Investigatory Powers Bill

Lord Paddick Excerpts

Wednesday 27th April 2016 Lords Chamber

[Lord Keen of Elie]

I entirely concur with the noble Lord’s observations. The introduction of the double-lock mechanism in the context of the warrant underlines the importance of these developments. When the noble Lord, Lord Rosser, responded to the Statement on the Bill in November last year, he observed that it appeared that, in broad terms, the Bill had struck the difficult balance between public interest and privacy.

[Lord Paddick (LD)]

My Lords, the part of GCHQ responsible for ensuring the security of our national infrastructure, such as the national grid and our telecommunications network, is very keen on enhancing encryption. Another part of GCHQ wants to weaken encryption, so that it can access confidential information. Can the Minister say which side of GCHQ the Government are on?

[Lord Keen of Elie]

It is not necessary to be on either side of the wrong question. The position is simple: encryption is effected by means of an algorithm, which is sometimes called an encryption key. If you sequence an encryption key, you encrypt; if you reverse the process, you decrypt. This Bill will not give any party access to the encryption key, which will be held by the provider.

Crime: Religiously Motivated Crime

Lord Paddick Excerpts

Thursday 21st April 2016 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, let me be absolutely clear that the Government—and, I believe, all in this House and beyond—share the sentiment that people are free to live their lives free from interference and attack simply because of who they are or their religious beliefs. My noble friend is quite right to point out the increased attacks that we have seen on the internet, not just on the Ahmadi Muslim community but on other communities as well. The Government are taking steps on this and my colleague at the Home Office, my noble friend Lady Shields, is leading on internet safety and security. We are building alliances not just with the communities in the United Kingdom but beyond to ensure that wherever we find hate, whatever its cause and whoever the perpetrator and victim, we send a clear message: such hate will not be tolerated.

[Lord Paddick (LD)]

My Lords, I associate these Benches with the Minister’s remarks about the tragic death of Asad Shah. Religiously motivated sectarian violence has been prevalent in Scotland and other parts of the United Kingdom for many years. The tragic death of Asad Shah is another example, albeit involving a different religion. What training is being given to police officers, and what advice is being given to victims, to help them differentiate between race-hate crime and religiously motivated hate crime?

[Lord Ahmad of Wimbledon]

The noble Lord is quite right to raise the growing and worrying tide of sectarian differences within different communities and the rising tide of hate crime. In that regard, I am pleased to tell the House that as of 1 April this year, as the noble Lord may well be aware, for the first time all police forces across England and Wales specifically record religious hate crime by religion and not just in its general sense. That is an important step forward.

In Scotland, as the noble Lord will know, there are devolved powers, but we are working very closely with the Scottish Government. Indeed, I will shortly visit Scotland—both Edinburgh and Glasgow—to discuss the issue of the growing tide of religious hate.

Border Force Budget 2016-17

Lord Paddick Excerpts

Wednesday 20th April 2016 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, as I have already alluded to, border security has been enhanced and Border Force continues to perform 100% checks on scheduled passengers. As for lorries, we perform rigorous border checks on scheduled arrivals. The noble Lord mentioned specifically a letter that has been written today and the steps that the Government have taken. I am sure that if he reflects on the changes that have been made—apart from the creation of, as I said, a more flexible Border Force, which has allowed us to address the challenges and needs across the country as a whole—we have seen various programmes which have delivered incremental improvements to e-Borders vision, such as the Schengen information system, the warnings index on migration and improved exit checks. We continue to work very closely with our European partners across the board to ensure that we protect not only our borders but borders across the European Union from threats based around security and terrorism.

[Lord Paddick (LD)]

My Lords, while handbags at dawn over the Border Force budget between the chair of the Commons Home Affairs Committee and the Home Secretary might be entertaining, the crucial question must be whether Border Force has and will continue to have the resources it needs to safeguard UK borders from threats of foreign terrorism and illegal immigration, bearing in mind that the Home Secretary has now confirmed that the budget for the Border Force is decreasing while it would appear that the threats are increasing.

[Lord Ahmad of Wimbledon]

My Lords, I agree with the second part of the noble Lord’s statement: as the challenges and threats are increasing we need to respond accordingly. As I alluded to in the Statement—perhaps it is important to repeat it—one of the steps the Government are taking in the Home Office is investing a further £130 million in the technology around our borders to ensure that we meet the enhanced and ever-evolving threat that faces the United Kingdom.

Immigration Bill

Lord Paddick Excerpts

Tuesday 15th March 2016 Lords Chamber

Moved by

[Lord Paddick]

74: Clause 41, leave out Clause 41

[Lord Paddick (LD)]

My Lords, this amendment is also in the names of my noble friend Lady Sheehan and the noble Baroness, Lady Lawrence of Clarendon. We also have Amendment 78 in this group. I spoke on these issues in Committee, and the Minister has subsequently written to noble Lords on the issues raised both in Committee and at a meeting with the Minister and officials on 22 February.

In essence, these clauses create a new offence of driving when unlawfully in the UK, powers to detain the motor vehicle being driven by someone committing such an offence, including powers to enter premises to seize the vehicle, and powers to dispose of the vehicle on conviction. In addition, there are powers to enter and search premises, and to search an individual and a vehicle in order to seize and retain a driving licence if there are reasonable grounds for believing that the person has a driving licence and is not lawfully in the UK.

Noble Lords will recall my concern and the concern of other noble Lords that these provisions were likely to change a dynamic in police/community relations because of something that was abandoned decades ago when the police decided not to be proactive in enforcing immigration law because of the seriously damaging impact it was having on police/community relations. Clearly, the police will inform immigration authorities if someone who has been arrested for a criminal offence is suspected of being illegally in the UK, so that immigration officers can take the necessary action. But the days of police officers arresting black drivers on the spurious grounds that they were suspected of being an overstayer had, I hoped, thankfully been consigned to the history books.

