Nationality and Borders Bill

Lord Sharpe of Epsom Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

I propose to conclude by merely echoing the words of the noble Baroness, Lady Fox, opposite. She says that it is above all important that there should be confidence in the means by which these decisions are taken, and it is to augment that confidence that we propose these measures. On that basis, I respectfully invite the noble Lord to withdraw the amendment.

[Lord Sharpe of Epsom (Con)]

My Lords, given the hour and the address by the President of Ukraine, I beg to move that the debate on Amendment 65 be now adjourned, and that further consideration on Report be adjourned until 5.15 pm.

[Lord Carlile of Berriew (CB)]

My Lords, there may well be a Division on the second of the amendments in the group. In which case, can we take it that the House will not resume until we have had the opportunity to come back to your Lordships’ House, even if it is a bit after 5.15 pm?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to the noble Baroness, Lady Lister, and the right reverend Prelate, the Bishop of Bristol, for tabling amendment 70A. I thank all noble Lords for participating in this short debate. I also express my sympathy to the noble Baroness, Lady Jones, for her nightmares.

It has been suggested by noble Lords that being able to change employer is of little use to those already close to their visa expiry date. We understand, of course, that it takes time to find work, but we must remind noble Lords that it is not the purpose of the domestic worker visa to enable migrant domestic workers to establish themselves in the labour market. This is about shifting the balance of power towards the worker by making it clear that their status in the UK is not exclusively dependent on the employer they arrived with.

A number of noble Lords asked why we had not changed things back to the pre-2016 arrangements. I remind noble Lords that we did take into account the Independent Anti-Slavery Commissioner’s advice in 2016 that relaxing the visa tie and allowing ODWs to stay for another two years without reporting to the authorities could inadvertently create a market for traffickers.

I move now to the issue of visa validity for overseas domestic workers and the proposal to reinstate a system of annual renewals and a path to settlement. Although I fully support noble Lords’ dedication to protections for migrant domestic workers, we do not believe this proposal would achieve what it purports to. The overseas domestic worker visa caters specifically for groups of visitors who, by definition, stay for short periods. Approximately 20,000 visas are issued every year on that basis, and we know the overwhelming majority leave well within the validity of their visa. A significant proportion of these workers are repeat customers who, for example, accompany their employer on their annual visit to the UK. They too leave before their visa expires, suggesting that, for the majority of those who use it, the visa serves its purpose.

That aside, the Government are not blind to the vulnerability of overseas domestic workers, which is why dedicated arrangements have been designed and delivered with these individuals in mind. This includes a standalone immigration route for victims of slavery who first entered the UK as domestic workers, which enables them to spend a further two years in the UK in that capacity. Unlike other visa holders, domestic workers who enter the national referral mechanism before their visa expires also benefit from continuing permission to work throughout the duration of their time in the NRM system. This is in addition to the support available via the modern slavery victim care contract.

Yes, these provisions are limited to those in the NRM system, but this package is designed to strike the right balance between ensuring that those who find themselves in an abusive employment situation are able to escape it by finding alternative employment, and encouraging them to report that abuse through the appropriate mechanism.

By attempting to rewind the clock, this amendment risks reintroducing features of the route that were removed for a good reason. This amendment gives no thought to how the route should be modernised, or how better advantage could be taken of the infrastructure being introduced via the future borders and immigration system to improve the way we communicate with customers.

I respectfully contest the assertion that the system worked well in the past. We must not forget that abuse existed before the terms of the visa were changed in 2012. We must also be mindful that allowing ODWs to stay could inadvertently create a fresh cohort of recruits for traffickers, as the anti-slavery commissioner pointed out back then. That is obviously something we all wish to avoid.

However, none of this is to say that arrangements for domestic workers cannot be improved. It is important to keep routes such as this under continual review. It is important to look forward rather than backwards and to prioritise ending the importation of exploitative practices from overseas in the first place. We accept that not all exploited workers are victims of modern slavery. Following our previous commitment to explore this problem further, I am told, to confirm what the noble Baroness, Lady Lister, said, that Home Office policy officials will meet NGO practitioners tomorrow. They include Kalayaan and FLEX—Focus on Labour Exploitation. In answer to the noble Lord, Lord Alton, I am afraid I do not know what the agenda is, but the Government are keen to hear directly from those who encounter and support domestic workers, including those who may fall between the cracks of labour abuse and modern slavery. The Government have committed to consider all evidence. In the light of this renewed collaboration and for the wider reasons I have given, I invite the right reverend Prelate the Bishop of Bristol to withdraw his amendment.

I now turn to Amendment 75, tabled by the noble Lord, Lord Wallace of Saltaire. The tier 1 investor route was closed to new entrants on 17 February. I should remind the House that this was introduced in 2008, as mentioned by the noble Baroness, Lady Jones. The Home Secretary has been clear about the need to stop individuals who may be at high risk of threatening our national security or of being linked to corruption or illicit finance flows. The tier 1 investor route failed to offer sufficient protection against those outcomes, nor did it work to deliver significant economic benefit to the UK. The House can be assured that its concerns about this route, which were well articulated by a number of noble Lords during the debate in Committee, are shared by the Government, and we have taken action to address them.

The Home Secretary stated in her Written Statement of 21 February that the historical review is being finalised and will be published in the near future. I can upgrade that slightly. The noble Lord, Lord Wallace, said that it is well under way; I can upgrade it to imminent, without, I am afraid, giving him a specific date.

With regard to the proposed amendment, we have set out that we plan to make alternative provision for investment-related migration through an expansion of the scope of the existing innovator route. This will be a fundamentally different route of entry which, instead of linking residence to funds in the bank, will focus on applicants’ skills and experience as investors in innovative businesses.

The Government’s view is that this would be an entirely new arrangement, in both its objectives and operation, which would be supported by independent assessment through new endorsing bodies, and not just a replacement or successor scheme within the meaning of the noble Lord’s amendment. Without dwelling on that point, the Government will publish the review of the historical operation of the route as well, although I am sorry to say that I am not sure when; I cannot give him that specific answer.

Without pre-empting what the review will have to say, the wider picture is that the Government are, in any event, committed to identifying ways in which to crack down on wider issues of economic crime. In particular, the Government, as noble Lords are well aware, have brought forward a number of measures in the Economic Crime (Transparency and Enforcement) Bill, including removing key barriers to using unexplained wealth orders and bringing in a new register requiring anonymous foreign owners of UK property to reveal their identities.

Given that the tier 1 investor route has now been closed, I question whether it is sensible to constrain the Government’s ability to make improved provision for investment-related migration, which would be aimed at delivering real economic benefits, pending publication of a review of the previous arrangements. I can also confirm that my memory of the “Conservative” press article referenced by the noble Lord, Lord Wallace, is exactly the same as that of the noble Lord, Lord Rosser: I think it mentioned certain members of other parties. Having said all that, I hope that the noble Lord will not press his amendment.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Baroness, Lady Ritchie, for explaining her amendment so powerfully. I appreciate the intention behind it but the amendment would undermine the Government’s efforts to strengthen UK border control. The Government are clear: there will continue to be no routine immigration controls on journeys to the UK from within the common travel area and none at all on the land border between Ireland and Northern Ireland. I am very familiar with the land border between Northern Ireland and Ireland, and I appreciate that you often do not know whether you have crossed it. Individuals will not be required to carry or present any documents when crossing the land border, nor will British or Irish citizens require an ETA.

To protect both the UK immigration system and the common travel area from abuse it is important that, as now, all individuals arriving in the UK, including those crossing the land border into Northern Ireland, continue to enter in line with the UK’s immigration framework. This is a well-established principle of the operation of the common travel area, and it applies when travelling in all directions. Visa nationals are required to obtain a visa for the UK when travelling via Ireland, including when they are crossing the land border. Otherwise, they are entering illegally. That includes UK visa nationals resident in Ireland. This is a well-established requirement and we are simply extending the same principle to individuals requiring an ETA.

The amendment would result in an unacceptable gap in UK border security that would allow persons of interest or risk, who would be refused an ETA, to enter the UK legally, undermining the very purpose of the ETA scheme, which is to prevent the travel of those who pose a threat to the UK. It would also provide an opening for those looking to abuse our current CTA arrangements, which is obviously in no one’s interests.

Some noble Lords are concerned about the impact on tourism and the economy. The Government are committed to developing a clear communications strategy to tackle any misunderstandings about the requirements to travel to Northern Ireland. As has been pointed out, over the last decade Northern Ireland has been transformed and is now very much considered a “must see” tourism destination. We will continue to support tourism in Northern Ireland and to Northern Ireland by ensuring that the process for obtaining an ETA is quick and light touch. Successful applications will be approved within minutes of submission.

Regarding the impact on frequent cross-border travel, I want to first make clear that those with any form of existing UK immigration status, such as frontier worker permit holders, will not be required to obtain an ETA. For those who do require an ETA, the application process will be quick and, as I said, light touch, and the majority of applications will be approved within minutes. Once granted, an ETA will be valid for multiple journeys over an extended period, minimising the burden on those making frequent trips, including those across the Ireland-Northern Ireland border. As now, it will not require those crossing the land border to hold any particular physical documentation, as ETAs will be issued electronically.

In answer to the noble Viscount, Lord Brookeborough, I was not comparing this with other forms of charge when I spoke on this previously at the Dispatch Box, and I certainly did not say that it did not matter. It obviously does matter, and I hope I did not sound as though I thought it was a trivial amount of money, because I do not.

The Government consider the scheme compliant with our commitments under the Belfast/Good Friday agreement and the protocol on Ireland and Northern Ireland.

I have been talking to my noble friend Lord Caine; I entirely agree with the noble Lord, Lord Murphy, that he would have been much better at doing this than me. We have been having discussions with the Irish Government, as he is well aware. The UK has a close exchange with Ireland on all matters of bilateral interest, including this one, and we will continue to engage with Ireland as we develop this scheme. My noble friend assures me that he has been in contact with the Home Office. Having said all that, I appreciate that I will probably not have satisfied anybody in this House, but I nevertheless ask the noble Baroness to withdraw her amendment.

[Lord Hain (Lab)]

Before the noble Lord sits down, could I ask him about the potential impact on Rally Ireland, which is competing with other countries where this requirement will not be present? About 20 teams compete, with lots of non-British and non-Irish nationals in them, and they will each require multiple applications.

[Lord Sharpe of Epsom (Con)]

I asked my noble friend whether he was familiar with Rally Ireland, and he is not either. I will come back to the noble Lord with a specific answer. I had not heard of Rally Ireland before.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, this has been a very interesting debate. The noble Lords representing the Government should look to the Good Friday agreement, because that will provide the solutions to this issue. The North/South Ministerial Council, the British-Irish Council and the British-Irish Intergovernmental Conference deal with those east-west issues.

I have not heard anything from the Government that provides me with any consolation. I still ask them to come back at Third Reading with a possible amendment, but in this instance, I seek to test the opinion of the House.

--- Later in debate ---

[Lord Rosser (Lab)]

We also think that the provisions in Clauses 76 and 77 are unnecessary and in fact ought to be removed from the Bill.

The Bill requires the Tribunal Procedure Committee to give the tribunals the power to fine individuals exercising a right of audience or a right to conduct litigation, or an employee of such a person, for “improper, unreasonable or negligent” behaviour. There are issues about wasted costs. As has been said, this change could certainly affect the willingness of lawyers and solicitors to take on difficult cases for fear of risking personal financial liability. As far as we are concerned, the immigration tribunals already have all the case management costs and referral powers that they need to control their own procedure.

In Committee I asked how many of the cases dealt with by the immigration tribunal over the last 12 months fall within the category of unreasonable behaviour, for which the Government would expect these costs orders measures to be activated. I thank the Minister for his letter in response, which states in the second paragraph that:

“It is not, however, possible to say how many cases dealt with by the Tribunal within this period fell within the category of unreasonable behaviour. This is because we do not hold data on the number of cases where behaviour or circumstances could have been considered unreasonable, but where no costs order was sought, or considered by the tribunal of its own initiative.”


