a vote at this stage, but he reserves the right to do so on Report.

Amendment made: 54, in schedule 5, page 84, line 9, at end insert—

‘( ) Sections 28J and 28K of the Immigration Act 1971 (warrants: application and execution) apply, with any necessary modifications, to warrants under sub-paragraph (3).’.—(James Brokenshire.)

This amendment provides for the supplementary provisions about warrants in sections 28J and 28K of the Immigration Act 1971 to apply to warrants issued under Schedule 5 for entry into premises to search for and arrest named persons.

Amendment proposed: 207, in schedule 5, page 84, line 34, leave out from ‘(a)’ to ‘otherwise’.—(Keir Starmer.)

To provide that a person arrested without a warrant and detained because it is considered that they are likely to breach any of their bail conditions or that there are reasonable grounds for suspecting that they have done so must be brought before the First-tier Tribunal.

Question put, That the amendment be made.

--- Later in debate ---

Power to cancel leave extended under section 3C of the Immigration Act 1971

[Keir Starmer]

I beg to move amendment 216, in clause 30, page 33, line 28, after “decision)” insert—

“(a) leave out ‘and’ at the end of subsection 1(b);

(b) leave out subsection 1(c);

(c) in subsection (2) for ‘The leave is extended by virtue of this section’ substitute ‘The leave is extended from the day on which it would otherwise have expired’”

To ensure that a person whose application is refused before their original leave expires and is still in time to bring an appeal or has brought an appeal by the time their original leave expires, benefits from the protection of 3C leave in the same way as they would had they been refused by the Secretary of State only after their original leave had expired.

[The Chair]

With this it will be convenient to discuss amendment 217, in clause 30, page 33, line 28, after “decision)” insert—

“(a) in subsection 3C(1)(c) after ‘decided’ insert ‘or declared invalid’

(b) in subsection 3C(2)(a) after ‘withdrawn’ insert ‘nor declared invalid’”

To ensure that a person who makes an “in time” application which is later determined to be invalid benefits from “3C leave” for the period, if any, between the expiry of their original leave and the Secretary of State’s notification to them that the application is invalid and thus to give effect to the interpretation of the law for which counsel for the Secretary of State argued in the case of R(Iqbal v SSHD) [2015] EWCA 838.

[Keir Starmer]

I apologise for coming to very technical amendments at this stage of the day and the proceedings; we seem to have been dealing with technical amendments for some time. Perhaps it will be possible for the Minister to give an assurance; the purpose of the two amendments is to ensure that individuals in the circumstances set out in the explanatory statements will not be in a worse position under the Bill than they are now.

[The Solicitor General]

Amendment 216 seeks to change the way the leave that is extended by section 3C of the Immigration Act 1971 operates. With respect, there has been a misunderstanding of the current position. The effect of the amendment would be that where a person applies for leave to remain and their application is refused while they still have immigration leave, their leave would be extended by section 3C while they bring an appeal or administrative review. Where an appeal or administrative review is lodged, leave will continue to be extended until any appeal or administrative review is no longer pending.

It was said that the reason for the tabling of the amendment is that people in that situation do not have their leave extended by section 3C, and that is an unintended consequence of the Immigration Act 2014. That is not the case. In fact, if anything, the 2014 Act actually improved the position with regard to section 3C. It has always been the case that, where an application is refused while the applicant still has immigration leave, leave is not extended by section 3C while a challenge to the refusal can be brought. In other words, section 3C applies only to undetermined applications. Where somebody is still waiting for an application to be dealt with, section 3C kicks in to allow the delay to be remedied.

[Keir Starmer]

Just to clarify that point, what is the position if the Secretary of State cancels the leave during that period?

[The Solicitor General]

The whole purpose of the provision is to deal with the question of cancellation where there has been a breach of the conditions. I will come on to that point in the clause stand part debate. At this stage, we see no reason to change the position in the way that is outlined in amendment 216.