My concern and the concern of other noble Lords who spoke in Committee, and the concern of the National Black Police Association, is that these clauses will take us back to the bad old days of poor police/race relations. The National Black Police Association says:

“The potential impact of this legislation will be an undermining of community cohesion and a stirring up of hatred and suspicion between different racial and religious groups … and will result in the police becoming the whipping boy for the immigration service”.

Those are not the words of what some people might regard as an out-of-date, out-of-touch former police officer but the views of an organisation representing currently serving police officers.

I am very grateful to the Minister for meeting with me and other noble Lords, and for writing on these issues. I regret to say that his letter on the subject raises more questions than it answers. First, the Minister says that the Home Office will consult publicly on the draft guidance. Can he say whether there will be parliamentary scrutiny of such guidance? The letter goes on to say that these clauses do not provide the police with any new power to stop people or vehicles. That is true, but it gives new powers to search an individual, a vehicle or the person’s home address without a warrant, as well as creating a new criminal offence.

The letter goes on to say:

“The Government has made clear that no one should be stopped on the basis of their race or ethnicity; this would be unlawful under the Equality Act”.

I remind the Minister of the survey commissioned by Her Majesty’s Inspectorate of Constabulary, published in March last year, where 10,094 members of the public were asked whether they had been stopped by the police while driving in the previous two years. Between 7% and 8% of white drivers who responded said that they had, whereas 10% to 14% of black drivers who responded said that they had been stopped in their vehicles.

Black drivers were more likely not to be told the reason for the stop and were less likely to be arrested or prosecuted. This is how the police use their existing power to stop motor vehicles. Black drivers were almost twice as likely to be stopped and were less likely to have done anything wrong. The exercise of the power to stop vehicles under Section 163 of the Road Traffic Act is not recorded by the police, so, apart from the HMIC survey, we have no idea how disproportionate the use of this power against black and other minority ethnic people is.

The Minister in his letter goes on to talk about the fall in stop and search in 2014-15 compared with 2013-14. He states:

“The number of stops on those of black ethnicity has fallen at a faster rate than stops on those who were white”.

First, motorists stopped under Section 163 of the Road Traffic Act are not included in the stop-and-search figures, as I have already said. Secondly, according to the Institute of Race Relations, in 2014:

“Black people specifically are 4.2 times as likely as white people to be stopped and searched by the police”.

It also reports that 86% of stop and searches did not lead to an arrest.

Does the Minister seriously expect the House to be relaxed about giving the police even more powers to search people and their homes and to arrest people for driving while illegally in the UK because the Home Office will issue guidance and because to discriminate against black and other minority ethnic people would be unlawful under the Equality Act?

In his letter the Minister goes on to say that,

“the police will use the powers contained in clauses 41 and 42 where they have stopped a vehicle for an objective reason”.

The HMIC survey and the stop-and-search survey suggest that the police are stopping black people driving vehicles and stopping and searching black people for no objective reason—“for a reason other than race and ethnicity” is a more accurate description than “objective”.

I know from 30 years in the police service that you can do anything to Elvis Presley apart from tread on his blue suede shoes, and you can accuse the police of anything except racism. What did the Government expect Chief Superintendent Dave Snelling to say to the Public Bill Committee other than that the police would not abuse this power?

The letter goes on:

“A search of premises for a driving licence can only be carried out where: ‘The officer has reasonable grounds for believing that a person is in possession of a driving licence and is not lawfully resident’. In practice, this would require the police to perform a check with the Home Office”.

All the evidence that we have to date points to the fact that this is what should happen in theory and not what will happen in practice.

The Home Secretary has done a lot of good work on stop and search, but clearly a lot more needs to be done if you are still over four times as likely to be stopped and searched if you are black than if you are white. All the evidence, including a survey by HMIC, shows that the police cannot yet be trusted to do what the Government “make clear”, even when their actions are unlawful under the Equality Act. All the evidence indicates that the police are not yet ready, despite baby steps in the right direction, to be given more search powers and a power to arrest drivers suspected of being illegally in the UK. The fact that these powers are focused around immigration means that they are even more likely than general stop-and-search powers to be used disproportionately against the black and minority ethnic community.

Liberal Democrats want effective border security to prevent illegal immigrants coming into the UK in the first place, effective exit checks so that we know when someone has overstayed their visa, and an effective immigration service that tracks down overstayers and others who are working in the UK illegally. These are all the responsibility of the Immigration Service. The police have already suffered significant cuts to their budgets and community policing has been hit hard. They have a front-line role in liaising with communities to build the kind of trust and confidence that leads to vital information about serious crime and terrorism being passed on to them by the public. Anything that is likely to put them in conflict with the public, and with black and minority ethnic communities in particular, will make us all less safe. That is exactly what this legislation is likely to do.

I am not making this point from a politically motivated point of view; this is an honestly held, personal belief based on my experience of policing and my knowledge of police culture. I have great respect for colleagues in the police service, who put their lives on the line to keep us safe every day, but these are serious issues that need to be addressed. I beg the Minister to reconsider these draconian clauses. Restrict the powers to immigration officers if you must, but please do not drag the police back to the bad old days when I was a constable on the beat. I beg to move.

[Baroness Lawrence of Clarendon (Lab)]

My Lords, I wish to speak on Amendments 74 and 78, which relate to Clauses 41 and 42. Since this House last considered the driving offence and powers set out in the Bill, the Minister has, as he promised, engaged with me and others who expressed deep concern about the impact of these provisions. I thank him for that but I must tell him that the additional commitments made by the Government have left me feeling far from reassured.

The addition of a defence to the Clause 42 offence is welcome, as strict-liability offences can cause serious injustice, but this move will do nothing to reduce the practical discriminatory impact of these proposals. The discrimination will occur before a case reaches the police station or the courtroom. It will occur on our roads and in our houses. That is where the damage will be done.