I have to say that that letter simply confirms that the Government have no hard evidence to support their assertion that the provisions of Clauses 76 and 77 are necessary, because of the reasons set out in the letter, which I quoted and which indicate a certain paucity of hard evidence to support the Government’s position.

I will be interested in the Government’s reply to see whether they challenge my interpretation of the content of the letter of 3 March which the Minister was good enough to send to me. However, certainly, in the absence of a government response saying that their letter did provide the hard evidence to back up their view that the provisions of Clauses 76 and 77 are necessary, I must say that it is very difficult to understand why they are bringing forward the provisions outlined in those clauses.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank my noble friend Baroness McIntosh of Pickering for explaining her amendment. Government Amendment 73 is a technical amendment to Clause 77. It does not change the policy; it makes a minor revision to the drafting of subsection (1) of Clause 77 to ensure that it matches the rest of the clause in only making provision in relation to the Immigration and Asylum Chamber. This change will prevent any uncertainty arising about the jurisdictions in which this clause should be applied, and it gives the Tribunal Procedure Committee complete clarity about how to approach drafting the rules to enact these measures.

I turn now to Amendments 72 and 73. The Government are committed to making the immigration and asylum system more efficient, while also maintaining fairness, ensuring access to justice and upholding the rule of law. To achieve this, we need all representatives involved in these proceedings—whether they are acting for the appellant or for the Home Office—to play their part in ensuring that appeals run smoothly. Representatives do not just have a duty to act in the best interests of their client; they also owe duties to the courts and to the public interest, which include acting with integrity, upholding the rule of law and supporting the proper administration of justice. We are aware that there are concerns about the behaviour of some representatives in immigration proceedings, which can waste judicial and tribunal resource and lead to delays in the tribunal process. Existing case law identifies the types of circumstances and behaviours which have led to costs orders being made or considered, and the principles applied by the courts. These have included showing a complete disregard for procedural rules through, for example, abusing court processes in relation to evidence or the timing of applications. As with the current costs orders regime, the policy will apply equally to the representatives of both parties—in answer to the question of the noble Lord, Lord Paddick. This will include the Home Secretary when represented by presenting officers. To further ensure fairness, the paying party will be able to make representations before any order is made, and the tribunal retains absolute discretion as to whether a charge should be made in each case.

As I explained in Committee, tribunals can currently make wasted and unreasonable costs orders which relate to the legal costs of the parties. However, these mechanisms are generally only considered at the request of the other party and are infrequently employed. Clause 76 creates a new power for tribunals to order a party to pay an amount which represents a portion of the tribunal’s costs which have been wasted as a direct result of that party acting unreasonably, improperly or negligently. This power applies across all tribunal jurisdictions and is subject to the Tribunal Procedure Committee making rules for its application in a particular tribunal. It will allow the tribunal to make an order in relation to wasted tribunal resources in the same types of circumstances which would currently warrant a wasted or unreasonable costs order. An order can be made against “relevant participants”: this means legal and other representatives exercising rights of audience, and the Secretary of State where they are a party and do not have legal representatives. I hope that this goes some way to reassuring my noble friend.

To encourage increased consideration of whether to make costs orders, Clause 77 provides a duty on the Tribunal Procedure Committee to introduce tribunal procedure rules in the Immigration and Asylum Chamber. This will lead to judges more regularly considering whether to make a wasted costs order, an unreasonable costs order or a tribunal costs order under the new Clause 76 provision. This will ensure that circumstances and behaviours which have warranted the making of costs orders previously will more often give rise to judicial attention. While the requirement in Clause 77 is for the TPC to make rules in the Immigration and Asylum Chamber, it is at the committee’s discretion to create similar rules in other jurisdictions if it considers it appropriate. Specifically, Clause 77 requires procedural rules which identify circumstances or behaviours which, absent of reasonable explanation, the tribunal will treat as warranting consideration of the making of a costs order. The rules thereby introduce a presumption that requires the representative, or other relevant party responsible for such circumstances or behaviour, to explain themselves and why such a costs order should not be made. This will ensure the regular consideration of costs orders by the tribunal. More importantly, however, the tribunal will retain absolute discretion as to whether to make an order in all cases.

Noble Lords have asked whether this will mean fewer representatives willing to take on immigration work. The Government think it right that representatives should explain themselves if they are responsible for circumstances to be set out in the rules as warranting consideration of a costs order. However, where there is a reasonable explanation, no order would be expected. The tribunal continues to have full discretion as to whether to make the order. Therefore, these changes should not impact legal representatives who fulfil their duties to the court, remain committed to their work and ensure justice for their clients.

The noble Lord, Lord Paddick, asked why these changes are being made in the Immigration and Asylum Chamber and not in other jurisdictions. Obviously, the Nationality and Borders Bill as whole is focused on reforming the asylum system. Clauses 76 and 77 are part of a programme of reforms designed to streamline immigration and asylum appeals. There has been judicial concern, and a recognition that a problem exists with the behaviour of some legal representatives and other relevant parties in immigration proceedings. It is at the discretion of the Tribunal Procedure Committee to create similar rules in other jurisdictions if it considers it appropriate.

For the reasons I have outlined, I hope that my noble friend Lady McIntosh of Pickering feels able to withdraw her amendment.

[Baroness McIntosh of Pickering (Con)]

Before my noble friend sits down: I asked a specific question as to why the money raised will be paid into a consolidated fund. I listened carefully and I do not think I heard him respond on that point.

[Lord Sharpe of Epsom (Con)]

I am afraid that I will have to come back to the noble Baroness on that point.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful to all those who have spoken. I detect the mood of the House is not to support these provisions but the hour is late, and we have a lot more business to come, so am reluctant to test the opinion of the House. At this stage—

[Lord Sharpe of Epsom (Con)]

I am sorry for interrupting, but I have just been informed that the answer to the noble Baroness’s question is that it is standard practice.

[Baroness McIntosh of Pickering (Con)]

I am most grateful. If that is the case, I am surprised that the Law Society of Scotland is not aware of that, because it certainly did not respond in that regard.

I am grateful for the opportunity to raise my concerns. I would like another opportunity at some future date to pursue this further, but for the moment I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Rosser (Lab)]

I express our wholehearted support for the amendment and the extension of the BNO scheme to young Hong Kongers. I congratulate all noble Lords around this Chamber, from all parties and no party, who have campaigned on this issue. I thank the Government for their decision and the progress that has been made, which has led to agreement all around the House.

[Lord Sharpe of Epsom (Con)]

I thank noble Lords and pay particular tribute to the noble Lord, Lord Alton of Liverpool, who tirelessly campaigns on this and other issues. I thank him for his kind words, and I thank all noble Lords who have contributed to this short debate on Amendment 76.

We recognise that the BNO route is creating unfair outcomes for the families of BNO status holders, with some children able to access the route independently because they were old enough to be registered for BNO status, while their younger siblings, aged between 18 and 24, are unable to do so. That is why, on 24 February, the Government announced a change to the BNO route to enable individuals aged 18 or over who were born on or after 1 July 1997 and who have at least one BNO parent to apply to the route independently of their parents.

The policy change addresses the concerns raised by the noble Lord, Lord Alton, and other Members of both Houses. It will ensure that we are addressing potentially unfair outcomes for families of BNO status holders and ensure that the UK meets its ongoing commitment to BNO status holders.

In answer to the noble Baroness, Lady Bennett, I say that there are of course other routes for those who are not eligible under this particular scheme. We intend to lay the changes to the Immigration Rules in September, and they are expected to take effect from October.

In the light of these assurances, I ask the noble Lord to withdraw the amendment.

[Lord Alton of Liverpool (CB)]

My Lords, in the light of what the Minister has been able to say to the House, and of the debate and the excellent contributions from all who have spoken—including my noble friend Lord Green, with whom I have a good friendship but often disagree—I think that young Hong Kongers who come to this country will enrich our lives. I have seen for myself, in my own city of Liverpool, the great contribution that Hong Kong people have made over many generations. I know that these will be patriotic and loyal citizens, who will care for this country and enliven our society.

I beg leave to withdraw the amendment, and I am grateful to all who have spoken in tonight’s debate.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have participated in this relatively brief debate. I will start by addressing Amendment 77, tabled by the noble Lord, Lord Coaker, regarding settlement fees for non-UK members of our Armed Forces.

The Government highly value the service of all members of the Armed Forces, including Commonwealth nationals and Gurkhas from Nepal, who have a long and distinguished history of service to the UK here and overseas. That is why there are special immigration rules in place for our Armed Forces personnel that put them in a favourable position compared to other migrants, as I detailed last month during Committee. However, we recognise that the fees attached to settlement applications place a financial burden on our non-UK personnel, should they choose to remain in the UK after leaving the Armed Forces. That is why, last year, the Government consulted on waiving these fees altogether in some circumstances.

Following this, the Home Secretary and Defence Secretary announced on 23 February this year that the Government have decided to waive settlement fees, including administrative costs, for non-UK personnel in our Armed Forces who have served for six years or more, or are discharged due to an illness or injury attributable to their service, regardless of length of service. We are also extending the settlement fee waiver to undocumented veterans currently living in the UK who meet these criteria.

The noble Lord, Lord Coaker, asked me why it is six years, not four. I hope he will forgive the lengthy digression. Careful consideration was given to the number of years that should be used for the eligibility criteria. The initial policy proposal was for those who had served at least 12 years at the point of discharge, as the noble Lord acknowledged, but following the public consultation Ministers agreed that the eligibility criteria should be reduced to six years.

When considering the number of years’ service for the fee waiver, a balance rightly has to be made between value for money for the taxpayer and acknowledgement of the service of the individual. For example, it costs approximately £92,000 to train a soldier. Those costs cannot be discounted. Therefore, it was considered appropriate to set the eligibility criteria to those non-UK service personnel who have served for at least six years and wish to settle in the UK following service, given the significant outlay already invested by the taxpayer.

Four years is the minimum term of service that personnel must serve before applying for a discharge. It is important to note that there is no intention to change the option available to non-UK service personnel to make a paid application for settlement in the UK on discharge, as long as they have served a minimum of four years.

We recognise the strength of feeling from parliamentarians, service charities and the public about this issue, which is why it was decided to reduce the required length of service to be eligible, as I just said. It is estimated that the fee waiver may affect around 80% of non-UK service personnel. The Home Office is rightly focused on implementing this new policy at the earliest opportunity, the aim being for it to come into effect on 6 April this year.

I will digress again, because noble Lords also raised the issue of dependants. The Government believe that it is right and fair that fees and policies for non-UK family members of Armed Forces personnel are not more generous than those for dependants of British citizens and are applied consistently. Any decision to relax the fees or policies for non-UK family members of Armed Forces personnel could undermine current fees and the rules would be discriminatory.

Non-UK family members of Armed Forces personnel can apply for settlement once they have spent an initial five-year period in the UK with limited leave. The fees and policies that apply to the dependants of non-UK members of the UK Armed Forces are closely aligned with those that apply to dependants of British citizens and other settled persons under the standard family rules. Furthermore, reducing the fees for dependants of both non-UK and British Armed Forces personnel would be similarly discriminatory and unfair to those in other professions, many of whom face similar concerns and are contributing to the UK in other ways.

There is additional support for families in planning for the cost of visa fees. That is provided by things such as the Joining Forces credit union service for the Armed Forces. That was launched under the Armed Forces covenant in 2015, and it offers savings and loans schemes at fair rates through the payroll scheme. The issue raised by this amendment has largely been addressed by the recently announced government policy, which is due to be implemented in the near future.

I turn next to Amendment 78, tabled by the noble and gallant Lord, Lord Craig, regarding citizenship and settlement rights for British-Hong Kong veterans. I know he will listen to me extremely carefully, as indeed will those Hong Kong veterans watching live.

The Government remain extremely grateful for the contribution made by former British-Hong Kong service personnel. That is why the Minister for Safe and Legal Migration announced to the House of Commons on 7 December last year that the Home Secretary has identified an option that will enable our Government to treat this group of personnel in a similar way to other non-UK service personnel who were based in Hong Kong before the handover.