Amendment 217 would have highly undesirable consequences and is unnecessary. With respect to the hon. and learned Gentleman, he does not fully outline the Government’s case in the Iqbal case, the Court of Appeal judgment by Lord Justice Elias that was reported earlier this year. The amendment, as outlined by the hon. and learned Gentleman, would mean that immigration leave would be extended by virtue of section 3C for anyone who makes an invalid application for further leave.

The problem is that that is clearly open to potential abuse. A person could deliberately make an invalid application, for example by neglecting to pay the required fee or by failing to provide mandatory documents, and continue to remain in the UK lawfully. That leave would continue until the Home Office determined that the application was invalid. That, I am afraid, would potentially be a charter for exploitation by unscrupulous people who could make invalid applications simply to extend their immigration leave and to take advantage of the section 3C provision.

The amendment is also unnecessary, because our rules and guidance set out clearly how to make a valid application, and an opportunity is provided for mistakes that lead to an application becoming invalid to be made good. That provides a safeguard for people who, from time to time, make a genuine error. Where a fee is paid, we will contact those who make invalid applications to tell them what steps they need to take to make their application valid. Where people respond within the specified time limit and provide the missing information, they will be deemed to have made a valid application, and their leave will be extended by section 3C if the application was made before the expiration of their previous leave. That point was dealt with chiefly in the case of Iqbal.

The safeguard works. More than 650,000 applications were made between April last year and June this year, of which only 2.45% were rejected as invalid. I understand the concerns expressed about access to services and about the offences that the Bill introduces for those who work illegally or drive while unlawfully in the UK. However, in practice, those measures will not be applied to individuals until the Home Office has determined whether an invalid application has been made.

--- Later in debate ---

For the sake of clarity in the case of Iqbal, counsel for the Home Secretary advanced two arguments: first, the determination that an application is invalid was itself a determination; secondly, the backstop argument was that an invalid application cannot be an application that triggers section 3C. It was on that second limb that the Court of Appeal unanimously agreed with the submission of the Home Secretary and therefore disallowed the appeals in each of the three cases that were cited. In the light of those reasons, I invite the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I am grateful to the Solicitor General for that clarification and assurance as to how the provision is intended to operate. Obviously, the public interest will be for the Crown Prosecution Service, but what he has said will no doubt be taken into account by it. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Charlie Elphicke.)

Oral Answers to Questions

Keir Starmer Excerpts

Thursday 2nd July 2015 Commons Chamber

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

8. What recent discussions he has had with the Director of Public Prosecutions on dealing with vulnerable victims and witnesses.

[The Attorney General (Jeremy Wright)]

I discuss regularly with the Director of Public of Prosecutions support for vulnerable victims, including measures that the CPS can adopt or apply for in the trial process, and ongoing work between the CPS, the police and the voluntary sector.

[Keir Starmer]

I declare an interest as a barrister and a former DPP. Does the Attorney General agree that the time has come for a comprehensive victims’ law, giving enforceable rights from the beginning of the process to the end of the process? If so, will he assure the House that there will be an early consultation on this important issue?

[The Attorney General]

In welcoming the hon. and learned Gentleman to his place, I think he must win the prize for the most impressive declaration of interest so far this morning. He comes at the issue from a uniquely knowledgeable perspective and we are grateful to have him here.

Whether or not the rights of victims are expressed in legislation, there is no doubt that we have more to do to make sure that they are properly supported and informed about the processes of which they are a crucial part. The hon. and learned Gentleman did a huge amount of good work as the Director of Public Prosecutions to assist that process, and, as he knows, there is a good deal more to be done. One of the areas we must look at, straightforwardly, is the opportunity for prosecuting lawyers to speak to victims and witnesses before and after hearings to make sure that they are clear about what is going to happen and what has happened. I think that would be a huge step forward and we will undoubtedly wish to consult the hon. and learned Gentleman and others about what else can be done.