The provision of guidance on the use of these powers is not enough. Guidance exists around the use of current stop-and-search powers, such as the power set out in Section 60 of the Criminal Justice and Public Order Act 1994, but statistics produced by the Met show that this power is still used disproportionately against black people. There is a time for guidance and a time for a wholesale rejection of a proposal because it is simply too harmful. In my opinion, the driving offence and the related powers in this Bill fall firmly into the latter category.

Finally, the Government offer a pilot evaluation of the implementation of the search powers set out in Clause 41. I am afraid that this does not fill me with confidence, given the experience of the right-to-rent pilot evaluation: the sample was too small and was unrepresentative, and the evidence of discrimination that it ultimately produced was ignored by the Government.

--- Later in debate ---

[Lord Paddick]

My Lords, I am very grateful to the Minister for addressing the concerns that we have. I had already challenged his script on safeguards when I moved my amendment. When he went off-script, he was more reassuring as far as I am concerned.

I am also grateful to all noble Lords who participated in this debate. To reply to the noble Lords, Lord Deben and Lord Green of Deddington, I was a police officer for more than 30 years and considered long and hard what I would say this afternoon. It is a significant thing for me to say but at the end of the day my real concern with these measures is the fundamental issue that they are likely to bring the police more into conflict with black and ethnic minority communities, and the consequences there could be from that.

However, it does not really matter what my opinion is, despite my police experience. The issues are complex. Very few if any police officers are deliberately racist but, as the Minister said, the training that the Home Secretary asked the College of Policing to look into is to address what he described as “unconscious bias”. At the end of the day, what is the explanation for the fact that, according to the HMIC survey, you are twice as likely to be stopped as a driver if you are black compared with if you are white? What is the explanation that you are four times more likely to be stopped and searched by the police if you are black than if you are white? If those are the facts, do we really want to take the risk of giving the police these additional powers in the absence of any credible explanation for the facts as we know them? Those concerns remain but I beg leave to withdraw the amendment.

Amendment 74 withdrawn.

Calais: Child Refugees

Lord Paddick Excerpts

Monday 29th February 2016 Lords Chamber

[Lord Bates]

I am grateful to the noble Lord for his questions. Dealing first with the time that it takes to process such applications, I say that nine months is clearly too long. That is one reason why we have announced that a senior Border Force officer is going to be embedded in the interior ministry in France to ensure that particularly the Dublin family reunion cases are processed as quickly as possible. We hope that that situation will improve.

The noble Lord asked what we are doing to ensure that children do not fall prey to the trafficking gangs. The evidence from Europol is that 90% of those who come to Europe have paid a criminal gang to do so. We know that those gangs are a serious threat and are operating in that area. One reason we are putting so much emphasis on the hotspots is that we want especially children but all asylum seekers to be processed as soon as they come into the EU. There are five hotspots in Greece and another seven in Italy. The Home Secretary has asked Kevin Hyland, the Independent Anti-slavery Commissioner, to go out to those areas with a child protection officer to see what more can be done for children.

In relation to the UNHCR, of course that has a wider remit around the world for those who are seeking asylum under the refugee convention. We are working very closely with it, particularly on the initiative announced by the Prime Minister in relation to the 3,000 identified by Save the Children as to what more can be done with them. The UNHCR is looking at a solution to that and we are expecting an answer from it in the next couple of weeks.

[Lord Paddick (LD)]

My Lords, I understand what the Minister says about unaccompanied children but what action are the UK Government taking to identify unaccompanied children with family in the UK who are legally eligible for asylum here, not only in Calais but in Grand-Synthe near Dunkirk and numerous other camps in northern France? Surely there are settled families in the UK who know that there are unaccompanied children related to them in these camps in northern France. Surely it cannot be left simply to the French Government and the children to apply for asylum. They are just children, after all.

[Lord Bates]

That is right. In the Written Statement on 28 January, we announced that we were devoting £10 million to the protection of children across Europe. We have provided additional support, particularly in the camps, to make sure that people get the advice they need. As the noble Lord rightly says, we are talking about children here and I well understand that they need an adult on their side who can work with them, helping and guiding them through the process. We have said that the best route for that is in the first instance that they claim asylum in France and then they can enter that system and get the protection they need. Then when their family are identified in the UK they can be safely transferred to the UK to be reunited with them.

Police: Body-worn Cameras

Lord Paddick Excerpts

Thursday 11th February 2016 Lords Chamber

Asked by

[Lord Paddick]

To ask Her Majesty’s Government what is the current guidance provided to police forces regarding the use of body-worn cameras by police officers.

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, the College of Policing published interim operational guidance for the use of body-worn video in July 2014. The college is preparing evidence-based authorised professional practice, which we anticipate will be published later this year.

[Lord Paddick (LD)]

My Lords, Jermaine Baker was shot dead by the police in Tottenham last December. The fact that the firearms officer was not wearing a body-worn camera was viewed with suspicion by some and with regret by the IPCC. Does the Minister not agree that the Home Office needs to publish as soon as possible a statement on the current position on body-worn cameras and national guidelines, in order to avoid unreasonable suspicion falling on the police?

[Lord Bates]

The noble Lord asks an interesting question. The incident to which he refers involved a mobile armed surveillance support team. A lot of the guidance relates to the overt use of cameras by operational police. The covert is also covered by the Regulation of Investigatory Powers Act. This is something that we need to look very carefully at, and I understand that we will be receiving reports from the IPCC in considering what further action needs to be taken, perhaps in the Policing and Crime Bill.