I appreciate that the noble and gallant Lord wants reassurance that the Government are taking concrete steps to further support British-Hong Kong veterans where possible. I can confirm that the Government will update Parliament by the end of June and implement any changes by the end of this calendar year. The Government remain committed to implementing a solution to the issue of British Hong-Kong veterans before the end of this calendar year, but I respectfully ask the House to give us the necessary space to do so.

[Lord Coaker (Lab)]

My Lords, I will let the noble and gallant Lord, Lord Craig, talk about Amendment 78 when we come to it, but, as one of the signatories, it would be churlish not to recognise the way the Government have moved on that issue.

With respect to Amendment 77, I appreciate that the Government again have made some movement on this but I do not think it is enough. It should be four years; that is what the demand is. I do not understand or accept the point the Minister made about the exclusion of dependants. Dependants should be included in any scheme we take forward. As such, I wish to test the opinion of the House.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I join other noble Lords and various noble Baronesses from across the House in welcoming Amendment 83, as tabled by the noble Baroness, Lady McIntosh, the right reverend Prelate the Bishop of Durham, the noble Lord, Lord Alton, and my noble friend Lady Lister. There is universal agreement that fees should not be a barrier to citizenship. I think the Government probably agree with that, so the only plea I make is that they act on it to make sure that fees do not act as a barrier. The Government have the power to do something about this. They can hear what people think about the importance of citizenship as a social glue in our society, and the reverence we all have for it, yet a barrier is placed because of the fee. The Government have it in their power to resolve it. Let us do it.

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to my noble friend Lady McIntosh for tabling Amendments 83 and 84, concerning the fees that may be charged in relation to registration of British citizenship. Please be in no doubt that we recognise the strength of feeling on this subject, which I know is of particular importance to my noble friend, as well as the noble Lord, Lord Alton of Liverpool, the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Lister. I say at the outset that the Government recognise that the acquisition of British citizenship is a significant life event and offers particular value to those able to obtain it, particularly children. All noble Lords agree with this point and have observed it.

Apart from allowing a child to apply for a British citizen passport, British citizenship gives them the opportunity to participate more fully in the life of their local community as they grow up. It also offers specific practical, legal and intangible benefits, including the right to vote on reaching adulthood, of course, and the particular sense of identity and belonging that results from knowing that the country that you have grown up in is your own.

Please let me also reassure the House that the Government are actively considering fees in this space. Following the Court of Appeal judgment in the case brought by the project for the registration of children as British citizens last year, the Secretary of State committed to reviewing the fee in line with her duties under Section 55 of the Borders, Citizenship and Immigration Act 2009. While I recognise that the House has been very patient, waiting for the outcome of that review as though waiting for Godot, it is the Government’s view that it was important to allow the Supreme Court to give its view on the questions raised by a separate ground in this case, which considered fundamental questions around whether the powers that underpin the setting of fees had been lawfully applied, before concluding that work. Following the Supreme Court judgment of 2 February, the Secretary of State is currently considering her policy response to the review, and I hope to update the House by early May. I cannot give a specific date.

Furthermore I reiterate that, as regards the new routes introduced by the Bill to correct instances of historical legislative unfairness, it remains the Government’s intention not to charge in instances where there has been historical unfairness and/or discrimination. This is in line with our approach to other instances of historical unfairness, where waivers and exceptions were introduced in fee regulations, as is appropriate for provisions of this nature. The Government are currently exploring options in this regard for the routes introduced by the Bill. I hope that this reassures my noble friend to some extent.

However, it is important to consider the legislative history of the fee-setting regime, and the intent that has underpinned it. Since the establishment of the current nationality regime in the British Nationality Act 1981, registration of British citizenship for those who either have an entitlement under the provisions of that Act or who are applying on a discretionary basis under Section 3(1) has been contingent on payment of a fee. Current fee-setting for British citizenship is underpinned by the powers set out under Section 68(9) of the Immigration Act 2014 which, as the Supreme Court has affirmed in its recent judgment, were explicitly authorised by Parliament and empowered the Secretary of State to set fees at a level that reflected the costs of exercising the function, the benefits that accrue to an applicant as a result of acquiring that British citizenship, and the wider costs of the borders and migration system. Parliament also explicitly authorised the maximum amount that may be charged in relation to an application for British citizenship registration at £1,500, through the Immigration and Nationality (Fees) Order 2016, which sets the framework for the current fees set out in secondary legislation.

The wider application of these principles and the powers to set immigration and nationality fees have underpinned the Government’s policy over the last decade of moving the borders and migration system to an increasingly self-funded basis, reducing the reliance on the UK taxpayer. Accordingly, fees across several routes, including nationality, have increased to support those broader funding objectives.

However, it is important to be clear on the role that these fees play in supporting the essential work of the border and migration system and particularly in funding the critical activity that supports and safeguards the interests of the people in the UK. These activities, which include ensuring that the UK’s borders are secure from threats and illegal activity, the effective operation of resettlement schemes to support those who are in greatest need and the management of a visa system that attracts the best and brightest to contribute to the UK’s prosperity, are essential to the delivery of the department’s wider mission and objectives.

Any reduction in income from fees must therefore be considered in terms of its impact on these activities, with the likely result being that activity in those areas will be reduced or income must be recovered through other means. This funding includes support for front-line operations that keep the country safe. A need to secure funding through other means may impact on fees for economic routes where the department’s objective is to attract visitors and skilled individuals to support the UK’s economy, which in turn benefits all those who live in the UK, or it will place an increased reliance on the taxpayer to fund these activities, which may in turn reduce the funding available for other important government work.

As such, there is a complex balance of considerations that the Secretary of State must take into account when setting fees, and, in line with the charging powers established by Parliament through the 2014 Act, these have informed the current fees structure. Fees charged are kept under review, as they are in other countries, and, as I have stated, there are ongoing considerations regarding fees charged for citizenship registration specifically, the outcome of which we will share in due course.

Additionally, I emphasise that elements of the amendment, such as the requirement to except fees for children in local authority care, although of course well intentioned, would more appropriately be set out in fees regulations and should not be introduced in primary legislation. In addition, it is not appropriate for a duty to have regard to the need to promote British citizenship in primary legislation that is setting fees. I therefore request that the noble Baroness withdraw her amendment for the reasons that I have outlined.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am humbled by the level of support expressed in the House this evening and outside the House from the Law Society of Scotland, the Project for the Registration of Children as British Citizens and Amnesty International UK. I pay tribute to the long-standing work of the noble Baroness, Lady Lister, and the support that I received this evening from the noble Lord, Lord Alton, and the right reverend Prelate the Bishop of Durham. Very seldom do the noble Baroness, Lady Fox, and I agree, but on this occasion I am delighted to have her support and that expressed by the noble Lord, Lord Hacking, and others. I am particularly pleased to welcome the support of my noble friend Lord Hodgson, who speaks with great authority on these matters. As he described it, the Government are going in the right direction, but I argue that, this evening, I do not believe that they have gone far enough. Therefore, regrettably, I wish to test the opinion of the House on Amendment 83.

Nationality and Borders Bill

Lord Sharpe of Epsom Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 2nd March 2022 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, I have been following this Bill since its inception. I have not spoken up to this point, but I have been increasingly concerned about the effect of this particular legislative initiative and its potential impact on our reputation internationally, which had been very good in this area up to now, largely because of our role as one of the founding signatories of the refugee convention.

The present situation is one about which the Government are clearly not being frank with the public and the House. My noble friend Lord Rosser quoted chapter and verse very effectively just now when he quoted the Minister saying that at one point she was in favour of, and at another point against, having reciprocal return agreements with other countries. If she wants me to give way to her, I am happy to do so. We should know the answer to that. We should know the answers to things we do not know the answer to. For example, in this country, are we committed to not breaking up families? Can we assume it is a guiding and regular principle that we will not break up families? If we do break up families of asylum seekers or otherwise, we shall be acting completely outside the pale of civilised behaviour. That would be extremely worrying to an awful lot of us.

The Government are known, in international rumour, to be in negotiation with a number of African countries—Rwanda, for example—on establishing some sort of camp or facility to take failed asylum seekers from this country, but we do not know what the terms of such an arrangement would be. The Government have not been frank enough to tell us. There are a lot of rumours going around, most of which are very unattractive. I hope the Government might do something about that.

There is a fundamental weakness at the root of what the Government are trying to structure here. People who have come in small boats and hidden in lorries have been accused of coming here illegally. Logically, one can see the reason for that accusation, but there is no way in which they can come legally, as far as I can see. The Government should think about setting up an office in, say, Dunkirk, Calais and Boulogne-sur-Mer so that there will be some direct contact with these potential illegal immigrants. It would not cost that much. They could make some progress in filling out forms and getting an initial reaction from the bureaucracy to their claim. That might be helpful all round.

The fact is that the Government are proceeding in their own way and have not always been very straight- forward with us. I hope that changes. I think all of us remember from our school days the Spartans in ancient Greece. They led a terrible life and were third-class citizens.

[Lord Sharpe of Epsom (Con)]

My Lords, with great respect, is the noble Lord actually referring to the specific amendment under discussion?

[Lord Davies of Stamford (Lab)]

I am endeavouring to do so but I shall not stand here for very long.

The ancient Spartans were helots. Their problem was that they had no rights—they had a growing population but no rights at all. I am very much afraid that if we take on board illegal immigrants and send them to some place in Africa, they will have no legal rights. It would be very worrying to have a population with no rights at all in a country that believes that that is firmly based on the law.

Nationality and Borders Bill

Lord Sharpe of Epsom Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Lord Rosser (Lab)]

My Lords, my noble friend Lady Lister of Burtersett has set out the background to and purpose of this amendment. As we know, currently only those born on the islands and the first generation born in exile have the right to British Overseas Territories citizenship and, therefore, to British citizenship. As a result, families have been broken up and communities divided. Some members have access to citizenship rights while others do not.

In the Commons, as has already been commented on, the Government accepted, on 4 November last year during the Committee stage of the Bill, that the Chagossians presented a unique case. By Report Stage in the following month, however, the Government seem to have decided that the Chagossians were no longer a unique case, because going down the road proposed,

“would undermine a long-standing principle of British nationality law … under which nationality or entitlement to nationality is not passed on to the second and subsequent generations born and settled outside the UK and its territories”.—[Official Report, Commons, 7/12/21; col. 258.]

The reason that the small number of Chagossians in question do not meet this condition is because they are descended from people who were evicted against their will from a British overseas territory. That is why they are unique, as the Government have already conceded. They did not leave of their own free will to settle elsewhere: they were kicked out—forcibly evicted. There would be no precedent set by agreeing to this amendment. In effect, the Government are using, in support of their case to deny these Chagossians the right to British citizenship, the cause of the very injustice which this amendment seeks to address. We support this amendment, and it would appear that we are far from the only ones in this House to do so.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I also thank the noble Baroness, Lady Lister, for meeting my noble friend Lady Williams last week and for the opportunity to hear further about the issues impacting the Chagossian community. As has been said previously, both in Committee and when my noble friend met the noble Baroness, Lady Lister, last week, and as noted by my noble friend Lady Altmann, the Government empathise and sympathise with the Chagossians about how they were treated in the 1960s and 1970s.

It is, however, important to clarify who this amendment seeks to assist. It is not those Chagossians who were of the generations born on the British Indian Ocean Territory, as they have always been British nationals and have been automatically considered both British Overseas Territories citizens and British citizens since 2002. Similarly, it is not their children, the first generation of Chagossians born outside of British territory, who are also both automatically British Overseas Territories citizens and British citizens. It is also not those in the first generation of Chagossians born outside of British territory, who, as the Chagossian community highlights, have missed out on rights to British nationality due to historical legislative unfairness, and this Bill already seeks to rectify that issue.

This amendment is limited to those in the second and successive generations of Chagossians born outside of British territory who, like all children of British nationals by descent, face a different route to British nationality. For this generation, if they wish to acquire British nationality, it is right that they must establish a close, continuing connection with either the UK or a British overseas territory by lawfully residing and settling there, although I recognise that since the 1970s, it has not been possible to establish such a link to the British Indian Ocean Territory. This must be in line with either the UK’s or an overseas territory’s Immigration Rules. This has also been the case with Hong Kong British Nationals Overseas, who do not have a right of abode in British territory and must complete a period of residence in the UK before acquiring the permanent residence status that is required in order to naturalise as a British citizen.

