Prisons: Self-inflicted Deaths

Debate between Lord Keen of Elie and Lord Alton of Liverpool

Thursday 3rd November 2016 Lords Chamber

[Lord Keen of Elie]

My Lords, it is not appropriate to draw an immediate comparison with staffing levels in 2010. Since 2010 a number of prison establishments have been closed down, leading to a reduction in the number of staff. In addition, we have introduced a benchmark standard—which the noble Lord, Lord Harris, referred to in his own report—to address the question of staff. It is a matter not just of staff numbers but of recruitment and retention. There are wider issues that have to be addressed in that context.

Of course, prisoner care is paramount in our consideration. Indeed, in 2015 the National Offender Management Service reviewed the assessment, care in custody and teamwork case management system. It made 20 recommendations, which will be fully implemented by March 2017. In addition, we intend to give every prisoner a dedicated officer who can engage with them on a one-to-one basis.

[Lord Alton of Liverpool (CB)]

My Lords, can the Minister tell the House how many self-inflicted deaths there have been in Her Majesty’s prisons over the past 12 months? Has he had a chance to look at the Howard League’s recent report on this and can he tell the House the estimated cost—beyond the human cost—of every self-inflicted death that occurs in prison?

[Lord Keen of Elie]

In the 12 months to September 2016 there were 107 self-inflicted deaths. The cost is of human life; it is not measured in pounds, shillings and pence. Every one of those deaths is the subject of investigation, not only by the ombudsman but by an inquest.

Syrian Refugees

Debate between Lord Keen of Elie and Lord Alton of Liverpool

Tuesday 12th July 2016 Lords Chamber

[Lord Keen of Elie]

Of course, because it is necessary to distinguish between simple arithmetic and administration and policy. We are working with the United Nations High Commissioner for Refugees to ensure that appropriate numbers are brought in. The numbers vary from quarter to quarter, depending on those who are determined by the commissioner to be available for resettlement. The numbers vary.

[Lord Alton of Liverpool (CB)]

My Lords, at a meeting in your Lordships’ House this morning with the Red Cross and UNICEF we were told that the figure of 10,000 unaccompanied minors who had disappeared in Europe is an underestimate. We were told that there is no system, that it is hit and miss and that many are still falling through the cracks. Will the Minister tell the House how many unaccompanied minors have so far arrived in the United Kingdom under the terms of the Dubs amendment, which was approved by the House of Commons and has now been enacted?

Modern Slavery (Transparency in Supply Chains) Bill [HL]

Debate between Lord Keen of Elie and Lord Alton of Liverpool

Friday 8th July 2016 Lords Chamber

[Lord Keen of Elie]

I can understand the observation but, as the regulations are to be complemented by a code of practice that I believe is going to be brought into force in October this year, I do not think I am able to anticipate how compliance may occur. I will address in writing to the noble Baroness the question of whether there will be some form of requirement for compliance auditing in respect of that matter.

The right reverend Prelate the Bishop of Derby raised the question of central repositories, and mentioned an instance of an organisation in Bristol. I am not in a position to go into individual cases at this time. As noble Lords are well aware, the Government have not launched an online repository, although we are aware of a number of proposals from third parties who suggest that they could develop a website to host these statements and to help people to search for them. I would like to complete a quotation that the noble Lord, Lord Alton, made regarding an answer I gave in April this year when I said:

“There never was an intention to establish any central monitoring system with respect to these provisions”.

That was in the context that there was never any government intention, which was perfectly clear. I went on to say:

“The Government have always been clear that it is for others to establish such a mechanism. We are aware of a number of organisations that propose to set up a central repository”.—[Official Report, 13/4/16; cols. 256-58.]

The right reverend Prelate went into some detail regarding a particular development in this regard, and I undertake to write to him on that matter because he raised a point that I am not in a position to address this stage.

The noble Baroness made the point, which was also made by other noble Lords, that these are early days. I remind your Lordships that this legislation came into force in October 2015, requiring companies to respond and to obtemper their Section 54 statement in their financial year from March 2016 onwards. We are at the very beginnings of this process.

That brings me on to a point made by my noble friend Lord Smith, who asked me a number of questions about the number of companies that have complied and the number that have relied upon Section 54(4)(b) of the Act and said they could not make a statement. It is simply too early to say what the position is regarding those matters. Those figures have not been collated and cannot be, because it is only from March this year that companies have had to address the question of compliance. I regret that I cannot provide figures at this stage.

The noble Baroness, Lady Goudie, raised the issue of local authorities and government departments. I hope that to some extent I have addressed the point that she was making by seeking to explain that the original legislation was designed particularly for the private sector, and that there are parallel provisions. They may not be regarded as quite as absolute as those that apply to the private sector, but there are parallel provisions that we have under the procurement regulations and which are being developed by reference to the code of practice.