Immigration and Nationality (Fees) Order 2016

Lord Paddick Excerpts

Wednesday 10th February 2016 Grand Committee

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, I beg to move that the Committee considers this statutory instrument. This fees order is to be made using the charging provisions in Sections 68 to 70 of the Immigration Act 2014, which consolidated and simplified the charging provisions from three previous Acts. The order sets out the maximum amounts that may be charged for broad categories of immigration and nationality functions for the next four years, which is the expected life of the order. Maximum fee amounts are ceilings which limit the amount that may be charged in subsequent fee regulations.

Like the previous order, the maximum amount for each category is set to accommodate the highest individual fee in each category. In most cases, the categories will contain a number of different, individual fees. I want to make it exceptionally clear that the maximum amounts are not targets that the Home Office will seek to charge by the end of the four-year period. These maximums will allow the Home Office to adjust fees within these ceilings in order to be responsive over the next four years to the needs of customers, the department and the taxpayer, and to meet the Government’s objective of a border, immigration and citizenship system by 2019-20 that is fully funded by those who use it and benefit most, as announced in the spending review.

The fees order will also enable us to expand the scope of our premium service fees, which will facilitate the introduction of new services in addition to those already offered. The amendments will also provide greater flexibility to deliver services directly to customers and organisations that request increased or tailored levels of support. The introduction of such premium services does not replace or seek to charge for those services that are currently provided for free. We continue to ensure that the appropriate measures are in place to enable scrutiny of our proposals, while immigration and nationality fees will continue to be transparent and set in the best interests of the United Kingdom.

The legislative framework does not allow for the Home Office to put up fees whenever it likes. The legislation requires that immigration and nationality fees proposals must be considered and approved by Her Majesty’s Treasury. They are also agreed by the cross-governmental home affairs committee and an impact assessment is produced on the proposals prior to fees legislation being presented to Parliament. We expect that most fee levels will be subject to an annual review during the four-year period and that fee level changes will be subject to the same cross-governmental approval process. The individual fee levels will be set out in negative regulations. We expect shortly to lay regulations setting out the fees for 2016-17.

We have published a fees table that shows our intentions for individual fees in 2016-17, and I will now explain our proposals. Consideration of the impact of fees on businesses, educational institutions and economic growth continues to be balanced with the government policy that users of a system should pay more towards its costs and therefore reduce the burden on the UK taxpayer. To support the Government’s approach towards recovering an increased proportion of immigration and visa costs and the transition to a self-financing border, immigration and citizenship system, we propose to apply incremental increases to most immigration and nationality categories.

The proposed increases do not impose any additional costs on business. To support economic growth, we intend to make relatively small fee increases for applications related to work, study and visit, which will increase by 2% next year. For example, the fees for short-term visit visas and tier 4 student visas would rise by £2 and £6 respectively.

A number of visa and immigration fees will continue to be set at or below the estimated processing cost. The highest proposed increases in fees in 2016 are for optional services that offer an enhanced level of convenience and for routes that provide the most benefits and entitlements —for example, requests for enhanced application services and for indefinite leave to remain.

I know that noble Lords will all support a border and immigration system that controls immigration for the benefit of the UK while improving services to customers and reducing the cost to the taxpayer. I believe that this fees order, as an enabling provision, will help us to achieve this, and I commend it to the committee.

[Lord Paddick (LD)]

My Lords, I thank the Minister for explaining the order. I am, however, a little confused about how much revenue the Home Office intends to generate through this mechanism. The Explanatory Memorandum states:

“This Order sets out chargeable immigration functions and maximum fee amounts which provide for immigration fees to increase at a rate above inflation”.

Understandably, it could be that in order to ensure that the cost of processing these applications—for visas or whatever—is met, the fees have to be set above inflation because the cost of processing them is increasing at a rate above inflation. No one would have any concern about full cost recovery. One would expect that a person applying for a visa would pay the full cost of providing that service.

The impact assessment talks about the Home Office having to ensure that fees for immigration and nationality services make a substantial contribution to the cost of running the immigration system. This seems slightly different from simply recovering the costs incurred. The impact assessment goes on to say that government intervention is necessary to ensure a balanced Home Office budget. It later states that,

“the Home Office estimates that 100% of the costs of front-line Immigration, Border and Citizenship operations will be recovered through fees”.

It goes on to say that it is right that,

“those who use and benefit directly from the UK migration system make an appropriate contribution to meeting its costs”.

Later it refers to the comprehensive spending review, which requires further reductions in the Home Office budget over the next four years. This suggests that fees are being increased simply to cover a hole in the Home Office budget created by the comprehensive spending review. Indeed, the impact assessment says that some fees are set above the cost of delivery. It goes on to say that significant efficiency savings are being made in the immigration system within the Home Office, but that:

“It is appropriate that any remaining shortfall”—

presumably the shortfall in the funding provided by the comprehensive spending review—

“should be met by those who use and benefit from the service”.

The Minister has just said that the immigration service works to the benefit of the UK. It is therefore not simply a case of the immigration system working for the benefit of those people who seek leave to visit the UK or to remain; it benefits all of us. Are those people who apply—that is, only those on whom the Home Office can impose a fee—going to be landed with the shortfall between the efficiency savings and what is provided by the comprehensive spending review for the immigration services? It does not seem reasonable that we should penalise those seeking visas and other services simply because the comprehensive spending review penalised the Immigration Service in that settlement.

Can the Minister reassure the Committee that these fee increases will not be used to target certain categories of applicant? There could be a potential for discrimination if that were the case. How much of the shortfall in the Home Office funding for the Immigration Service do the Government expect to make up by increasing the fees? Are we talking about the overall Home Office funding shortfall, the shortfall in front-line immigration services or the shortfall in the services that provide visas and so on?

[Lord Rosser (Lab)]

I thank the Minister for his explanation of the purpose and intention of this SI. The order sets out the functions in connection with immigration and nationality for which the Secretary of State may charge a fee, including how fees are to be calculated and maximum fee amounts. Specific fees will be set within the agreed limits in regulations subject to the negative resolution procedure.