The points raised by the descendants of Chagossians, who are members of the second generation born outside British territory and who are now seeking to settle in the UK under the Immigration Rules, are often very complex. As the Minister for Safe and Legal Migration has stated in the House of Commons, the Home Office is keen to consider what more we could do to support those families seeking to settle here under the current system.

The Home Office is actively engaging with the Chagossian community to identify practical proposals that would support the second generation born outside British territory in navigating the system. In addition, the Home Office is discussing with the FCDO how the £40 million Chagos support fund, referenced by the noble Baroness, Lady Lister, could be used to deliver further support for Chagossians seeking to settle here under the Immigration Rules. Those discussions are current and ongoing, and I had some this morning.

As the Government have consistently stated, allowing entitlements to—

[Baroness Altmann (Con)]

I thank my noble friend for giving way. Can I ask him to confirm that, had the grandparents of these individuals not been expelled against their will from their islands, these people would now be entitled to the citizenship we are currently denying them?

[Lord Sharpe of Epsom (Con)]

I think I have already answered that question. It is to do with the generations born outside British territory, so yes.

As the Government have consistently stated, allowing entitlements to citizenship to be passed on beyond the first generation born outside the British territory, bypassing requirements to reside and settle here by those who do not have a continuing connection with the UK, would unfortunately undermine a key principle in British nationality law that applies to all other descendants of British nationals born abroad.

I recognise that the noble Baroness’s amendment has sought to limit the right to register as a British national to current generations who must apply within a limited timeframe. However, this does not alleviate the Government’s concern that offering this right is contrary to long-standing government policy and goes much further than the rights available to many other descendants of British nationals settled elsewhere around the world today.

I finish by saying that I have listened very carefully to this debate, and I realise I am something of a lone voice.

[Baroness Butler-Sloss (CB)]

I apologise to the Minister, but could I ask him to deal with this unique position? There is, as far as we know, no other group of people who have been evicted as they have and have not been allowed to go back. They are in a special position, but the noble Lord is not even dealing with that point.

[Lord Sharpe of Epsom (Con)]

I can only deal with it by extension, which is to say that it would be contrary to long-standing government policy to even deal with it.

I have listened very carefully to this debate. I have taken on board what the right reverend Prelate the Bishop of Durham has said about broad agreement—of course I have, and I will take it back to the Home Office. I will also take my noble friend Lord Horam’s suggestion back to the Home Office about dedicated support within the department, which strikes me as a very sensible suggestion. I am afraid that I am going to earn no credit with my noble friend Lord Cormack, because I invite noble Baroness to withdraw her amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank all noble Lords who have spoken. I think it is unusual to have more support from the Government Benches than from any other Benches—and very strong support it has been.

The two interventions really put their finger on how the poor Minister—I am afraid he is making a face—did not address the fact that this is a unique case, as the noble and learned Baroness, Lady Butler-Sloss, said. As the noble Baroness, Lady Altmann, said, if their grandparents had not been forcibly evicted and kept in exile, these people would probably still be living on the Chagos Islands and be entitled to British citizenship. It is citizenship that they want. Certainly, the Chagossians who have been in touch with me are desperate to be seen as citizens; they do not want to come through some intricate way of dealing with the Immigration Rules—that is not what they are seeking.

I am sorry that the Minister has not addressed the key issues here. The noble and learned Baroness, Lady Butler-Sloss, described successive Governments as demonstrating “disgraceful behaviour”. As the noble Lord, Lord Horam, said, we all, in terms of our political parties—not the Green Party, but all the others—have responsibility here. This is our opportunity to put this injustice right. I wish to seek the opinion of the House.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I thank noble Lords who have taken part in this debate.

I turn first to Amendment 2. As has been acknowledged, there are differences in adoption law in various parts of the UK. This is why we do not think that amending Section 1(5) of the British Nationality Act 1981 would be the answer. The Adoption and Children Act 2002 applies only to England and Wales, whereas the territorial reach of the British Nationality Act 1981 includes the whole of the UK. This means that this amendment could have different results in a person’s ability to acquire citizenship, according to where they were adopted. For example, Scotland permits adoptions for those over 18, but differs from England and Wales as there is no upper age limit. Northern Ireland does not currently permit adoptions to happen after the age of 18. Therefore, the effect of this amendment would be to create differences across the UK in who can acquire British citizenship. This should not and could not be right.

Within nationality legislation, automatic acquisition of citizenship is generally reserved for minors. Granting automatic citizenship to adults could result in unintended consequences, possibly affecting another nationality which they hold. Where other countries do not allow their nationals to hold dual nationality, there are often exemptions for children which do not apply for adults. We normally offer adults a registration route so that the person can make a conscious choice about becoming British and take into account any potential implications of doing so.

While we do not want to amend Section 1(5) as proposed, we could use Clause 7 of the Nationality and Borders Bill in these cases. Clause 7 creates a route to British citizenship for those who missed out on acquiring it because of historical legislative unfairness, an act or omission of a public body, or exemptional circumstances relating to that individual. The noble Lord, Lord Russell, has noted this, and I will come to his specific questions in a moment. Registration would allow a person to acquire citizenship without causing unintended consequences as a result of the different legislation in devolved regimes and the overarching nationality law framework.

We will set out in guidance how we intend to use the adult discretionary registration provision created by Clause 7. The discretion must be considered on a case-by-case basis, but we can give examples of where it would normally be used. We think it would normally be reasonable to grant citizenship to an applicant where, for example, an application for adoption is made before a child’s 18th birthday but the adoption order is made afterwards for reasons beyond the control of the parent or child, or where the adoptive parent is a British citizen and the child would have become a British citizen under Section 1(5) of the British Nationality Act 1981, if they had been 18 at the time when the adoption order is made.

--- Later in debate ---

[Lord Green of Deddington (CB)]

Before the noble Lord sits down—

[Lord Sharpe of Epsom (Con)]

With the greatest respect to the noble Lord, under the rules of Report stage, one is allowed to speak only once during the debate.

[Lord Rosser (Lab)]

My Lords, as has been said, Clause 11 is about differential treatment of recognised refugees. There is the distinction that the noble Lord, Lord Paddick, referred to between refugees and immigration generally. We believe that Clause 11 contravenes the 1951 refugee convention: it sets a dangerous precedent by creating a two-tier system—group 1 refugees and group 2 refugees—and, frankly, it is also inhumane.

Under the Bill, the Home Secretary will be given sweeping powers to decide asylum cases based on how someone arrives in this country and their mode of transport, not on the strength of their claim, contrary to the 1951 refugee convention, of which Britain was a founding member. The different ways those two groups could be treated is not limited in any way by the Bill, although Clause 11 provides examples: those who travel via a third country, who do not have documents or who did not claim asylum immediately will routinely be designated as group 2 refugees.

Nationality and Borders Bill

Lord Sharpe of Epsom Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Lord Coaker (Lab)]

I will add my voice of support to my noble friend Lady Ritchie. It is good to have the perspective that she brings to this Committee. Our institutional memory in Parliament, in this place and the other place, with respect to Ireland is not as great as it was. It is a perspective that needs to be brought here more often, so this is an important little debate. I think the noble Viscount, Lord Brookeborough, will agree.

I say to the Minister that, whatever the rights and wrongs of all this—and I agree with what my noble friend said—it plays into the narrative that the Government do not have a grip with respect to Ireland. The consequences of that, as the noble Baroness, Lady Suttie, pointed out, are absolutely and potentially really difficult. Even if people are non-British or non-Irish, if they have to have an ETA to cross the border, how on earth is that going to work? Practically, at the end of the day, if it is worth having, somebody will have to check it. I know that it does not apply to British and Irish citizens, but suppose, as a British man, I have an American wife or a French girlfriend; we go to Northern Ireland and somebody checks it—with the history of the police and security forces checking documents. The Government have to wake up to this. Unless the Minister can get up and say, “We’re going to sort this and this is what’s going to happen”, it will drift on and on and the consequences will be potentially really difficult.

It is no wonder that the Irish Government and various organisations across the whole of the UK and Ireland are saying that the Government need to get a grip on this. It is ludicrous. I gave an example. The noble Viscount, Lord Brookeborough, will know far better than me. What about somebody who for years has lived a mile across the border, has a mixed marriage in terms of nationality—somebody who is a British or Irish citizen married to an American—and wants to go shopping or to a hotel four miles down the road that happens to be in Northern Ireland? Do they need an ETA?

This is one of those things about which people outside Parliament say, “Do you know what you are doing?” Frankly, this is something that is so serious, and all the time we are looking at it we are trying to resolve it. It is difficult. It raises issues that you do not appreciate. If only you understood how difficult it is. Well, I do understand how difficult it might be, and I also understand this: the border, for reasons that we all know, whether it is drawn in Ireland or down the Irish Sea, has consequences that are enormous for the people of Ireland and for people here.

The Government have to sort this out in a way that commands respect and agreement from all communities. The amendment that my noble friend Lady Ritchie has brought before us is important, but I implore the Government: whatever the rights and wrongs of getting into Shannon Airport, whoever is right about whether it is seen as a back-door way of getting into the UK, et cetera—and I should say that the Irish Government have visa requirements as well, which will influence how people come in, so that may be one of the answers —it just has to be resolved. There has to be more than a ministerial, “We understand the importance of this and the difficulties, and that it needs to be sorted out”. The frank reality is that the time for sorting it out was yesterday, not today or tomorrow. It is about time that the Government got a grip of this, otherwise there will be very serious consequences further down the road.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords very much for participating in this short but powerful debate. I thank the noble Baroness, Lady Ritchie of Downpatrick, and second the point of view of the noble Lord, Lord Coaker, that you bring—I said “you” again; I am very sorry—an interesting and unusual perspective to this debate. I thank her for that. In answer to the noble Baroness’s question about the letter to my noble friend Lady Williams of Trafford, the noble Baroness will have a reply in a week that will outline the details she asked for.

The Government are clear: there will continue to be no routine immigration controls on journeys to the UK from within the common travel area, and none whatever on the land border between Ireland and Northern Ireland. That will remain the position when the ETA scheme is introduced.

It may be helpful if I explain that all individuals, other than British and Irish citizens, arriving in the UK, including those crossing the land border into Northern Ireland, already need to enter in line with the UK’s immigration framework. I think this goes some way to answering the point raised by the noble Lord, Lord Coaker, about the hypothetical American wife or French girlfriend. I think it also deals with the point made by my noble friend, Lady Neville-Rolfe. For example, visa nationals are required to obtain a visa for the UK when travelling via Ireland, otherwise they are entering illegally. We are therefore applying the same principle to individuals requiring an ETA who enter the UK via Ireland without one.

The noble Baroness, Lady Ritchie, referenced Article 2 of the protocol. The Government consider that the ETA scheme is compliant, and they will continue to consider their obligations under the protocol with regard to this. I want to reassure the noble Baroness that the process for obtaining an ETA will be quick and light touch. I am told that it will be not dissimilar to acquiring an American ESTA, which I am sure many noble Lords are familiar with. As many people will know, that is very straightforward and easy. Once granted, an ETA will be valid for multiple journeys over an extended period, minimising the burden on those making frequent trips, including those across the Northern Ireland border. I perhaps should have said that I have had considerable experience of crossing that border on numerous occasions.

In terms of the specific questions on the CTA, as far as I am aware, it has nothing to do with Brexit. It predates Brexit does it not? It goes back to 1923 and partition I think, from my dim and distant memory. I am sure I will be corrected if I am wrong. All CTA members are firmly committed to protecting the common travel area. I will reiterate this point: even with the introduction of ETAs, there will be no routine immigration controls on arrivals to the UK from elsewhere in the common travel area—only intelligence-led controls with no immigration controls whatever on the Ireland/Northern Ireland land border. Given the tone of the debate, I hope noble Lords will allow me to keep reiterating that point.

[Baroness Ritchie of Downpatrick (Lab)]

I thank the Minister for giving way. Could he outline to the Committee how these ETAs will operate. Where will the work be carried out? How will people complete the necessary requirements and what will be the cost? These are the issues that the people are asking. They do not want ETAs to be a disincentive to tourism, the local economy or business generally.