I turn to the observations from the noble Lord, Lord Alton. Again, he referred to early indications of how the Act is being complied with. I underline that point: these are only early indications. We have to look further and consider how the Act is going to bed in. In my submission, it is too early to suggest that we should be tinkering with the legislation before we know how it is actually going to work in practice. He also alluded to the alleged lack of any monetary penalty for those who simply ignore the provisions of the Act. I remind noble Lords that the provisions are civil. The Secretary of State has the right to bring injunctive proceedings against a company that persistently fails to obtemper its Section 54 obligations, and if it still fails thereafter to obtemper those obligations it will be in contempt of court and liable to an unlimited fine.

[Lord Alton of Liverpool]

Before the Minister leaves that point, he will recall that in fact the quotation was not mine; it was from the US State Department’s observation about the working of our Act. I believe it is important to get the question of penalties on the record so I am grateful to him for doing that, but will he return to the question of post-legislative scrutiny? He will recall that, when I moved amendments in 2015 on that subject, the Government opposed them. Is there not a strong case for at least saying that there will come a point where, just as there was pre-legislative scrutiny of this legislation, which was incredibly effective, there will be post-legislative scrutiny so that we can decide what is working and what is not? Then it will not be a question of “tinkering”, as he put it.

[Lord Keen of Elie]

I am grateful to the noble Lord. I understood that he had quoted the US source because he agreed with it, not because he simply wanted to put it into play. Be that as it may, I also observe that there is provision for review under the terms of the Act, albeit a five-year period. I am not suggesting that we wait that long because, as I indicated, I am perfectly content to sit down with the noble Baroness, Lady Young, and discuss these proposals further. We are sympathetic to some of the suggestions, or at least to the aims, but we do not believe they require primary legislation. I am quite happy to discuss some of these aspects with her.

The noble Lord, Lord Boateng, referred to the fact that we must not forget the past or past wrongs. I entirely concur with that, but perhaps he can appreciate that I can give no commitment with regard to Memorial 2007. He asked a number of questions about the tasking of high commissioners and ambassadors with regard to these matters. If I ventured into the realms of the Foreign and Commonwealth Office, I would fear for my future. I might fear for it anyway, but I hope the noble Lord will appreciate that I am not in a position to address questions that fall within the ambit of that particular department.

However, I have just been given this information: “18 minutes”.

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[Lord Keen of Elie]

As I say, the public sector is subject to Section 6 of the Human Rights Act; that was merely one aspect of my explanation as to why it was not considered appropriate to extend this legislation to the public sector. The other issues concern the Public Contracts Regulations 2015 and the codes and guidance that apply in that context.

As regards the Secretary of State having resort to the courts to bring a penalty, we will see consumers, NGOs and peer pressure bringing out the question of who is complying and who is not. I will give one simple example. If a retailer on the high street discovers that their competitor is retailing T-shirts at 50p each when they know perfectly well that they cannot be produced for anything like that sum, and they persist in doing so, they will detect that something is amiss. As the large corporate retailers observed in the consultation period, they want a level playing field and their one way of doing that is to ensure that their competitors comply with Section 54 and, if they do not, to bring that to the attention of the Secretary of State.

[Lord Alton of Liverpool]

Before the noble and learned Lord sits down, I raised with him the position of minors and those who have been referred through the national referral mechanism when it has not led to any kind of criminal action being taken on their behalf. Will he agree to write to me on that subject?

[Lord Keen of Elie]

The noble Lord also reminds me that he raised the question of children coming from Europe under the immigration scheme. He may appreciate that I do not have figures on these matters for the purposes of this debate, but I will be content to write to him on the point he has just raised.

Refugees: Unaccompanied Children

Debate between Lord Keen of Elie and Lord Alton of Liverpool

Tuesday 10th May 2016 Lords Chamber

[Lord Keen of Elie]

These children, we hope, will be fostered along with British children and educated alongside British children, and we believe that they will acquire the same outlook and values.

[Lord Alton of Liverpool (CB)]

My Lords, reverting to the question asked by the right reverend Prelate, will the Minister confirm that Citizens UK, cited in the letter referred to by the right reverend Prelate, has said that there are 157 children in Calais, in the “Jungle”, in horrific conditions of mud and squalor, who have a legal claim to come to the United Kingdom because they have relatives here? Will he confirm that he will speak to his officials to see that all possible things will be done to expedite those claims, to see if they have the standing to come to the United Kingdom and start the academic year in September in our schools?

[Lord Keen of Elie]

The French authorities are taking steps to improve the conditions in Calais, as noble Lords will be aware. As regards the precise number of 157, I cannot comment—but I can say that the Government have made provision in Calais to ensure that those unaccompanied children who have direct relatives in the United Kingdom follow the appropriate path, which is to register with the French authorities and proceed by way of the Dublin regulation.

Immigration Bill

Debate between Lord Keen of Elie and Lord Alton of Liverpool

Tuesday 10th May 2016 Lords Chamber

[Lord Keen of Elie]

I do not accept that. The purpose of the policy guidance is to lend emphasis to the test that is being applied, and that is what is happening here.