The Government’s objective in doing this is to achieve a self-financing border, immigration and citizenship system. This SI replaces the Immigration and Nationality (Fees) Order 2015 and is intended to sustain increases to fees set out in subsequent regulations under the negative procedure over the next four years.

In similar vein to the comments made by the noble Lord, Lord Paddick, is it the intention that the fees set will be related to an applicant’s ability to pay? That does not appear to be a factor to be taken into consideration. If that is not the case, how will the requirement under Section 55 of the Borders, Citizenship and Immigration Act 2009 be met? Under that section, the Secretary of State is required to have regard to the need to safeguard and promote the welfare of children who are in the UK in carrying out any function in relation to immigration, asylum or nationality. Such an issue may surely arise if an adult applies for settlement but does not apply for a child or children at the same time because they cannot afford the fee. Presumably Section 55 makes it affordable for children and their families who meet the criteria to make immigration applications for a secure status.

The order sets out the maximum fee for a review of a decision in connection with immigration or nationality, which I think is £400. The Government argued during the passage of the Immigration Act 2014 that administrative review would be cheaper than bringing an appeal. However, the proposed maximum suggests that that might not necessarily be the case. Do the Government intend to provide an independent appeals procedure?

The fees provided for in the SI are uneven and, as the noble Lord, Lord Paddick, said, suggest that they are being used as a means to encourage or deter would-be applicants from particular groups or categories from making applications. Is that in fact the Government’s approach so far as setting the fees is concerned? It would appear to be the case.

Table 6 of the order makes provision for fees for expedited processing. This almost brings us back to the discussion we had yesterday about tier 1. It is already the case that premium service centres are offered by the Home Office and generate considerable revenue for it. However, some have argued that a twin-track system is developing in which insufficient attention is paid to ensuring that ordinary applications are processed in a timely manner. Those who are rich or desperate or both can pay for the premium service. There is a concern that more premium services, which are forecast and provided for under this SI, would mean a second-class service for everyone else. That concern has been expressed and raised in a number of quarters. Is that a fair comment or concern? It would seem to have some validity. If the response is going to be, “No, it is not a fair comment or concern”, why would the Government say that that was not the case?

The Minister mentioned in his explanation that the intention was that there would be no further increases in the maximum amounts in this SI within the next four years—or at least, as I understood it, they were to be there for the following four years. Can the Government give a guarantee that this will happen and that those maximum figures to which reference was made will not be increased again over the four-year period, or during the four-year period to which the Minister referred? We have concerns about the level of some of these fees because some of the incremental increases are indeed quite considerable. Obviously, the aim of some of the questions I have raised is to seek the Government’s response to those points.

Immigration Bill

Lord Paddick Excerpts

Wednesday 3rd February 2016 Lords Chamber

[Lord Bates]

First, I am a huge admirer of the work of the Red Cross and pay tribute to all that it does in this area. The noble Baroness referred to my charitable endeavours over the recess. Last year, I raised £90,000 for projects for the International Red Cross in China. My response to the point about the Red Cross study is that we are engaging with it. Home Office officials are in contact with the Red Cross and we are working through its recommendations, which I have read. There is some question—which we need to understand better—about the cohort. I think that the Red Cross looked at some 60 case studies. The majority—all but five or six, I think—were failed asylum seekers, but there was not really sufficient explanation of why they had failed. Suffice to say that we take this very seriously. We want to engage with organisations such as the Red Cross so that we move forward sensitively.

I have said that I will write on the point about the Azure card and perhaps I could include the exceptions. With that, I hope that noble Lords will accept my explanation and withdraw their opposition to the clause standing part.

[Lord Paddick (LD)]

My Lords, perhaps I could ask one question. A number of noble Lords have said that when this sort of scheme was tried before, where, basically, failed asylum seekers were forced into destitution, not only were there fewer returns than in the control group but more people absconded and disappeared than in the control group. I understand the Minister’s arguments about saving government money for more deserving cases and that if somebody has exhausted the asylum appeals process you cannot keep giving them resources, but surely the most important thing is to ensure that the people who should not be in this country are no longer in this country. When this was tried before, the evidence was that starving failed asylum seekers into leaving the country is counter- productive. The Minister has not answered that question.

[Lord Bates]

That is one of the reasons why, in the preceding group, we talked about the policy of deport first, appeal later. If people are appealing from outside the country, there is less of a risk that they will abscond. We should also note, when comparing this with the 2002 Act, the different way in which we now engage families in this situation—through caseworkers, through Migrant Help and by working with them to manage their return to the United Kingdom. There is also a very generous grant available to them—up to £2,000 per person in addition to travel costs—when they agree to do so. So judged in the round, within the wider package of things that we are trying to do in the Immigration Bill, we can actually see that that figure will improve. But I am sure that the noble Lord will hold us to account when those figures are published each year to see how we are doing.

Immigration Bill

Lord Paddick Excerpts

Monday 1st February 2016 Lords Chamber

Moved by

[Lord Paddick]

160: Clause 17, page 18, line 9, at end insert “and the authorised officer has reasonable grounds to believe the power should be exercised urgently.”

[Lord Paddick (LD)]

My Lords, Amendment 160 is tabled in my name and that of my noble friend Lady Hamwee, and we also have Amendments 161 and 162 in this group. We have considerable misgivings about the powers provided under the clause that I will address in a moment. Under subsection (3)(c) an authorised officer who is not a constable can enter and search premises for a driving licence only if a senior officer, such as an immigration officer not below the rank of chief immigration officer, has given authority in writing. However, subsection (4) states that that written authority,

“does not apply where it is not reasonably practicable for the authorised officer to obtain the authorisation of a senior officer before exercising the power”.

Our amendment would introduce the additional condition that,

“the authorised officer has reasonable grounds to believe the power should be exercised urgently”.