Crown Prosecution Service

Keir Starmer Excerpts

Tuesday 23rd June 2015 Westminster Hall

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

I congratulate my hon. Friend the Member for Erith and Thamesmead (Teresa Pearce) on securing this important debate. I immediately declare an interest, as I was the Director of Public Prosecutions and head of the Crown Prosecution Service from 2008 to 2013. The current DPP was head of CPS London as a member of my staff and is known to me.

The CPS is a demand-led organisation that has taken significant cuts in recent years. As a result, it has significantly fewer staff and less resilience, and faces probably a greater challenge now than it has for many years. I pay tribute to the staff who work in that environment and deliver the best they can in the circumstances.

One of the unknowns for a demand-led organisation such as the CPS is the caseload. In the years that I was DPP, the number of cases coming into the service from the police undoubtedly reduced, which significantly softened the impact of some of the cuts. The difficulty as I see it, and the risk that the CPS was running when I was DPP, is that the reason for the reduction was never properly understood—no one could explain why the numbers were going down and, equally, no one could properly predict when they would twist and go up. I note the recent reports of increased numbers of sexual abuse cases coming into the CPS; those cases are highly resource intensive.

The cuts to the CPS are not dissimilar to the cuts to other parts of the criminal and civil justice systems. As the Solicitor General will know, a series of very critical reports on the cuts to the civil side, from this House and elsewhere, have indicated that the strategy for the past five years has been to cut first and look at the evidence and the impact later, rather than the other way round. That is a very serious criticism of any strategy. One of my concerns has been whether over the past five years there has truly been a criminal justice strategy that goes beyond simply taking the money out and focuses on the services to be delivered.

Against that background, and recognising what Sir Brian Leveson said in his recent report on the efficiency of the courts, namely, that there is an irreducible core minimum of funding below which we cannot deliver services, will the Solicitor General tell us what arrangements are currently in place to ensure that the Government have a line of sight on the risks being run by reducing resources for the CPS? Have there been evidence-based assessments of the impact of the reduced resources? If so, will some or all of those impact assessments be published? If, as the Lord Chancellor indicated this morning, the rights of victims will be taken more seriously in future, are there currently plans to increase resources for the CPS so that it can deal more effectively with victims?

[Valerie Vaz (Walsall South) (Lab)]

I welcome my hon. and learned Friend to the House—his expertise is widely welcomed here—and thank my hon. Friend the Member for Erith and Thamesmead (Teresa Pearce) for securing this debate. My hon. and learned Friend mentioned the CPS staff; does he agree that it is totally unacceptable that they have to work weekends, unpaid, with an increasing workload?

[Keir Starmer]

There is of course concern about the workload of CPS staff. One effect of the reduction in resources is that staff have to work much harder in different circumstances and at different times. That is part of the risk when the resource of any organisation is reduced. It does not mean that one must always return to the status quo and that there cannot be change. However, it does highlight my point that there needs to be a constant risk assessment when resources are reduced in the way they have been.

[Alex Chalk (Cheltenham) (Con)]

I should declare an interest as somebody who has been a practising barrister—in fact, I was probably instructed by the hon. and learned Gentleman. Does he agree that culture is sometimes as important as cost when helping victims and witnesses? There has been an extraordinary change—this was the case even during his tenure as DPP—in the way victims and witnesses are treated. That ranges from victim impact statements, to the screens provided for under the Youth Justice and Criminal Evidence Act 1999, to getting counsel to meet witnesses before they give evidence, which is critical to giving them a good court experience.

[Keir Starmer]

I accept that, and I have always said that, if we are to provide properly for victims, we need not only resource but a culture change.

I share the concerns that my hon. Friend the Member for Rochdale (Simon Danczuk) raised about Cyril Smith and other old cases. For the record, Cyril Smith was not, of course, considered by the CPS, because it was not in existence at the time. However, the case was considered by the DPP, and I have gone on record to express my concern about the decisions that were made.