I shall move on to address a point raised by the noble Baronesses, Lady Lister and Lady Hamwee, which concerned the reference to the welfare of the pregnant woman. I emphasise that this provision is there as an additional safeguard. I will not claim that the draftsmanship of this clause is distinguished by its elegance, but its effect ultimately is clear.

In circumstances where it is thought that a pregnant woman may be detained, the party who may be exercising the right to detain will also have to have regard to the welfare of that pregnant woman before a final decision is made. For example, in circumstances where the pregnant woman has arrived at a remote port and there is nowhere in the vicinity that could properly be utilised to detain her when she is in a state of pregnancy, that factor must be taken into account—indeed, it must be a determining factor—in deciding whether to detain her. Somebody in a state of pregnancy arriving, say, at Heathrow can and should be detained because the circumstances are very exceptional and there are facilities to detain her in her state of pregnancy. However, if somebody arrived at a remote port where it was felt that there were very exceptional circumstances that would justify detention but where there was no suitable place for her detention, having regard to her welfare would mean that detention would not take place. I hope that that assists in explaining the purpose of the provision. It is an additional safeguard.

I turn to the question of and/or, which was raised in the context of whether or not detention should take place. Of course, the intended effect of these provisions, so far as pregnant women are concerned, is that they will, like all detainees, be detained only for the purposes of removal. Because there will be a time limit on the detention of pregnant women, all cases of detention of pregnant women will be necessarily short. Some of these cases will have exceptional circumstances attached but, by definition, not many. For example, cases at the border are quite likely not to have exceptional features. The clause as drafted therefore allows for the detention of pregnant women only when they can be removed quickly, or when they can be removed and exceptional circumstances pertain. It is merely to allow for the two circumstances—namely, that they can be quickly removed, or that they can be quickly removed and exceptional circumstances pertain. I hope that that explains the way in which that particular provision is drafted.

The noble Baroness, Lady Lister, asked about a further review. With respect, we have already had the review from Stephen Shaw, and he will be instructed to carry out a further short review about the implementation of these provisions. No additional or alternative review is being contemplated. Of course, the policy guidance that we have has been addressed already. The noble Baroness also referred to an FoI request. I cannot reply directly with respect to that request for the relevant statistics. But, of course, there is a process that can be followed through to a conclusion to determine that the FoI request is responded to in due time and in appropriate terms.

The noble Lord, Lord Winston, raised a point echoed by the noble Lord, Lord Alton, on the treatment of pregnant women and the effect of stress on them. Who can doubt how stressful it will be for a person who travels unlawfully to the United Kingdom in a state of pregnancy and then attempts unlawfully to secure entry to the United Kingdom? That alone is a source of stress. The question is how we deal sympathetically and effectively with such persons, particularly when we find that they are either vulnerable or pregnant. What we have developed here is a rational and reasonable approach to that very difficult question.

Finally, I address the question of facilities in the context of a planned departure. Our continuing view is that immigration removal centres remain the most appropriate places to detain pregnant women. Yarl’s Wood provides a high level of care for pregnant women. NHS midwives are available; general practitioners and nurses can be accessed seven days a week; there are strong links with local maternity services; and support is provided by a pregnancy liaison officer. In addition, there is a new care suite, staffed by a dedicated female member of staff, to attend to women in the state of pregnancy. Very few pregnant women are detained in these circumstances, but suitable and sufficient facilities are available and, as I observed earlier, where they are not for some reason available the welfare of the pregnant woman will be paramount.

[Lord Alton of Liverpool]

I am grateful to the Minister. He will recall that he has been asked by three of us about those words that appear in the final section, in the penultimate line of the amendment, “apart from this section”. I wondered whether he could tell us why they had been included and what they add.

[Lord Keen of Elie]

I did say that the relevant provision was not distinguished by its elegance. However, if noble Lords read the clause as a whole, it is intended to refer back to the person with the power of detention in terms of the Bill. How it is drafted at that point is dictated by how that is described in an earlier clause of the Bill.

Modern Slavery Act 2015

Debate between Lord Keen of Elie and Lord Alton of Liverpool

Wednesday 13th April 2016 Lords Chamber

[Lord Keen of Elie]

The United Kingdom Government successfully campaigned to establish the first ever UN target for ending modern slavery: sustainable development goal 8.7, which was adopted in 2015 and requires Governments to take immediate and effective measures to eradicate forced labour and end modern slavery and human trafficking. In 2015, the United Kingdom also became the third country in the world to ratify the International Labour Organization’s forced labour protocol, which commits to ending forced labour. Steps are being taken by the Home Office and other government departments to ensure the clarity of their supply chain.

[Lord Alton of Liverpool (CB)]

My Lords, how does the Minister square what he has said to the House about not having a central repository in which people can find out exactly what the interests are of those involved in supply chains, with what his predecessor said when we debated an amendment I moved a year ago in your Lordships’ House? His predecessor said,

“we want to see these statements in one place so that people can monitor and evaluate them to ensure that the intended action takes place”.—[Official Report, 25/2/15; col. 1750.]