It may not be reasonably practical for the authorised officer to obtain the authorisation of a senior officer simply because it is not possible to make contact with the senior officer whether because of communication issues or that no senior officer is available immediately. In such cases the authorised officer should make a decision as to whether there are reasonable grounds to believe that it is necessary to exercise the power there and then. In the absence of any urgent need, the authorised officer should have to wait until higher authority is obtained from the senior officer.

Amendment 161 refers to proposed new Section 25CC(5) in circumstances where a driving licence has been seized and retained by the Home Office, which under paragraph (a) is until a decision is taken to revoke it. Our amendment seeks to place a time limit on that decision so that a driving licence cannot be retained for longer than one month from the date of seizure unless it is being revoked. It does not seem reasonable to us that someone whose driving licence is not in the end revoked should have his licence withheld from him indefinitely while a decision is made. Amendment 162 seeks clarification of subsection (5)(b) of the proposed new section. Clearly a driving licence that is being held by the Home Office must be retained until it has been revoked, until the time limit for lodging an appeal has passed, or until the appeal is determined. But it is not clear what is meant by retaining a driving licence if it is “subsequently revoked”. Can the Minister tell us what is intended by that phrase; what is it subsequent to?

Also included in the group is the intention to oppose the question that Clauses 17 and 18 stand part of the Bill, and I wish to address our opposition to both of these clauses. As I mentioned at Second Reading, when I was a police constable in the years leading up to the Brixton riots in 1981, police officers would routinely stop motor vehicles being driven by black men in particular and frequently arrest them on suspicion that they may be illegally in the country. The usual reason given was that they were a suspected overstayer. These arrests happened routinely simply because the person who was being stopped was evasive or did not appear to be co-operative. Together with the use of the offence of being a suspected person loitering with intent to commit an indictable offence under the Vagrancy Act 1824, commonly known as “sus”, and the disproportionate use of stop and search, a problem that continues to this day, relations between the police and the black community deteriorated to such an extent that the Brixton riots, or uprising, was the result. A conscious decision was taken by senior police officers in the light of such deterioration that the police service would no longer proactively enforce immigration law. Instead, police officers would help and support the Immigration Service if called upon to do so. The arresting of black drivers on suspicion of being overstayers stopped, to the considerable benefit of police/community relations.

Clause 18 creates an offence of driving when unlawfully in the United Kingdom. A person found guilty can receive a sentence of imprisonment, a fine or both, and the court can order the forfeiture of the car that was being driven by that person. It is police officers who have the power to stop motor vehicles and require the driver to produce their driving licence, not immigration officers. The burden of enforcing this part of the Bill will fall on police officers, and when I say “burden”, I mean it. The Government will want to see this law enforced. The police will come under pressure to proactively enforce immigration law for the first time in almost 30 years—30 years after the police service made a conscious decision to back away from proactive immigration law enforcement because of the damage that it was causing to police community relations.

--- Later in debate ---

[Lord Bates]

The noble Lord is right to point to the immense experience of many noble Lords who have spoken, such as that of the noble Lord, Lord Paddick, in policing and of the noble Baroness, Lady Lawrence, in representing victims of crime over many years. That is why I am suggesting, in the light of the concerns that have been expressed, that we ought to look at this. Sometimes there is an overfocus on this particular element, without recognising the wider context of the Bill. This is not being targeted simply through stop-and-search powers but is consistent with the wider aim to reduce the ability of people who are here illegally to live a normal life while in the UK—such as by having bank accounts, being able to rent properties, being able to work and gain employment, or being able to gain a driving licence. In the wider context, it fits, but there are some specific concerns here. It is a very sensitive area. Therefore, I am very happy to meet noble Lords to discuss it further.

[Lord Paddick]

My Lords, I thank all noble Lords who have spoken, particularly the noble Baroness, Lady Lawrence of Clarendon. Our Amendments 160 to 162 are technical in nature, and so was the Minister’s response, so I will read Hansard with interest. The major issue is with Clause 17, where the Minister has not answered our concerns. He talked about justification for this being where the police stop somebody and then a match is found against a Home Office record. That implies that the police would have to carry out an immigration check on the individual to establish whether an immigration offence had been committed. They are being pushed into proactively enforcing immigration law in a way that they have not previously.

[Lord Bates]

Again, I defer to the noble Lord’s great experience, but I understand that that is part of normal practice when they establish the identity of the individual whom they have stopped for a suspected offence: that they try to establish that identity from the databases available to them.

[Lord Paddick]

My Lords, my understanding is that a routine check of the Home Office immigration database is not a normal part of a stop check.

The Minister says that the stop must not be based on race or ethnicity, but Her Majesty’s Inspectorate of Constabulary research, to which I and other noble Lords referred, shows that drivers are being targeted on that basis. The Minister has not given the Committee any reassurance that things will be different under these powers. The Minister said that the Home Secretary, in addressing the National Black Police Association, admitted that a quarter of stop and searches by police are unlawful. The clauses extend the powers of the police to carry out stop and searches.

In answer to the noble Lord, Lord Alton of Liverpool, the Minister talked about monitoring. The fact is that police stops of vehicles under the Road Traffic Acts are not routinely recorded. This is something that we need to look into in the meeting with the Minister and other interested noble Lords, which I very much look forward to.

The Minister has heard from both sides here: from someone who has been a victim of racism and from someone who has previous experience of enforcing immigration law as a police officer, and the detrimental effect that that has had on police-community relations. I was in the Brixton riots, I was behind a plastic shield, and I felt the anger of the black community in those days towards the police. I do not want us to go back to anything like that situation—particularly, as the noble Lord, Lord Alton, said, bearing in mind the greater availability of firearms these days. However, I am very grateful to the Minister for agreeing to meet us to discuss those things, and I beg leave to withdraw the amendment.