[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness for that intervention. I am going to come on to a number of those points subsequently. In terms of cost, I am told it will be competitive with international norms. I have just referred to the ESTA programme in the States. I looked that up this morning in anticipation of this, and it is currently $14, so it is not overwhelming. In terms of the enforcement, which I think is at the heart of the matter, I will come to that in a second if I may.

There will be no controls whatever on the Northern Ireland land border. Individuals will be able to continue to pass through border control at first point of entry to the common travel area. As is currently the case, individuals arriving in the UK, including those crossing the land border into Northern Ireland, will need to continue to enter in line with the UK’s immigration framework. Obviously, that includes the ETA.

Many noble Lords, including the noble Viscount, Lord Brookeborough, have asked about the impact on tourism. The Government acknowledge that a clear communication strategy is obviously going to be key to tackling any misunderstanding about the requirements to travel to Northern Ireland. We are planning to work across government, utilising internal and external stakeholders and a variety of communication channels to ensure that the ETA requirement is communicated very clearly.

[Viscount Brookeborough (CB)]

Can I just make one point? Northern Ireland is the size of Yorkshire. What the Minister is really stating is that somebody who goes on holiday to Yorkshire must not go to a neighbouring county for any reason without complying with this regulation. I am terribly sorry, but this is complete and utter rubbish. It is nonsensical and it is not going to work. What do people do if they go touring in Yorkshire? They tour outside it. If tourists go to Ireland, why should they not simply tour Ireland? No amount of communication will do—I am very sorry—and there is nobody to police it. What the Government are talking about is simply unworkable and disastrous.

[Lord Sharpe of Epsom (Con)]

I thank the noble Viscount—sort of. There will be no hard border. As I said, there is not going to be a hard border in Northern Ireland, and within the CTA there is effectively no change.

In answer to the point made by the noble Baroness, Lady Suttie, about enforcement, which was brought up subsequently as well, I have said it three or four times now: there will be no routine border controls on journeys from within the common travel area, which goes some way to answering the Yorkshire example. There will be none at all on the land border between Ireland and Northern Ireland. Everyone entering the UK, regardless of where they enter from—again, as I have said—is required to meet the UK’s immigration framework. In answer to “What’s the point of having it, then?”, anyone entering the UK without an ETA, or any form of immigration permission where required, will be entering illegally and may be subject to enforcement if encountered during intelligence-led operational activity.

[Lord Coaker (Lab)]

I say gently to the Minister that he has to be really careful with language on things such as conforming to immigration policy and the UK border. The historic context of some of the language that he used means that he has to be really careful when talking about moving across borders or even saying that there will not be a border control but talking about complying with UK immigration policies.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I completely understand the point that the noble Lord, Lord Coaker, is making. I promise him that I am sticking very closely to the script. I am well aware of that.

I think I have dealt with most of the questions, albeit probably not to noble Lords’ satisfaction. What I cannot do, I am afraid, is commit to coming back on Report with anything, but obviously I am going to reflect very carefully on the tone of this debate—to go to the point made by the noble Lord, Lord Coaker—and take that back to the department.

Turning to Amendment 175ZA, I assure the House that the Government will conduct robust identity and suitability checks before granting an ETA. We will use the information supplied in the ETA application form to check against our watchlist system. However, as I am sure the noble Lord and the noble Baroness will understand, I cannot go into details of the exact checks that applicants will undergo or how those checks will be conducted, as to do so could undermine our ability to secure the UK border. Such a detailed commentary could provide those people whom we want to prevent from travelling to the UK sufficient information to attempt to circumvent our controls, undermining the very objective of the ETA scheme and the wider universal permission-to-travel requirement to enhance the security of our border.

The noble Baroness, Lady Hamwee, asked about what has happened since we left the European Union and lost access to the European Criminal Records Information System and the Schengen Information System. The UK participated only in the law enforcement aspects of SIS II, meaning that we could not, and did not, use SIS II information for immigration purposes. Therefore, having returned to the Interpol channels, we are now routinely exchanging information with EU member states on persons of interest, including missing and wanted individuals, and on lost and stolen documents. Moreover, through the EU-UK Trade and Cooperation Agreement, we continue to share criminal records with the EU for law enforcement purposes, including to assist criminal proceedings and for public protection. This is almost identical to the arrangement that we had under ECRIS as an EU member state.

I assure noble Lords that the confirmation of an individual’s status prior to travel will be a matter for the Home Office and their carrier. The onus will not be on the individual to produce evidence of their status to a carrier; instead, carriers will be expected to check and confirm with the Home Office that an individual has an appropriate permission before they bring them to the UK. It is our long-term ambition for all carriers operating scheduled services across all modes—air, rail and maritime—to use interactive advance passenger information, or iAPI, systems to provide passenger information to the Home Office in advance of travel. In return, passengers will receive confirmation of permission to travel prior to boarding.

iAPI is already a well-established mechanism used around the world, particularly by other countries that already operate travel authorisation schemes. None the less, the Home Office will undertake rigorous systems testing to ensure that our messaging to carriers works before the scheme goes live. We expect the likelihood of a technical malfunction occurring to be negligible.

In the unlikely event that a technical malfunction does occur—

[Baroness Neville-Rolfe (Con)]

I wanted to ask my noble friend about what happens when there is a technical malfunction, but I think he was going to answer that question. Having been caught out when the ESTA system went down when I was trying to go to California, I ended up missing my flight and having to go via Seattle, which took another eight or nine hours. It is important to have strong technical systems if you are going to rely on them, but it may be that there is a waiver or some arrangement that can be introduced.

[Lord Sharpe of Epsom (Con)]

I completely agree with my noble friend: obviously it is important to have well-established protocols in place if such a thing happens. I can assure noble Lords that the Home Office will ensure that passengers are not disproportionately impacted or prevented travelling to the UK. As is already set out in Clause 72, we will not penalise carriers where, due to a Home Office systems outage, it is not possible for them to establish an individual’s status.

On Amendment 186, the Government are steadfastly committed to the Belfast agreement and the two distinct birthright provisions in it: the right to identify and be accepted as British, Irish or both; and the right to hold British and Irish citizenship. In recognising the birthright of the people of Northern Ireland in respect of identity and confirming their birthright in respect of citizenship, the Belfast agreement is clear in guaranteeing that these rights already exist. It expressly and clearly said how and where the law should be changed in many areas but it made no such stipulation on this particular matter of identity.

This amendment would require the Home Secretary to propose stipulating a particular view of identity in law. Doing so would risk impinging on the freedom of the people of Northern Ireland to choose what their identity means to them. It would also amount to treating an integral part of the United Kingdom differently. The Government cannot accept such a proposition; nor can they accept an amendment that is contrary to the intention of the Belfast agreement.

I am aware that some of these answers have not satisfied noble Lords. As I said, I will reflect the tone of this debate back to the Home Office very carefully. I am also aware that I have not answered my noble friend Lord Moylan’s question about reciprocity; I am sure that he will forgive me for not even attempting to do so.

I invite the noble Lords not to press their amendments.

[Baroness Ritchie of Downpatrick (Lab)]

I thank all noble Lords who have contributed to this debate from across the Committee. I say to the Minister that I happen to agree with the noble Viscount, Lord Brookeborough: the proposal in Clause 72 is a nonsense and will be unworkable, not because people will not want it work but because it will be dysfunctional both physically and operationally. It will act as a disincentive to tourism and business, as well as to societal arrangements because many non-Irish and non-British people who live in the Republic of Ireland have family in Northern Ireland. There will be preventions there.

I urge the Minister to reflect on all the contributions that have been made today in his discussions with the Home Office. Again, I suggest that we will probably come back on Report with a further amendment on this issue because we do not want impediments placed in the way of our tourism industry, our economy, our business and the normal day-to-day travel of people who live on both sides of the land border, which is largely invisible as it stands. Noble Lords who have travelled a lot will know exactly what we are talking about.

For those reasons, I rather reluctantly beg leave to withdraw my amendment but reserve the right to bring it back on Report.

--- Later in debate ---

[Lord Rosser (Lab)]

This clause would extend the use of Schedule 7 to the Terrorism Act to people who have been detained under the immigration Acts and transported outside of a port or border area. Schedule 7 can be an important tool in the prevention of terrorism, but it has had a chequered past at times. It has been improved in recent years by the work of independent reviewers of terrorism legislation, two of whom we are now fortunate to have as Members of this House.

I have three or four questions for the Government on the provisions of Clause 74. Have the Government consulted on the extension of the power? Has the change been requested and, if so, by whom or by what body? Can the Minister give more detail on the scale of the problem this is designed to address? How many individuals are officers unable to stop and question under the current arrangements? How was the period of five days arrived at? For those who travel through conventional routes, does not the power have to be used pretty much immediately, in which case five days is a considerable extension? Finally, the powers apply provided an officer “believes” that the person arrived at sea, was apprehended within 24 hours of arrival, and it has been no more than five days since they were apprehended. What will that “belief” that the officer is required to have be based on? It would be helpful if the Government could give some responses to those questions.

[Lord Sharpe of Epsom (Con)]

I thank both Members of the Committee for their remarks. Schedule 7 examinations have been instrumental in securing evidence to convict terrorists, yielding intelligence to detect terrorist threats and supporting the disruption or deterrence of terrorist activity. Currently, officers may exercise Schedule 7 powers only when an individual is located within a port or border area as defined in the Act. Clause 74 will provide an added layer of protection to the existing processes in place for dealing with those who arrive irregularly by sea in the UK. I think that goes some way to answering the question of the noble Lord, Lord Rosser—they are arriving irregularly outside of ports. The Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, has stated:

“In principle, people arriving irregularly in the United Kingdom should be liable to counter-terrorism examination as much as those arriving at sea ports and airports.”


This clause ensures that, for those arriving irregularly by sea, such as via illegal channel crossings, this will continue be the case.

There are several reasons why those who engage in illegal channel crossings can be moved to a different location from their place of arrival very quickly after arriving. They can range from weight of numbers to the need to move the vulnerable or those in need of medical attention to more appropriate facilities. It is impractical and inhumane to keep large groups of people port side in order to give counterterrorism police an appropriate opportunity to exercise their current powers under Schedule 7.

I reassure noble Lords who tabled the amendment that this is by no means an attempt to treat all migrants arriving in this manner as terrorists, or to stop and examine large numbers of people away from ports and borders. Schedule 7 is not designed and cannot be used as a universal screening mechanism, and Clause 74 has been deliberately drawn to provide an appropriate time window for counterterrorism police to exercise their powers under Schedule 7.

To remove the effect of Clause 74 would impact our ability to determine whether those who are entering the UK in this way are involved in terrorism, impacting our national security. It would continue a scenario where those who arrive in the UK by conventional means are subject to powers to determine involvement in terrorist activity, whereas those who have arrived irregularly by sea, and about whom we have very little documented information, may not be.

I cannot answer precisely who has been consulted on this, other than the Independent Reviewer of Terrorism Legislation, and obviously the counterterrorism police will have a keen interest in how this debate develops. To answer on the numbers, this concerns those arriving irregularly by sea, outside established ports, under the existing rules. I could not tell you how many there are. The other questions impinge on operational matters, on which I am not qualified to comment. I therefore ask the noble Baroness to withdraw the amendment.

[Baroness Hamwee (LD)]

My Lords, the Minister said there is a deliberate time limit to these powers. I may be reading this wrong, but they apply to

“the period of 5 days beginning with the day after the day on which the person was apprehended”.

It is not five days from entry or arrival. I am not sure whether that would alter those points that the Minister suggested we take into account. But, since we are not even half way through the groups of amendments, I had better just beg leave to withdraw the amendment.

Nationality and Borders Bill

Lord Sharpe of Epsom Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

May I just suggest to the Committee that we proceed with the Committee? I occasionally have nightmares about these issues and I am probably too sensitive to engage in human rights debates, but the die is cast—what can I say? I can think of nightmares I might have about who would be at the Dispatch Box to answer to my questions. At the moment, the little “question time” I have just heard is exceeding the worst nightmare. Can we perhaps hear from the Minister we have, rather than the potential Minister of my nightmares?