How does the Minister square what he told the House with what the anti-slavery commissioner, Kevin Hyland, said, which was quoted during those debates—

“I can confirm I fully support the suggestion of a website as the central repository for reports”—

and the evidence given to the House when the California experience failed because of the inability to have such a central website?

[Lord Keen of Elie]

The Government have always been clear that it is for others to establish such a mechanism. We are aware of a number of organisations that propose to set up a central repository. Indeed, I understand that Unseen and the Business & Human Rights Resources Centre have collaborated to develop a central repository for transparency statements linked to the enhanced Modern Slavery Helpline, to be launched later this year.

Immigration Bill

Debate between Lord Keen of Elie and Lord Alton of Liverpool

Tuesday 12th April 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I understand fully that the intention of the amendment tabled by the noble Baroness, Lady Lister, is to reflect the recommendation from Stephen Shaw that pregnant women be absolutely excluded from detention. On this point, I reiterate what I made clear on Report and set out in my letter to the noble Baroness and to the noble Baroness, Lady Hamwee. While the Government agree that it is not right to detain pregnant women unless there are exceptional circumstances, it does not consider that an absolute exclusion would be workable.

As has been explained in this House and in another place, it is important that the Government are able to detain, for a short period, those with no right to be in the United Kingdom who refuse to leave voluntarily. For example, if an immediate removal is planned, a short period of detention may be appropriate to facilitate a safe departure where there are absconding risks or other public protection risks to be considered. Furthermore, exempting from detention an individual who has arrived at the border with no right to enter the United Kingdom and who can be put on a return flight quickly would allow pregnant women access to the United Kingdom regardless of their immigration status.

The noble Baroness, Lady Lister, mentioned that 99 pregnant women were detained in Yarl’s Wood in 2014 and that this number had reduced to 69 in 2015. I am advised that there is, at present, one pregnant woman in Yarl’s Wood. She is a foreign national offender who recently completed an 18-month prison sentence and was detained there on 9 February. A deportation order was signed and removal directions were in place for 3 April. These were later brought forward to 26 March but then deferred because of an asylum claim being made. I am advised that there has now been an application for judicial review as well. Taking that case as an example, if removal ceases to be imminent there is every prospect of release subject to conditions. This is what frequently happens in these circumstances and goes some way to explain why only a small proportion of those actually in detention are subsequently removed from detention and deported. Many are released under condition and their asylum or immigration status is determined subsequently and the matter disposed of in that way.

I stress that we are dealing with cases in which there are exceptional circumstances. The noble Baroness, Lady Neuberger, observed that uncertainty over immigration status could itself be a source of stress and anxiety for a pregnant woman. That may very well be the case: who could dispute it? But she went on to say that they can be detained for not very good reason. We cannot accept that. Our policy and guidelines are very clear: pregnant women are to be detained only in exceptional circumstances. There is a requirement for that detention in particular and exceptional circumstances.

The noble Baroness, Lady Lister, will be aware that, on Report, I stated that the Government intended to reflect on the detention of pregnant women and would have a considered position by Third Reading. I apologise to the House for the delay in completing that consideration. This is a complex issue and the Government continue to give it serious thought in the context of the work that is under way in developing policy on adults at risk in detention and the further implementation of Stephen Shaw’s report and its recommendations. That is taking time to finalise because the Government do not want to rush what is and is recognised to be a highly important issue. But I assure the noble Baroness and the House that the Government will be making a formal announcement on this matter very shortly. Indeed, the Government expect to make such an announcement in a matter of days.

The announcement will not involve an absolute prohibition on the detention of pregnant women. It will, however, set out a very clear and limited time for detention, only in exceptional circumstances, as it may be applied to pregnant women.

[Lord Alton of Liverpool]

I wonder if the Minister can explain to us why, if it is possible for the Government to make a statement in a few days, it is not possible to make that statement today.

[Lord Keen of Elie]

If I was in a position to make the statement today, I am sure the noble Lord appreciates that I would do so. He may be familiar with the wheels of government and with the requirement for these matters to be approved at various levels before a final statement is made. If I was in a position to make that statement, I reassure the noble Lord that I would not hesitate to make it.

Immigration Bill

Debate between Lord Keen of Elie and Lord Alton of Liverpool

Monday 21st March 2016 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Baroness, but the reality is that under the refugee convention and the European convention we could not in legislation discriminate between particular communities, such as the Yazidis, the Christians or the Shia Muslims. It goes further than that because we know that at present there are something like 4.8 million Syrians displaced in the Middle East, in Turkey, Lebanon and Jordan. It goes even further than that because, as the noble Lord, Lord Judd, observed much earlier in the debate on this Bill, according to the United Nations there are something like 19.5 million refugees in the world at present, whether they be in Darfur, Burma, the Middle East or elsewhere. The figure I had was 20 million, but in the context of such a catastrophe, perhaps 500,000 does not make an enormous difference. The reality is that this amendment would, on the face of it, open the United Kingdom to immigration by all 19.5 million people who could claim to be in that position. Noble Lords may scoff, but that is why it is so important that we examine the implications of the legislation proposed. Indeed, I have only to cite the example of Germany to point out the consequences of unintended action.