Amendment 160 withdrawn.

--- Later in debate ---

[Lord Rosser]

As was said in the previous discussion, the Bill creates a new criminal offence where a person,

“drives a motor vehicle on a road or other public place at a time when the person is not lawfully resident in the United Kingdom”.

Of course, this new offence is part of the Government’s objective, as set out so clearly in the Explanatory Notes, of,

“making it harder to live and work illegally in the UK”,

to encourage those who do not have the appropriate immigration status to “depart voluntarily” and, where they do not do so, to use other measures in the Bill to “support enforced removals”. As with the new offence of illegal working for employees, however, there appears to be no defence for this new offence in relation to driving.

The purpose of our amendment is to seek to provide such a defence for those prosecuted for driving while illegally in the UK if they can show that they had reason to believe that they had the legal right to be here. For example, there is the kind of person who has been sponsored but, unbeknown to them, there is something wrong with the sponsorship. As a result, they may fall foul of this new offence because they do not have the status they should, although they had reasonable belief of their right to be here and acted completely in good faith. Having a criminal record has serious implications for a person under immigration control, as such records can never be spent for immigration and nationality purposes, must always be declared and can form the basis for refusing a person leave, settlement or citizenship.

During the debate on this issue in the Commons, the Solicitor-General confirmed that effectively there was no defence for this new criminal offence. He said in response to a question on this point that a person who was prosecuted for this new offence would have the opportunity to,

“put in mitigation about their belief as to whether they were legally present in the UK, and that would affect any sentence that might be passed”.

Of course, that is about mitigation of sentence, not a defence to the charge for which a person can be sent to prison for 12 months. The second point made by the Solicitor-General was that,

“the Crown Prosecution Service will have guidance to ensure that migrants are not inappropriately prosecuted for this”,

new criminal offence. He went on:

“Should a migrant be able to genuinely show that they believed themselves to be legally present, the public interest test … would apply”.

In other words, as with the offence of illegal working for which there is no defence for those employed, it would be up to the Director of Public Prosecutions rather than Parliament to decide whether there is a defence against an offence for which there is no such provision made in the Bill.

In the Commons, the Government accepted and recognised the reasons behind this amendment but maintained that it was “very broad”, “very subjective” and would create scenarios in which,

“a defendant might claim they had reason to believe they were in the UK legally, simply because they had misunderstood the date on which their leave expired”.

Yet that is precisely the kind of question that the DPP and Crown Prosecution Service will presumably have to resolve in carrying out the Solicitor-General’s view that if a migrant can genuinely show that they believe themselves to be legally present, the public interest test would apply. Why then can the courts not be relied on to make appropriate decisions on reasonable belief, as called for in this amendment, and thus put a defence against this new offence in the Bill, debated and agreed by Parliament?

When the question was raised in the Commons debate about why this new offence was needed at all, since it appeared that the police were not seeking this new power and had not found any gap in their ability to deal with drivers who do not have regular status, the Solicitor-General, replying for the Government, said that there was,

“a loophole involving people who are unlawfully here … who are driving with foreign-issued licences”.—[Official Report, Commons, Immigration Bill Committee, 3/11/15; cols. 307-08.]

For my benefit and to get it on the record, could the Minister spell out in detail what the existing problem is in relation to people who are here unlawfully and who drive with foreign-issued licences, as opposed to those here unlawfully but driving with British driving licences or no driving licence at all, and which can be resolved only with the creation of this new offence? It would also be helpful if the Minister in his response—I hope it will be favourable but am not too sure of that—could place on record the Government’s assessment of the extent to which this new criminal offence of driving a motor vehicle while not lawfully resident in the United Kingdom will reduce the number of people not lawfully resident in the United Kingdom, and the basis on which that conclusion has been reached. I beg to move.

[Lord Paddick]

My Lords, I support the noble Lords, Lord Rosser and Lord Kennedy of Southwark, in their Amendment 163. It does not seem an absolute offence. Therefore, Amendment 163 seems reasonable.

We have Amendments 164, 169, 171, 172, and 173 in this group in my name and that of my noble friend Lady Hamwee. Amendment 164 would add to new Section 24D by placing a time limit on the time taken to make a decision whether to prosecute, when someone has had their vehicle detained, having been arrested for driving when unlawfully in the United Kingdom, of one month from the date of arrest. It could well be that the person arrested is a professional driver, who relies on the vehicle for their livelihood and, if that person turns out to be innocent of the offence, it could have serious implications for him if the vehicle is not returned to him promptly.

Amendment 169 is designed to restrict the ability to detain the vehicle if it belongs to a third party. Could the Minister clarify whether it is intended to detain vehicles innocently lent to others who are subsequently found to be in the UK illegally?

Amendments 171, 172 and 173 are to query the issue of all premises warrants, in new Section 24E(6)(b) and 24E(7), to search any premises owned or controlled by the person arrested for driving illegally to detain the car he was driving—particularly, as stated in new Section 24E(10), when such an all premises warrant cannot be issued in Scotland. Can the Minister explain why such a wide-ranging warrant is necessary in England and Wales but not in Scotland?

The Government also have Amendments 174 and 175 in this group, which widens the power even further, not just to all premises but not restricting such a power to a constable only, which is what was in the Bill originally. Surely, the power is broad enough as it is.

[Lord Bates]

My Lords, I have a couple of amendments in the group, so I shall speak to those first and then turn to the amendments in the names of the noble Lords, Lord Rosser and Lord Paddick.