This is about making a cultural change. When I was DPP, I was concerned that there was a cultural inhibition against prosecuting some of the sexual grooming cases, and that was most acute in the Rochdale cases, but a new approach was heralded to prosecuting those cases. I accept, therefore, that, when it comes to victims, the issue is not just resource but a culture change. The culture is changing, but it needs to be pressed harder, and it needs to be pressed in other parts of the criminal justice system, although there has been good work. However, if we are to take victims more seriously, that will require more resource, and it will require us to be clear about the risks that will be taken if further money is taken out of the criminal justice system.

Let me finish by observing that the decision before the DPP on the Janner case was not an easy one; it was a stark and difficult choice between two unattractive approaches. The DPP has followed the victim right to review policy and has put the decision out for review. We should respect the independence that she has brought to the decision making and the fact that she has had the courage to put the decision out for review. To that extent, we should inhibit our comments on the case.

--- Later in debate ---

[The Solicitor General]

I am sorry to disagree with the hon. Gentleman, but therein lies the problem. If we as politicians and commentators start making such value judgments, we undermine confidence in the independence of the prosecutorial system. We must trust an impartial and objective application of the threshold test. Any questioning of that causes me and many others great concern about the integrity of our prosecutorial system.

[Keir Starmer]

Does the Solicitor General agree that, when a case is charged and the judge decides that there is a case to answer, that case is properly brought, even if there is an acquittal? It is important to our criminal justice system that we adhere to that. The mere fact that a case, high-profile or otherwise, does not end in a conviction is not a test of whether the charging decision was right or wrong. A better test is whether the judge left it to the jury. If that is so, it normally means that the case should have been brought.

[The Solicitor General]

I am grateful to the hon. and learned Gentleman. He presages the point that I was going to make about sufficiency, and about the checks and balances throughout the court process. Arguments can be made about the sufficiency of the evidence at the beginning of a case, at the end of the prosecution case, and, indeed, in some rare circumstances whereby judges withdraw cases from juries—it does not often happen—at the end of defence cases, but the power remains.

In making such criticisms, we are also in danger of calling into question the jury process and indeed the whole system, which is so integral to the rule of law in this country. I was asked—rhetorically, perhaps, but I will give an answer—what strategy this Government have. It is a criminal justice system that upholds the rule of law, enhances public confidence in the system and ensures that there is a consistent approach to bringing cases and sentencing, so that the public feel confident and are protected by due process within the system. That is nothing new—it has been with us for generations—but this Government believe in it as passionately as previous Governments, of whatever colour.

I want to deal with each contribution in turn, but particularly with the opening speech by the hon. Member for Erith and Thamesmead and her experience of giving evidence in a trial. It does not sound to me as though best practice was followed in her case. I am glad she has brought it to the attention of the House, because those with responsibility for the administration of justice, not only in the magistrates court in Bexley but elsewhere, will do well to remember that the housing of witnesses for the prosecution with either defendants or their families is wholly inappropriate and leads to all sorts of complications that I need not recite here.

[Nadine Dorries in the Chair]

The hon. Member for Erith and Thamesmead asked specific questions about witness care officers. I accept that the numbers have been reduced in line with other staff reductions, but, importantly, those reductions have been accompanied by reforms to better target our limited resources to help witnesses who are intimidated or vulnerable, and those who are in greatest need. Even more is being done with regard to the change of culture to which my hon. Friend the Member for Cheltenham referred. For example, the Government are now improving access to information for victims through the new online and telephone-based victim information service that was launched in March. The increasing commissioning of victims’ services through local police and crime commissioners will create a more responsive service—a more localised service—that I do not believe will create a postcode lottery, but will emphasise best practice from which other areas can learn. Although I accept there have been reductions in expenditure, the change in culture that everybody in the system—counsel, solicitors, and lawyers in their role in explaining matters and reassuring and supporting witnesses and victims—has experienced continues to grow.