[Lord Alton of Liverpool]

Will the noble and learned Lord point out where in the amendment it specifies anything about Yazidis or Christians? The amendment says that if there is evidence of genocide, that evidence can be laid before a High Court justice for the justice to determine whether there is genocide. Will he also say what is non-discriminatory about the Syrian vulnerable persons scheme in which we single out a group of people and say that we will give them special protection and support, quite rightly in my view, but impose a cap, as we do, by saying there will be only 20,000? Is this not scaremongering of the worst order?

[Lord Keen of Elie]

With respect to the noble Lord, it is nothing of the sort. On the last point, the Syrian vulnerable persons scheme does not discriminate on the grounds of nationality, ethnicity or religion and therefore does not contravene either Article 3 of the refugee convention or Article 4 of the European Convention on Human Rights. That is where the distinction lies.

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[Lord Lea of Crondall]

Before the Minister sits down, if such a Motion was put forward, would it have the Government’s support?

[Lord Alton of Liverpool]

My Lords, the noble and learned Lord, Lord Keen, ended on an interesting note, which the noble Lord just questioned him about: if a Motion were placed before your Lordships’ House, which presumably would have to be done by the Government, because such procedures are not open to—

[Lord Keen of Elie]

If I may, with respect, correct the noble Lord, the Motion would not be required to be from the Government but could be laid by any Member of this House.

[Lord Alton of Liverpool]

Would the noble and learned Lord like to remind me of the last time a Motion of that kind was tabled on the Order Paper and selected for debate in your Lordships’ House without the support of the usual channels and the Front Bench?

[Lord Keen of Elie]

I am not aware of the date when that was last done, but, as the noble Lord observed, it would be a matter of securing the support of the usual channels.

[Lord Alton of Liverpool]

My Lords, it seems that we are back into the circular arguments that we have been having. The last time I put the question to the Government and asked whether they had any intention of submitting evidence of genocide in Iraq and Syria to the Security Council and through it to the International Criminal Court, they said:

“We are not submitting any evidence of possible genocide against Yazidis and Christians to international courts, nor have we been asked to”.

This argument just goes on and on. That is why, in February, I and other noble Lords from across the House tabled the Motion in Committee. Normally when a Motion is tabled in Committee, the Government respond by saying, “We will discuss with the movers of the Motion ways in which we can take it forward”. Although I had a meeting with the noble Lord, Lord Bates, it was interesting that the first comment of one of the officials who was present was, “We have never done this before”, as though that was an argument for never doing it in the future. I am disappointed that this evening neither the noble and learned Lord, Lord Keen, nor the Front Bench opposite have offered an opportunity to discuss how an amendment might be framed that could find favour with the Government. It seemed to me from what the noble and learned Lord said that under no circumstances would any such move be countenanced.

I was shocked when the noble and learned Lord started to express numbers that were in the realms of fantasy—the idea that 19 million people in the world might take the opportunity. It would be impossible to do that. First, a genocide would have to have been declared by the High Court. It would then have to go before the Government, who would have to decide how they wanted to treat it, and they could then impose exactly the kind of cap that they have imposed in the case of the numbers of people being admitted to this country under the Syrian vulnerable persons scheme. Therefore there is no question that this amendment would open those kinds of floodgates. As the Minister said, that was not the intention of the movers and it would not be the effect of the Motion. Surely, therefore, we now have an opportunity to do something about this. If the Government had said, “We will take this away and look at it between now and Third Reading”, I certainly would have responded positively to that; or we can pass this amendment, and between now and Third Reading the Government can either amend it or send it to those in another place and let them decide how they want to deal with the issue.

Under the 1948 genocide convention, we have three duties. We have a duty to prevent, a duty to punish and a duty to protect. There are two strands in the amendment. The first is to bring about the punishment of the offenders, and the second is to help some of those people. We cannot help everyone; I recognise that. But no one is more vulnerable than someone who is the subject of genocide. We have heard the speeches of the noble Baronesses, Lady Kennedy, Lady Nicholson and Lady Cox, and we have heard from the noble Lord, Lord Forsyth, and many other noble Lords who have set forward the case that genocide is indeed under way and we should therefore do something about it.

I do not claim that the amendment is perfect. I do claim that we cannot keep on going round and round in these circles. Although I recognise that I may well be in a minority this evening, it is better to be in a minority, say what one believes to be right and seek the opinion of the House. I will do that in a moment, because I agreed with the right reverend Prelate the Bishop of Chelmsford when he said that it is our duty to gather up the fragments. I agreed with my noble friend Lady Cox when she said that we should not be silent in the face of evil; with the noble Baroness, Lady Kennedy, when she said that we should break the cycle of inertia; and with the noble Baroness, Lady Nicholson, when she asked why we are last in coming forward. We have the opportunity to break the cycle of inertia this evening, and I would like to test the opinion of the House.