[Lord Sharpe of Epsom (Con)]

I will take that as an invitation. Thank you very much indeed. I will try not to be a nightmare.

[Baroness Hamwee (LD)]

I am sorry to disappoint the noble Baroness, Lady Chakrabarti. I thank those who have been complimentary about this amendment and make it clear that it is a team effort on our part. I really did not expect it to provoke such debate, but the thoughts that are teeming round people’s minds are bound to burst out at some point.

I want to ask about Amendment 129, and I will return the compliment to the noble Lord, Lord Coaker. It makes an immensely important point but reading it, I wondered whether there was not already an offence—an inchoate offence, possibly, under the existing immigration legislation, or possibly even conspiracy. I do not want to anticipate Clause 40, but are there any problems in using Sections 25 and 25A of the Immigration Act 1971?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I thank all noble Lords who participated in this wide-ranging and powerful debate. We did perhaps stray slightly off the subject of the amendments, and some of the debate has bled into the next group and was, I suppose, more philosophical, about the Bill in general. I will confine my remarks to the amendments, if I may, because I know that many of the matters debated will come up again—not in their “proper place”, because that would be to demean the arguments, but in their more appropriate context.

I will begin with Amendment 36, a new clause proposed to be inserted before Clause 11 on the issue of smuggling, from the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. I will then address the amendment put forward by the noble Lord, Lord Coaker, on advertising illegal routes to the UK. As I said, I thank all noble Lords for their contributions.

The UK takes smuggling and illegal migration extremely seriously. We are absolutely committed to tackling organised immigration crime, or OIC, in all its forms. We work closely with near-neighbour countries such as France, Belgium and the Netherlands, and key international partners beyond Europe to address this exploitative crime and tackle smuggling networks. To tackle this threat, we have in place a multi-agency OIC taskforce which brings together law enforcement, border guards, immigration officials and prosecutors to tackle organised crime groups involved in people smuggling. This taskforce is currently working with partners in some 17 source and transit countries.

In addition, there are already agreements in place to tackle smuggling and illegal migration. For example, in November 2021 the Prime Minister signed an agreement with Belgium reaffirming the two countries’ close partnership and commitment to tackling shared threats such as serious and organised crime, including human smuggling. The two countries are committed to strengthening the legal framework for co-operation between our law enforcement agendas with a co-operation agreement and a focus on information exchange. The UK is committed to working with France to maintain the security of our shared border and to tackle illegal migration. This relationship is long-standing, supported by the Sandhurst Treaty.

Most recently, in 2021 a bilateral arrangement was reached between the UK and France. The UK pledged to make a further financial investment of approximately £54 million in 2021-22. Last year’s investment saw the French doubling the numbers of officers patrolling beaches.

Addressing the organised crime groups that facilitate illegal migration to the UK remains a UK priority. In July 2020, the Home Secretary and the French Minister of the Interior signed an agreement to create a joint intelligence cell to crack down on people-smuggling gangs. In 2021, over 23,000 crossing attempts were prevented by French law enforcement, to which the noble Lord, Lord Coaker, referred. Since the UK-France JIC was established, along with France we have dismantled 17 small-boat organised criminal groups and secured over 400 arrests.

I stress that the UK has a strong stance on smuggling and illegal migration and has agreements in place with near neighbours to reflect this. This amendment will not be helpful in the Government’s continued efforts to tackle these crimes. It may hinder the fruitful and open dialogue on these issues between the UK and its international partners, many of which would not agree to their discussions and domestic activity aimed at reducing people smuggling to be published to a domestic UK audience.

I cannot support Amendment 36 because it is not appropriate to provide a running commentary on the actions that are being taken to tackle people smugglers, much of which will be sensitive activity, particularly from an operational point of view, and based on intelligence sharing with the aim of protecting vulnerable people.

If I may be permitted a personal anecdote, I have some experience in operational sensitivities. When I served in the Royal Hong Kong Police Force, I spent much of my time on the border and was heavily involved in matters of migration. Some of it was profoundly harrowing, particularly the Vietnamese boat people, who were helped by Hong Kong and the Royal Hong Kong Police Force, but much of it was organised by criminal gangs. This was not a multinational but a multi-agency approach. However, the principles remain the same. If the smugglers, who in colloquial Cantonese were known as snakeheads, got wind of our countermeasures, they changed their methods, and changed them very quickly. Unfortunately, these people may be evil and prey on others’ vulnerability but they are not stupid.

During the debate we discussed safe and legal routes, and my noble friend the Minister sent a letter to the noble Lord, Lord Dubs, outlining some of them recently. If more detail is required, we will write again. Without going into all the detail, I shall highlight the headlines of the various safe and legal routes that are available. It is slightly off-topic but, given the tone of the debate, it is worth doing.

Obviously, there is a UK resettlement scheme, which commenced in February 2021 and prioritises the resettlement of refugees. There is a community sponsorship scheme and a mandate resettlement scheme. There is a refugee family reunion scheme, which many noble Lords referred to. The Bill does not cut down on family reunion. On the point raised by the noble Baroness, Lady Lister, we have granted over 39,000 refugee family reunion visas since 2015. There is the well-known Afghan citizens’ resettlement scheme, the Afghan relocations and assistance policy and the immigration route for British national overseas status holders from Hong Kong. As I said, that is slightly off-topic with regard to these amendments, but I hope that noble Lords appreciate that brief digression.

Turning to Amendment 129, I am grateful to the noble Lord, Lord Coaker, for raising this important topic. We agree unreservedly with the need to target those who assist unlawful immigration to the UK. It is imperative that we take action to prevent and prosecute people smuggling. We are taking steps to combat illegal migration and the activities associated with people smuggling by increasing the maximum penalty for facilitation from 14 years’ imprisonment to life imprisonment. This aligns with the maximum penalty for human trafficking as contained in the Modern Slavery Act. By doing so, we are emphasising to the courts the gravity with which the most serious offenders should be treated.

We have also turned our attention to Section 25A of the Immigration Act 1971. Currently, Section 25A relates to helping the arrival or entry for gain—I stress that—of an asylum seeker into the UK. Clause 40 removes the current requirement for the facilitation to be “for gain”. Removing the “for gain” element from Section 25A will allow for successful prosecution of those facilitating the arrival or entry into the UK of asylum seekers where the “for gain” element cannot be proven beyond reasonable doubt.

To be absolutely clear, the focus of Clause 40 is on criminals who act to exploit and endanger people. We have made it clear that persons do not commit an offence of facilitation if the act is done by, on behalf of, or co-ordinated by, Her Majesty’s coastguard or overseas equivalent. This provides protection not only for organisations such as the RNLI, but for individual seafarers who respond to mayday relays.

--- Later in debate ---

[Lord Lea of Crondall (Non-Afl)]

My Lords—

[Lord Sharpe of Epsom (Con)]

The noble and learned Lord has an amendment and he wishes to speak to it.

[Lord Etherton (CB)]

My Lords, I would like to speak to my Amendment 41. It is a very specific amendment relating to Clause 11 as it currently stands. Before I turn to that, however, I will take up the words of my noble and learned friend Lord Brown in relation to providing a legal structure for our discussion here. The first thing, which has been emphasised by a number of noble Lords, though not all, is that Article 31 is central to the discussion. This is because it is obvious that the Government, in relation to Clause 11 and the following clauses, are seeking to interpret and apply their view of Article 31.

It has been suggested that we can ignore the convention because we must have regard to what people think today, but I am afraid that we cannot do that. We are a party to this convention: if we do not like it, the Government will have to recuse themselves from it and try to get other countries to change it. At the moment, however, the convention applies.

Article 31 says that no penalty shall be imposed on account of illegal entry or presence on a refugee who satisfies three requirements. These are the three requirements set out in Clause 11. The first is that the refugee comes directly from the territory of persecution. The second is that the refugee presents themselves without delay to the authorities. The third is that the refugee shows good cause for their illegal entry or presence. That is what Clause 11 is about. However, you cannot read Clause 11 on its own because the subsequent clauses all have some impact on it. In particular, Clause 36 is critical because it seeks to give a definition of coming directly from the territory of persecution.

Noble Lords will see from what I have just described that, although Article 31 says what the Government cannot do—that is, they cannot impose a penalty if those three requirements are satisfied—it does not go on to say that, if they are not satisfied, you can have a differentiation such as that in Clause 11. That is a matter of policy, and I can certainly see the force of the argument for saying that this division that has taken place in Clause 11 is sufficiently inconsistent with the definition of a refugee to make it improper.

There is a more fundamental point: Clause 36, referred to by my noble and learned friend, in seeking to define “coming directly from another country,” says that the requirement is not to be taken as satisfied if the refugee stopped in another country outside the UK, unless they can show that they could not have reasonably been expected to have sought protection under the convention in that country. There is no such qualification in Article 31, and it appears that the Government believe they can, through legislation, elaborate on the meaning of Article 31 in whatever way would best suit the current asylum policy of the day. This, I am afraid, is entirely misguided as a matter of law.

As an international treaty, the convention has the same meaning for each and every member state that signed up to it. It cannot bear different meanings for each member state, according to the policy of the Government of the state for the time being. In England and Wales, the court has, pursuant to its constitutional role of interpreting legislation and written law, held that a refugee may still come directly to a member state, within the meaning of Article 31, even if the refugee passes through one or more intermediate countries, if the final destination of the refugee has always been the state in which the asylum is finally claimed and the halts in the intermediate country or countries are no more than short-term stopovers. My noble and learned friend Lord Brown referred to his judgment in the Adimi case, which decided that very point.

On the global picture, to cut matters short—before I turn to the particular amendment—I am against the division, the separation, between group 1 and group 2 in Clause 11 because it depends on a requirement, or the failure to meet a requirement, which is directly contrary to the convention. Therefore, I certainly object to the division between group 1 and group 2 so long as Clause 36 stays in its present form, with its present definition of coming “directly”, on both logical and legal grounds—quite apart from the matter of general principle, which other noble Lords have mentioned, about the demeaning nature of distinguishing between two different categories.

Nationality and Borders Bill

Lord Sharpe of Epsom Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Lord Bethell (Con)]

My Lords, I also support Amendment 46 and the amendment in the names of my noble friend Lady Stroud and the noble Baronesses, Lady Lister, Lady Prashar and Lady Ludford. I support the call for asylum seekers who have waited six months for an official decision to be allowed the right to work. We have heard some really persuasive arguments for that, and there are a large number of them, in terms of both principle and the law. I will make the argument in terms of pragmatism.

This policy would strengthen integration by allowing asylum seekers to participate in society rather than leaving their lives in limbo. That means that people who come to this country can be treated fairly and be integrated on reasonable terms, sparing themselves a large amount of disruption, which would eventually lead to some kind of social impact. Currently, without the right to work and receiving less than £6 per day to live on, many people in the asylum system will lose hope—

[Lord Sharpe of Epsom (Con)]

I think that my noble friend might be speaking to the next group of amendments.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise to speak on behalf of my noble friend Lady Jones of Moulsecoomb, who signed both Amendments 46 and 54, in the names of the noble Baroness, Lady Lister, and others, about no recourse to public funds. The question has been clearly set out by the noble Baronesses, Lady Lister, and the noble Baroness, Lady Stroud, added a great deal to this debate, which has been very rich thus far.

I must admit to a certain sense of déjà vu, in that we have had much the same cast as in debates on the Domestic Abuse Act, discussing much the same issues around the absolute horror of no recourse to public funds. We are talking about a particular group of people in that situation now, but I state loudly and clearly: no one who is here as part of UK society should have no recourse to public funds. That is inhumane, unjust and damaging to our society for some of the reasons that the noble Baroness, Lady Stroud, just set out.

It is interesting that it is almost two years since Boris Johnson claimed not to know that this status existed—that he did not know that there was such a thing as no recourse to public funds. At that time, he promised to review the policy, but I understand that there has been no overall review of no recourse to public funds, although I would be very pleased if the Minister could tell me that I am wrong about that.