The government amendments in this group relate to the Secretary of State’s powers to make regulations governing the detention of vehicles used in committing the new offence of driving when unlawfully in the UK and to the criminal justice procedure for the offence in Scotland. Amendments 165 to 168 remove unnecessary references to the procedure applicable to solemn criminal procedure in Scotland, as opposed to summary procedure, since the offence is a summary-only offence in Scotland. Clause 18 provides a regulation-making power covering the destination of any proceeds from a vehicle being forfeited and disposed of. Amendment 170 extends this power to enable regulations to specify the destination of the proceeds of charges made for detaining a vehicle. This is necessary to ensure that it is possible for the charges to cover the cost of detaining the vehicle to be paid either to the police or to a private contractor who is detaining a vehicle on behalf of the police. Clause 18 provides that all premises and multi-entry warrants can be applied for in Scotland by an immigration officer. Amendments 174 and 175 remove this possibility to ensure compliance with the Scottish criminal justice system, which does not currently include provision for either all premises or multiple entry warrants. I invite noble Lords’ support for these amendments at the point when they are moved.

I turn to the issues raised in the other amendments. Amendment 163 would have the effect of introducing a presumption that ignorance of immigration status provides a defence against conviction. The overwhelming majority of illegal immigrants will be fully cognisant of their status, having entered the country unlawfully or deliberately overstayed their visa. The requirements imposed by the amendment are open to vague and inconsistent interpretation and may provide a perverse incentive for some migrants to avoid communication with the Home Office and/or their legal representatives in order to establish the necessary doubt as to whether they could “reasonably” be expected to have known they were required to leave the UK.

Not all those who have entered the UK illegally or attempt to remain illegally in the UK have a history of communication with the Home Office. These are arguably the types of illegal migrant that this legislation is intended to deter. It would be a bizarre outcome should this group be better protected as a result of this amendment than those who have engaged with the authorities.

Where a migrant honestly believes that they have lawful status—for example, because they have been misled by a rogue legal adviser—this will be taken into account in considering whether prosecution would be appropriate in the public interest, and clear guidance to that end will be provided. Should a migrant be able to genuinely evidence that they believed themselves to be legally present, it is highly unlikely that it would be in the public interest to prosecute.

In light of these points, I hope that the noble Lords, Lord Rosser and Lord Kennedy of Southwark, will feel able to withdraw their amendment. Given the concerns about the strict liability nature of this offence, I may reflect further on this matter before Report.

The amendments proposed by the noble Lord, Lord Paddick, which are also in the name of the noble Baroness, Lady Hamwee, represent a significant potential weakening of the powers necessary to enforce the law and realise the intended benefits of this part of the Bill. Amendment 164 would require that a decision whether to charge a person with this offence or institute criminal proceedings be taken within a month of the arrest date. It is right that decisions on whether to prosecute a person for a criminal offence should be taken promptly, but the proposed amendment would introduce an arbitrary time limit and create an additional, and in our view unnecessary, administrative burden on the relevant agencies.

Amendment 169 would have the effect of disallowing the detention of the vehicle if it was under the person’s control. This would defeat the principal purpose of the clause, which is to prevent illegal immigrants driving on our roads. I understand that noble Lords may have intended to probe how the legislation will operate where an illegal migrant is apprehended driving a vehicle belonging to someone else, and that vehicle is detained by the police. That is not an unusual scenario in the context of motoring offences, and the Bill provides appropriate safeguards to deal with just that situation. I draw noble Lords’ attention to new Section 24D(8), which provides a power for the Secretary of State to make regulations about the release of a vehicle that has been detained. This power covers the circumstances in which a vehicle should be released to a third party who has an interest in it, such as the vehicle’s owner. Where a person has been convicted of the new offence created by Clause 18, the courts will have the power to order the forfeiture of the vehicle used in the offence. However, a third party with an interest in the vehicle may apply to the court to have the vehicle returned to them.

Amendments 171 to 173 would significantly reduce the potential success of a search for a motor vehicle by removing the ability to apply for an all-premises warrant to search multiple premises. The power contained in the clause to apply for an all-premises warrant, which allows any premises occupied or controlled by a specified person to be searched, is consistent with the Police and Criminal Evidence Act 1984, which applies in England and Wales, and the equivalent order in Northern Ireland.

The provisions within the clause and within wider immigration legislation specify that the search power may be exercised only to the extent that it is reasonably required. In order to issue an all-premises warrant, the justice of the peace needs to be presented with reasonable grounds that it is necessary. Limiting the scope of searches to premises specified at the outset of an inquiry negates any possibility of using evidence gained during the initial inquiry that provides reasonable grounds to believe that a further search of additional premises would be successful. In the context of this clause, for instance, this might have the perverse effect of preventing officers who have searched one vehicle lock-up from also searching the one next door, despite information suggesting that the vehicle is kept there.

Anti-social Behaviour, Crime and Policing Act 2014

Lord Paddick Excerpts

Monday 1st February 2016 Lords Chamber

[Lord Ahmad of Wimbledon]

I think that the position of the Government is very clear on this. Buskers are not criminalised. Indeed, we have seen some very good initiatives being taken at a local level. The noble Lord will be aware of the Busk in London initiative right here in London. What we need to see is more voluntary arrangements in place at a local level. I believe that about seven or eight councils have thus far signed up to the London voluntary code. We need to encourage the remaining boroughs out of the 32 to do so as well.

[Lord Paddick (LD)]

My Lords, in December last year the Metropolitan Police justified the use of the Anti-social Behaviour, Crime and Policing Act to prevent a busker performing in Romford on the grounds that,

“street performing attracts thieves as large crowds gather”.

Yet they do not seem to take any action when even larger crowds gather to watch street performing in Covent Garden. Will the Minister accept that better statutory guidance is needed to avoid heavy-handed policing?

[Lord Ahmad of Wimbledon]

What is required is for local councils to learn and look towards good practice. We have seen examples of good practice in place and have also seen how the Act has been used effectively—the transition from having 19 elements within the anti-social behaviour orders to having six has helped. But this is very much a matter for local authorities. We have seen good practice around the country, which needs to be replicated in those areas where we have seen such acts as the noble Lord just described.