Immigration Bill

Debate between Lord Keen of Elie and Lord Alton of Liverpool

Wednesday 3rd February 2016 Lords Chamber

[Lord Alton of Liverpool]

As the noble and learned Lord says, it would be invidious to build a whole argument on just one case, but I must add two points to what he has just said. First, the lady told me that she had several convictions and custodial sentences but none had been for longer than three months, which does not suggest that these were hugely serious offences. Secondly, this is about returning someone to Mogadishu in Somalia, with all the problems that country faces at present. Every day one hears reports of bombings and last week there were reports of bazookas being used on the streets. This is someone who has lived in the United Kingdom for 26 years and has had three children in this country in that time. That is why the case is relevant to this afternoon’s debate about the undesirability of breaking up family life in those circumstances.

[Lord Keen of Elie]

I quite understand the noble Lord’s point. That is why the Secretary of State retains discretion over certification—this is not an absolute. In circumstances where there is a risk of serious irreversible harm because of conditions in a particular country or part of a country, there will not be certification. In circumstances where that would amount to a breach of an individual’s human rights, there will not be certification. There is that safety net. It may not be as large as some noble Lords would wish but it is there for these very cases. It is not dissimilar from the instance cited by the right reverend Prelate of a child being exposed to the very real risk of sexual violence or mutilation. Again, this is why the provisions of Clause 34 are not absolute and compel the Home Secretary to take a reasoned decision that has regard to a primary issue being the interests of the child.

A further point was raised by the noble Lord about whether and when the Secretary of State for the Home Department could be sure that she had all the information. Of course, there can be no absolutes. However, in a situation involving children, individuals—parents and carers—readily come forward to explain that there are children. Where the existence of children is identified, that matter is explored, as it is bound to be, pursuant to Section 55 of the Act I cited earlier.

My experience of being involved in the Kiarie and Byndloss cases before the Court of Appeal involved my examining the decision letters issued by the Home Office. These are not glib, one-paragraph notices, but very detailed and considered letters that were sent out, giving not only a decision but a reasoned foundation for that decision. I cannot—and would never dare to—assert that they are invariably right in every respect, or that they are exhaustive in every way. On the face of it, however, it is the practice, subject to the guidance given, to send out truly reasoned decision letters in these circumstances, with particular reference to the interests of the child or children who may be affected.

I turn to the observations of the noble Baroness, Lady Lister, who also mentioned the Kiarie and Byndloss cases. She suggested that ILPA took a slightly different view of that decision from the one I have expressed. I would cleave, however, to the ratio of the unanimous decision of the Bench of the Court of Appeal: it is quite clear what it was saying with regard to this matter. It is not tied to the fact of criminality; it is tied to the facility for an out-of-country appeal and the ability for that appeal to be discharged in such a way that we can be satisfied that it is fair to the appellant. In other words, it may not be the most advantageous form of appeal but it does meet the essential requirements of effectiveness and fairness. That is not affected in one way or another by the pre-existing criminality, or alleged criminality, of the relevant appellant. To that extent, I am afraid I have to differ from her on that matter.

The noble Baroness mentioned the matter of a family test. However, a family test does not immediately arise in this context. I understand that the family test is designed to ensure that the Government’s policies overall encourage and support family life in the United Kingdom. We are dealing here with someone who is not entitled to be in the United Kingdom, and the policies that concern removing persons from the United Kingdom will therefore not always engage the family test.

Immigration Bill

Debate between Lord Keen of Elie and Lord Alton of Liverpool

Monday 1st February 2016 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, before the Minister replies to the noble Lords, Lord Kennedy and Lord Paddick, may I add a word in support of their points, particularly the point about proportionality that has just been made by the noble Lord, Lord Kennedy? Why does the Minister feel we need to add to those powers that immigration officers already have, as set out in chapter 16 of the Home Office Enforcement Instructions and Guidance?

Would he also comment on the extensive powers that immigration officers already have to search without warrant in connection with a criminal offence? What is envisaged here, as I try to understand it, is to give those same officers powers to search premises without a warrant, in circumstances where they do not have any reasonable suspicion that a criminal offence has been committed. Is that the case? Is there no restriction in this clause authorising an immigration officer to act only where it is not practicable to obtain a warrant? If that is so, this is quite an extension of powers, and one that is disproportionate in the way that the noble Lord, Lord Kennedy, has described.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

I am obliged to the noble Lords, Lord Paddick, Lord Kennedy and Lord Alton, for their observations on these provisions. I shall begin with Amendment 184, which seeks to insert the phrase “is required to” in place of “should”, and explain why that would not be appropriate. As I observed, Amendment 184 seeks to ensure that an immigration officer’s power to examine a person for the purpose of making a decision to curtail their leave is limited to whether the person’s leave is required to be curtailed. The use of the words “should be”, which appear in Clause 20, reflects the wording already included in paragraph (2) of Schedule 2 to the Immigration Act 1971, which refers to examination on the basis of whether a person should be given leave or refused it. It naturally follows that the power to examine for the possible purpose of making a curtailment decision is on the same basis. Indeed, it would be rather strange if one test differed from the other in that context.