But I want to add one point, which goes back to the group that we discussed before the dinner break. The Minister tried to clearly draw a line between differentiation and discrimination. I think that no recourse to public funds is very clear cut and obvious: you either have access to money, as the noble Baroness, Lady Stroud, said, if you are in work and need extra support to survive and feed yourself, or you do not. How can it be anything but discrimination if you do not have access to that money, despite being in exactly the same situation as the person beside you, doing the same job?

Police, Crime, Sentencing and Courts Bill

Lord Sharpe of Epsom Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

109G: After Clause 55, insert the following new Clause—
“Increase in penalty for offences related to game etc
(1) Section 1 of the Night Poaching Act 1828 (taking or destroying game or rabbits by night or entering land for that purpose) is amended in accordance with subsections (2) to (4).(2) The existing text becomes subsection (1).(3) In that subsection—(a) after “conviction” insert “to imprisonment for a term not exceeding 51 weeks,”, and(b) for “not exceeding level 3 on the standard scale” substitute “or to both”.(4) After that subsection insert—“(2) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (1) to 51 weeks is to be read as a reference to 6 months.”(5) Section 30 of the Game Act 1831 (trespass in daytime in search of game etc) is amended in accordance with subsections (6) to (8).(6) The existing text becomes subsection (1).(7) In that subsection—(a) for the words from “conviction”, in the first place it occurs, to “seem meet”, in the second place it occurs, substitute “summary conviction, be liable to imprisonment for a term not exceeding 51 weeks, to a fine or to both”, and(b) for “each of the two offences” substitute “the offence”.(8) After that subsection insert—“(2) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (1) to 51 weeks is to be read as a reference to 6 months.”(9) In section 4A of the Game Laws (Amendment) Act 1960 (forfeiture of vehicles), in subsection (1), omit “as one of five or more persons liable under that section”.(10) The amendments made by this section have effect only in relation to offences committed on or after the day on which this section comes into force.”Member’s explanatory statement
This amendment increases the penalty for committing an offence under section 1 of the Night Poaching Act 1828 (taking or destroying game or rabbits by night or entering land for that purpose) or under section 30 of the Game Act 1831 (trespass in daytime in search of game etc).

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the right reverend Prelate the Bishop of St Albans for bringing these important matters to the attention of the House. I declare an interest here, as I am a member of the British Association for Shooting and Conservation, which is a member of the hare-coursing coalition.

In Committee, many noble Lords emphasised the need for early action to crack down further on illegal hare coursing. We have heard eloquent testimony to the cruelty involved and the harm and distress which this activity can cause to rural communities. As we have made clear, the Government are determined to take action. That is why we are taking an early opportunity to act by tabling these government amendments, which, I trust, following on from the debate in Committee, will be widely welcomed. They address most of the issues raised by the right reverend Prelate and, indeed, go further by introducing additional measures besides. It may be helpful to the House if I briefly outline them.

The purpose of our amendments is to broaden the circumstances in which the police can investigate and bring charges for activity related to hare coursing and to increase the powers of the courts for dealing with this activity on conviction. They do this by increasing the severity of the penalties for the relevant offences under the game Acts; introducing new criminal offences relating to trespassing on land with the intention of searching for or pursuing a hare with a dog; and giving the courts new powers to make orders on conviction in relation to the reimbursement of the costs of kennelling seized and detained dogs and the disqualification of offenders from owning or keeping a dog.

Let me set out the effect of the government amendments in a little more detail. First, Amendment 109G will increase the maximum penalties for committing an offence under Section 1 of the Night Poaching Act 1828 or under Section 30 of the Game Act 1831, and will remove the current difference in the maximum penalty that can apply, based on the number of people involved in committing the offence. These are offences most often used to prosecute hare-coursing-related activity, and it is therefore important that the courts should have available to them sentences appropriate to the severity of the harms which can be caused by such activity. In all cases, therefore, the maximum penalty will be increased to an unlimited fine and/or—for the first time—a custodial sentence of up to six months’ imprisonment.

Connected to this, we will also amend Section 4A of the Game Laws (Amendment) Act 1960 to give the court powers to order the forfeiture of a vehicle used in cases where fewer than five people are involved in committing an offence. That is important because of the essential role of vehicles in hare-coursing-related activity.

Turning now from existing to new law, Amendment 109H creates new offences relating to trespassing on land: specifically, trespass with the intention of using a dog to search for or to pursue a hare; facilitating or encouraging the use of a dog to search for or to pursue a hare; or enabling another person to observe the use of a dog to search for or to pursue a hare.

Amendment 109J provides for a further new offence of “being equipped” to commit one of these new trespass- related offences that I have just described. It will therefore be an offence for a person to have an article with them, when not at a dwelling, with the intention that it will be used in the course of, or in connection with, the commission by any person of the new trespass-related offence. These new offences will be punishable by an unlimited fine and/or up to six months’ imprisonment. The purpose of this new “being equipped” offence is to provide a basis for bringing charges in circumstances where someone possesses articles that are associated with hare-coursing and there is clear intention to engage in that activity but there is no element of trespass, because, for example, they are on the public highway. Together, these new offences are designed to increase the circumstances in which hare-coursing-related activity can be investigated and prosecuted. They have been developed in consultation with the police and the Crown Prosecution Service, and welcomed by them as a useful supplement to the legislation currently available.

I turn next to measures relating to the dogs used in hare-coursing. Amendments 109KA, 109L, 109M, 109N, 109PA and 109R strengthen the powers of the courts to make orders in relation to those convicted of certain hare-coursing-related offences. Dogs are a key element in hare-coursing-related activity, and these orders play an important part in addressing the availability of dogs for such activity.

First, Amendment 109KA provides for the court to order the recovery of kennelling costs incurred where a dog has been lawfully seized and detained in connection with certain hare-coursing-related offences. Kennelling costs can be very high. By providing for their reimbursement, we are seeking to reduce obstacles to the lawful seizure and detention of dogs used in connection with hare-coursing-related activity by the police. Such a recovery order can be made by the court whether or not it deals with the offender in any other way, such as through a fine or custodial sentence.

Secondly, Amendments 109L, 109M, 109N, 109PA and 109R provide new powers for the court relating to owning and keeping a dog. The court will be able to make a disqualification order on conviction, for such period of time as it thinks fit, preventing an offender owning and/or keeping a dog where they have been convicted of certain hare-coursing-related offences involving dogs. The amendments relating to dog disqualification orders contain provisions that aim to ensure their fair and effective operation. These include requirements and powers relating to the disposal of dogs, to termination of the orders and to safeguarding the rights of owners who are not the offender.

As many have noted, dogs are central to hare-coursing-related activity. The introduction of orders relating to dog disqualification therefore goes to the heart of the problem by making it possible to remove from convicted offenders access to a means of further offending. I hope that the right reverend Prelate will feel content that the government amendments substantially deliver his ambitions in relation to hare-coursing and that, on this basis, he and other noble Lords would be content to support the government amendments. I beg to move.

--- Later in debate ---

[Baroness Hayman of Ullock (Lab)]

My Lords, we welcome these amendments, although, considering that the Government’s Action Plan for Animal Welfare, published early last year, said that the Government would bring in legislation to crack down on the illegal practice of hare coursing, it was a little disappointing that this was not included in the Bill from the very start. We too offer our congratulations to the right reverend Prelate the Bishop of St Albans on his sterling work in bringing forward amendments and continuing to press the Government on this issue. Also, as he and others have done, we praise organisations such as the NFU and CLA for their campaigning over many years on this issue. Also, the police: alongside the other issues noble Lords have spoken about, can the Minister confirm that the police will have the resources they need, not just financial but with numbers of wildlife officers, which is a problem? But, as I say, we welcome these amendments; it is good that our brown hare populations and our rural communities can now be better protected from this really barbaric practice.

[Lord Sharpe of Epsom (Con)]

I thank all noble Lords for their warm words, and in particular the right reverend Prelate for his—they are much appreciated. I also join in the general congratulations from around the House on the operations and the work of police forces, in particular—although it is always invidious to single anybody out—Lincolnshire police, who have been leading on Operation Galileo. In answer to the specific question from the noble Baroness, Lady Hayman, I cannot comment on police staffing, but I am sure that rural police forces will warmly welcome these amendments and take the appropriate measures.

In answer to my noble friend Lord Caithness, the decision to prosecute is a matter for the Crown Prosecution Service. In line with the Code for Crown Prosecutors, prosecutors considering whether to prosecute for any offence must consider whether the evidence can be used and is reliable and must be satisfied that there is enough evidence to provide a realistic prospect of conviction.

In the circumstances my noble friend outlines, and depending on the available evidence, if the CPS is not satisfied that there is a realistic prospect of conviction for the offence of trespassing on land with the intention of using a dog to search for or pursue a hare, it could still make a decision to prosecute for an offence under Section 30 of the Game Act 1831 or Section 1 of the Night Poaching Act 1828. These are not specific to hares but apply to any game and, in most circumstances, rabbits. Through these amendments these offences would carry the same penalties as the new trespass offence.

My noble friend’s second question was about who will keep the dogs under the offences outlined in Amendment 109. Again, it will be the court to decide, in making an order under Amendment 109M, who should keep the dogs. We would expect this usually to be the police or an animal welfare organisation. They do work closely together on such matters. The welfare of the dogs is obviously paramount. The police have made it clear that it will be a priority to ensure that dogs remain secure and protected at all times.

I cannot, I am afraid, answer the specific question from the noble Baroness, Lady Bennett, about traps. I am sure she is not particularly surprised about that. But I do warmly welcome her contribution to this wildlife-related debate.

Amendment 109G agreed.

Moved by

[Lord Sharpe of Epsom]

109H: After Clause 55, insert the following new Clause—
“Trespass with intent to search for or to pursue hares with dogs etc
(1) A person commits an offence if they trespass on land with the intention of—(a) using a dog to search for or to pursue a hare,(b) facilitating or encouraging the use of a dog to search for or to pursue a hare, or (c) enabling another person to observe the use of a dog to search for or to pursue a hare.(2) It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the trespass mentioned in that subsection.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.(4) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (3) to 51 weeks is to be read as a reference to 6 months.”Member’s explanatory statement
This amendment creates a new offence of trespassing on land with the intention of using a dog to search for or to pursue a hare or with the intention of facilitating, encouraging or enabling another person to observe the use of a dog to search for or to pursue a hare.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

109KA: After Clause 55, insert the following new Clause—
“Recovery order on conviction for certain offences involving dogs
(1) This section applies where—(a) a person is convicted of an offence within subsection (5) which was committed on or after the day on which this section comes into force,(b) a dog was used in or was present at the commission of the offence, and(c) the dog was lawfully seized and detained in connection with the offence.(2) The court may make an order (a “recovery order”) requiring the offender to pay all the expenses incurred by reason of the dog’s seizure and detention.(3) Any sum required to be paid under subsection (2) is to be treated for the purposes of enforcement as if it were a fine imposed on conviction.(4) Where a recovery order is available for an offence, the court may make such an order whether or not it deals with the offender in any other way for the offence.(5) The following offences are within this subsection—(a) an offence under section 1 of the Night Poaching Act 1828 (taking or destroying game or rabbits by night or entering land for that purpose);(b) an offence under section 30 of the Game Act 1831 (trespass in daytime in search of game etc);(c) an offence under section (Trespass with intent to search for or to pursue hares with dogs etc) (trespass with intent to search for or to pursue hares with dogs etc);(d) an offence under section (Being equipped for searching for or pursuing hares with dogs etc) (being equipped for searching for or pursuing hares with dogs etc).”Member’s explanatory statement
This amendment provides for a court to order an offender to pay for the costs of seizing and detaining a dog where the dog has been lawfully seized and detained in connection with certain offences involving dogs.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