The effect of the amendment would be to fetter the Secretary of State’s discretion under the Immigration Act 1971 to decide when a person’s leave should be curtailed. The basis on which leave may be curtailed is set out in the Immigration Rules. Some of these are mandatory probations and some are discretionary. An example of a discretionary ground on which leave may be curtailed is when the Secretary of State considers it undesirable to permit a person to remain in the United Kingdom in light of his or her conduct, character or associations. Immigration officers therefore need to be able to question a person to ascertain whether curtailment is or is not appropriate. I can reassure the noble Lord that immigration officers may question only people who have already entered the United Kingdom for immigration enforcement purposes where they already have some information, or reasonable grounds for suspecting, that the person is in breach of immigration law. Therefore it would be wholly inappropriate, having regard among other things to the terms of the Immigration Rules, to put in this amendment in the form of a requirement rather than a discretion.

Clause 21 gives immigration officers a power to search premises for documents that might help in determining whether a civil penalty should be imposed on an employer or landlord. This power may be exercised only where immigration officers are already lawfully on premises. I will come back to this point in the context of the observations from the noble Lord, Lord Alton; it is not a question of dispensing with the requirement for a warrant, but I will address that point directly. A primary role for immigration enforcement activity is the disruption of illegal working and illegal renting. We believe it is fitting for immigration officers to have specific administrative search powers where they are exercising powers for a non-criminal purpose.

Immigration officers already have powers to search for evidence of the offence of employing illegal workers and will do so for the new offence of leasing premises to a disqualified person. However, as I am sure noble Lords will agree, it is often more appropriate to impose a civil penalty than to pursue a criminal prosecution. Immigration officers provide employers and landlords with an opportunity, during a visit to the relevant premises, to supply evidence that they have undertaken right-to-work checks before taking any enforcement action. If an employer or landlord is able to do this, no further action is taken against them.

While I understand that some noble Lords may have concerns regarding the reasonableness of having a power of search in the context of a civil penalty, where immigration officers have established through existing powers that a migrant does not have a right to work or a right to rent, and the employer or landlord is unable to demonstrate that they have made the appropriate checks, it does not seem unreasonable for the immigration officer to be able to search for evidence such as payslips or timesheets, tenancy agreements and letting paperwork. This is especially important in cases where a migrant claims simply to be a guest at residential premises or “assisting”, for example, in a restaurant.

While search powers in the civil penalty context are relatively rare, they should not be disregarded purely on this basis when there is a compelling case for introducing them. By equipping immigration officers with these new powers, the Home Office should be enabled to make better-informed decisions as to whether liability for a civil penalty has arisen and help to ensure that only non-compliant landlords and businesses are faced with civil penalties. To put the matter shortly, it would be rather strange if, having made provision for civil penalty, we should say to immigration officers, “You have the power to search if you intend to pursue a criminal prosecution but you have no power to search if you intend to take the lesser step of imposing only a civil penalty”. For that reason, Clause 21 is considered material to these provisions.

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[Lord Alton of Liverpool]

My Lords, I am grateful to the Minister for what he said about the training of immigration officers. But before he goes on to the next point in his argument, does he recall that in 2014, in the case of R v Ntege and Others, his honour Judge Madge stayed the prosecution because of both bad faith and serious misconduct? He held:

“I am satisfied that officers at the heart of this prosecution have deliberately concealed important evidence and lied on oath”.

In addition, in 2010, in Abdillaahi Muuse v Secretary of State for the Home Department, the Court of Appeal concluded that the conduct of what was then the Immigration and Nationality Directorate in the unlawful imprisonment of Mr Muuse,

“was not merely unconstitutional but an arbitrary exercise of executive power which was outrageous”.

How can the Minister, in extending the powers that already exist for immigration officers, ensure that there is not a repetition of those sorts of cases?

[Lord Keen of Elie]

Clearly, I will not comment on the detail of individual cases in this context. Those findings were made, and clearly they indicate conduct that was wholly unacceptable, and—let us add—quite exceptional, with two cases cited in many years. It is regrettable that those events occurred, but let us remember that they are isolated events. As regards the general powers of immigration officers, they will be provided with training and guidance on the use of their powers and are given enforcement instructions in guidance.

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[Lord Alton of Liverpool]

My Lords, I am grateful to the Minister for giving that clarification. It would be a convenience and a help to the House and to those who have made representations about this if further clarity could be given. If the power is to be used only in circumstances relating to terrorism, that seems a reasonable and justifiable provision.

[Lord Keen of Elie]

I am most obliged to the noble Lord and I undertake to write on that point.

The government amendments that arise here are essentially consequential amendments. Amendments 224E to 224K are consequential amendments to legislation to ensure that the provisions in Schedule 7 work as they should, by bringing existing legislation into line with Schedule 7, removing references to provisions which have been or are being repealed by Schedule 7 and, where necessary, inserting references to the relevant provisions in Schedule 7. Amendments 229ZA and 230ZA are consequential amendments to Schedule 8 to the Bill to reflect the amendments and repeals made in Schedule 7.

I am conscious that your Lordships had in mind not only the question of bail but the question of detention. However, as that is going to be addressed in a further group of amendments, I will come to that when we address that further group. I hope your Lordships will support the amendments standing in the name of my noble friend Lord Bates, but I ask that noble Lords withdraw their amendment—I say noble Lords, but I address that to the noble Baroness, Lady Hamwee.

Immigration Bill

Debate between Lord Keen of Elie and Lord Alton of Liverpool

Monday 1st February 2016 Lords Chamber

[Lord Keen of Elie]

The clearest answer I can give is that it is a matter for consideration at present by Ministers. They will consider it because they have already said that. They noted the recommendations in Stephen Shaw’s report. They have not yet determined in a black and white way that they will implement all 64 recommendations and no one would expect them to have done so in this timescale, but they will address them.

[Lord Alton of Liverpool]

My Lords, the noble and learned Lord, Lord Keen, has probably exhausted that line of argument for the moment. However, he was also asked during the debate not whether there are few or many but how many pregnant women are in detention centres at present, what their length of stay has been and whether any babies have been born there. If he cannot give those figures this evening, rather than simply saying “very few”, which was the phrase he used a few minutes ago, perhaps he will agree to write to noble Lords and let us know exactly what the numbers are.

[Lord Keen of Elie]

I am perfectly happy to write to noble Lords to give the figures for the number of pregnant women at present in detention and perhaps over a period of six months to cover both before and after Stephen Shaw’s report, so that there are some meaningful figures they can work from. I cannot give exact figures. That may not surprise your Lordships. I am advised that there are very few pregnant women in the estate. However, more precise figures will be given.

The adults at risk policy will take a more holistic and dynamic approach to the assessment of vulnerability, based on the best available evidence. That is what Stephen Shaw has identified as the most ambitious approach to ensuring that adults at risk are safeguarded. However, the approach in the proposed new clause would not be workable in practice. It does not take into account the realities of how individuals are discovered. For example, how would we handle cases at the border who can be returned on the next flight? Following this amendment, an individual could not be lawfully detained without an order of the tribunal. That would be an administrative challenge to obtain and would require significant extra resources. The same would be true of an individual encountered jumping off the back of a lorry. And what would happen if someone was already detained and raised these issues? Would they be unlawfully detained until an order of the tribunal was given? It is simply not workable in practice.

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble Baroness. Just to be clear, if I were to take the black letter of her amendment, I, like many of your Lordships, would be a little confused. Indeed, one part of the amendment appeared to remove the affirmative procedure of Parliament in approving the addition or removal of names from the safe list. I have no doubt that that was never her intention. I will therefore respond in the spirit in which the amendment was addressed.

There are various lists, of course; one has to be careful about this, because there are lists of countries for the purposes of Section 94, but in addition there are potential lists of safe third-party countries—that is, where someone has left one country but arrived in a safe country within Europe and then moved on to the United Kingdom. I will therefore deal with this at a fairly high level of generality, because the various lists have various different aspects to them. Indeed, the Part 3 list does not have any countries in it at the moment.

The Government have already made an announcement that they will not opt into the common EU list—just to be clear about that. However, in so far as we maintain lists of safe countries, we are conscious of the issues that can arise with respect to them. Indeed, it has been the subject of litigation in case law in this country, which cited, for example, Jamaica and the issue of whether it was a safe country of return. The Home Office keeps these lists, whether they are under the Immigration Act or under Part 3, under constant review, and consider all aspects of the list when deciding whether or not to maintain a country on that list or to remove it. I apologise for addressing the matter at that level of generality, but I hope that the noble Baroness will forgive me for responding to her amendment in that form.

[Lord Alton of Liverpool]

I would be grateful if I could ask him something about these lists—whether the Government accept that the guidance the Home Office gives can sometimes have extraordinary consequences. He will know that his noble friend Lord Bates was good enough to meet me to discuss the situation of detainees held in detention centres in the Far East—people who had escaped from Pakistan. These included people from the Ahmadiyya community, Shia Muslims, Hindus, Christians—they came from many backgrounds but all had faced what seemed to be absolute examples of persecution. However, the Home Office guidance simply said that these were people who risked discrimination. As the noble Lord, Lord Bates, knows, that became like holy writ as far as the UNHCR—which I met during the same visit, in September last year—was concerned. I had the Home Office guidance quoted back at me as though this was a trump card they were able to use to show that these people were perfectly safe and no consequences would befall them. However, in reality, because of that guidance many of those cases will not even be considered until 2020, and those people will go on living beneath the radar between now and then, living illegally in the country where they are because their asylum claims have not been settled and they are not allowed to work. Therefore the implications of Home Office lists and guidance can often be more far-reaching than maybe we ever imagine.