109PA: After Clause 55, insert the following new Clause—
“Section (Seizure and disposal of dogs in connection with disqualification order): supplementary
(1) The court by which an order under section (Seizure and disposal of dogs in connection with disqualification order) is made may—(a) appoint a person to carry out, or arrange for the carrying out of, the order;(b) require any person who has possession of a dog to which the order applies to deliver it up to enable the order to be carried out;(c) give directions with respect to the carrying out of the order;(d) confer additional powers (including power to enter premises where a dog to which the order applies is being kept) for the purpose of, or in connection with, the carrying out of the order;(e) order the person who committed the offence in relation to which the order was made, or another person, to reimburse the expenses of carrying out the order.(2) A person who fails to comply with a requirement imposed under subsection (1)(b) commits an offence.(3) A person guilty of an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.(4) Directions under subsection (1)(c) may—(a) specify the manner in which a dog is to be disposed of, or(b) delegate the decision about the manner in which a dog is to be disposed of to a person appointed under subsection (1)(a).(5) In determining how to exercise its powers under section (Seizure and disposal of dogs in connection with disqualification order) and this section the court is to have regard (amongst other things) to—(a) the desirability of protecting the value of any dog to which the order under section (Seizure and disposal of dogs in connection with disqualification order) applies, and(b) the desirability of avoiding increasing any expenses which a person may be ordered to reimburse.(6) In determining how to exercise a power delegated under subsection (4)(b), a person is to have regard, amongst other things, to the things mentioned in subsection (5)(a) and (b).(7) If the owner of a dog ordered to be disposed of under section (Seizure and disposal of dogs in connection with disqualification order) is subject to a liability by virtue of subsection (1)(e), any amount to which the owner is entitled as a result of sale of the dog may be reduced by an amount equal to that liability.(8) Any sum ordered to be paid under subsection (1)(e) is to be treated for the purposes of enforcement as if it were a fine imposed on conviction.(9) In this section references to disposing of a dog do not include—(a) destroying it, or(b) disposing of it for the purposes of vivisection.”Member’s explanatory statement
This amendment contains supplementary provisions in relation to a court making an order under the new clause in the name of Baroness Williams of Trafford to be inserted after Clause 55 and relating to seizure and disposal of dogs in connection with disqualification orders.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

109R: After Clause 55, insert the following new Clause—
“Disqualification orders: appeals
(1) Nothing may be done under an order under section (Disqualification order on conviction for certain offences involving dogs) or (Seizure and disposal of dogs in connection with disqualification order) with respect to a dog unless—(a) the period for giving notice of appeal against the order has expired,(b) the period for giving notice of appeal against the conviction on which the order was made has expired, and(c) if the order or conviction is the subject of an appeal, the appeal has been determined or withdrawn.(2) Where the effect of an order is suspended under subsection (1)—(a) no requirement imposed or directions given in connection with the order have effect, but(b) the court may give directions about how any dog to which the order applies is to be dealt with during the suspension.(3) Directions under subsection (2)(b) may, in particular—(a) authorise the dog to be taken into possession;(b) authorise the dog to be cared for either on the premises where it was being kept when it was taken into possession or at some other place;(c) appoint a person to carry out, or arrange for the carrying out of, the directions;(d) require any person who has possession of the dog to deliver it up for the purposes of the directions;(e) confer additional powers (including power to enter premises where the dog is being kept) for the purpose of, or in connection with, the carrying out of the directions;(f) provide for the recovery of any expenses in relation to the removal or care of the dog which are incurred in carrying out the directions.(4) A person who fails to comply with a requirement imposed under subsection (3)(d) commits an offence.(5) A person guilty an offence under subsection (4) is liable on summary conviction to a fine not exceeding level 3 on the standard scale. (6) Any sum directed to be paid under subsection (3)(f) is to be treated for the purposes of enforcement as if it were a fine imposed on conviction.”Member’s explanatory statement
This amendment makes provision in connection with appeals in relation to orders made under the new clauses in the name of Baroness Williams of Trafford to be inserted after Clause 55 and relating to disqualification orders on conviction for certain offences involving dogs and seizure and disposal of dogs in connection with disqualification orders.

--- Later in debate ---

Amendment 133 not moved.

[Lord Sharpe of Epsom (Con)]

My Lords, I beg to move that further consideration on Report be now adjourned until 9.20 pm.

[Noble Lords]

Why?

Police, Crime, Sentencing and Courts Bill

Lord Sharpe of Epsom Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 10th January 2022 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

96A: After Clause 164, insert the following new Clause—
“CHAPTER 4FOOTBALL BANNING ORDERSFootball banning orders: relevant offences
(1) The Football Spectators Act 1989 is amended as follows.(2) Schedule 1 (football banning orders: relevant offences) is amended in accordance with subsections (3) to (7).(3) In paragraph 1(c) (certain offences under the Public Order Act 1986 committed at premises)—(a) after “any offence under section” insert “4,”, and(b) before “harassment” insert “fear or provocation of violence, or”.(4) In paragraph 1(k) (certain offences under the Public Order Act 1986 committed on a journey to or from a football match)—(a) after “any offence under section” insert “4,”, and(b) before “harassment” insert “fear or provocation of violence, or”. (5) In paragraph 1(q) (certain offences under the Public Order Act 1986 which the court declares to be related to a football match)—(a) after “any offence under section” insert “4,”,(b) before “harassment” insert “fear or provocation of violence, or”, and(c) omit “or any provision of Part 3 or 3A of that Act (hatred by reference to race etc)”.(6) In paragraph 1, after paragraph (u) insert—“(v) any offence under any provision of Part 3 or 3A of the Public Order Act 1986 (hatred by reference to race etc)—(i) which does not fall within paragraph (c) or (k), and(ii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation,(w) any offence under section 31 of the Crime and Disorder Act 1998 (racially or religiously aggravated public order offences) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation,(x) any offence under section 1 of the Malicious Communications Act 1988 (offence of sending letter, electronic communication or article with intent to cause distress or anxiety)—(i) which does not fall within paragraph (d), (e), (m), (n), (r) or (s),(ii) as respects which the court has stated that the offence is aggravated by hostility of any of the types mentioned in section 66(1) of the Sentencing Code (racial hostility etc), and(iii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation,(y) any offence under section 127(1) of the Communications Act 2003 (improper use of public telecommunications network)—(i) which does not fall within paragraph (d), (e), (m), (n), (r) or (s),(ii) as respects which the court has stated that the offence is aggravated by hostility of any of the types mentioned in section 66(1) of the Sentencing Code (racial hostility etc), and(iii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation.”(7) In paragraph 4—(a) the words from “In this Schedule” to “Part II of this Act.” become sub-paragraph (1), (b) after sub-paragraph (1) insert—“(1A) In this Schedule “football organisation” means an organisation which is a regulated football organisation for the purposes of Part 2 of this Act.”, and(c) after sub-paragraph (2) insert—“(3) The provision that may be made by an order made by the Secretary of State for the purposes of this Schedule includes provision that a person has a prescribed connection with a football organisation where— (a) the person has had a connection of a prescribed kind with a football organisation in the past, or(b) the person will or may have a connection of a prescribed kind with a football organisation in the future.”(8) In section 14 (main definitions), after subsection (2) insert—“(2A) “Regulated football organisation” means an organisation (whether in the United Kingdom or elsewhere) which—(a) relates to association football, and(b) is a prescribed organisation or an organisation of a prescribed description.”(9) Section 23 (further provision about, and appeals against, declarations of relevance) is amended in accordance with subsections (10) and (11).(10) In subsection (1), for the words from “related to football matches” to the end of the subsection substitute “—(a) related to football matches,(b) related to a particular football match or to particular football matches,(c) related to a football organisation, or(d) related to a person whom the defendant knew or believed to have a prescribed connection with a football organisation,as the case may be.”(11) In subsection (5), for the words from “related to football matches” to the end of the subsection substitute “—(a) related to football matches,(b) related to one or more particular football matches,(c) related to a football organisation, or(d) related to a person whom the defendant knew or believed to have a prescribed connection with a football organisation.”(12) This section does not apply in relation to an offence committed before the day appointed by regulations under section 178(1) for its coming into force (so far as it has not previously been commenced by section 178(4)(ta)).”Member’s explanatory statement
This amendment modifies the list of relevant offences in Schedule 1 to the Football Spectators Act 1989 which trigger the making of a football banning order to include, in particular, certain offences relating to race or religion and certain online hate offences.

[Lord Sharpe of Epsom (Con)]

My Lords, I beg to move the amendment in the name of my noble friend Lady Williams of Trafford.

These amendments give effect to a commitment made by the Prime Minister in the immediate aftermath of the final of Euro 2020. The whole of England was disappointed by the outcome, and that is understandable. What was not excusable or acceptable was the racist abuse directed at certain England players. Your Lordships will also be aware of the ubiquitous slow drip of hateful online abuse many high-profile footballers are subjected to. In the light of that behaviour, the Prime Minister announced that we would legislate to extend the football banning order regime to cover online abuse, and that is the purpose of these amendments. In Committee, the noble Lord, Lord Bassam, tabled an amendment directed to the same end. In response, I said that the Government would look to legislate as soon as possible, and that is what we are doing. I hope the noble Lord will feel that his objectives have now been met and will welcome these amendments.

Football banning orders were first introduced in 1989. The intention of these new clauses is to amend the operation of the football banning order regime to enable a court to impose a football banning order against persons convicted of online hate offences connected to football. The amendments will also enable a court to impose a football banning order for other race, religious or sexual orientation hate offences against persons with a prescribed connection to a football organisation where the incident would not fall under the existing coverage. This will prevent such offenders propagating their criminal, hateful views at football matches. I sincerely hope that this measure will also deter others from engaging in similar behaviour that is so harmful to the victims and our national game.

Amendment 96B will amend the Football Spectators Act 1989 to enable the list of relevant offences in Schedule 1 to that Act to be amended by regulations subject to the affirmative procedure. A person can receive a football banning order following conviction for a relevant offence. There is no intention to use the new regulation-making power to add to the schedule offences that do not involve violence, disorderly behaviour or harm to others, or a risk or threat of such, nor to add offences which are not football-related. Rather, this will enable the Secretary of State to ensure that the list of relevant offences for the purposes of football banning order proceedings can be kept up to date and relevant in the event of amendment to the Acts listed in the schedule or developing trends of harm or disorder relating to football, such as online hate offences.

Finally, Amendment 96C will amend the consideration that a court undertakes in deciding whether to impose a football banning order against a person convicted of a football-related offence under the 1989 Act. It will remove the requirement that the convicted person must pose an identifiable risk of violence or disorder at or in connection with football matches. I must again reference the vile online racist abuse of England players after the Euro 2020 final. Under the current test, courts may not be convinced that offenders convicted of racist online offences pose an identifiable risk of violence and disorder at matches. However, I believe that it is imperative to ensure that such offenders can be prevented from spreading their hateful words at football matches. Courts will retain their powers of discretion if there are particular circumstances relating to the offence or the offender which would make it unjust to impose a football banning order, with a requirement that they state in open court their reasons for not doing so.

We can all agree that there is no place for racist abuse in football—or more widely—and it is right that we should send a strong signal that those convicted of racist abuse or other unconscionable hatred connected to football should not be allowed to attend football matches to spread their poisonous prejudices. This is a sensible and much-needed change to the legislation governing football and I ask your Lordships to endorse it.

[Lord Paddick (LD)]

My Lords, can the Minister confirm the impact these amendments will have on homophobic abuse of soccer players? I think he mentioned it once. Tom Daley on Channel 4’s “Alternative Christmas Message” talked about the fact that no professional footballers in the UK have publicly said they are gay: fear of public reaction is probably a big part of the reason why. In fact, globally, it is my understanding that only one professional soccer player has come out as gay, and he plays in Australia.

People have shied away from a hierarchy of diversity, but I have always believed that racism is a bigger problem than homophobia: some people can hide their sexuality, but few people of colour can hide their race. Having said that, people can hide their religious beliefs; there are many white Muslims, for example. These amendments cover religion but not, at least immediately obviously, sexuality. Racism is still a huge problem, and these amendments are welcome, but where is the clear and unambiguous message in these amendments that homophobic abuse directed at football players is just as unacceptable as racism and Islamophobia? It is not clear to me.

Even the Government’s explanatory statement for these amendments refers to

“certain offences relating to race or religion and certain online hate offences.”

If I am having to search the many and various pieces of legislation mentioned in these amendments to satisfy myself that people like me are covered, then these amendments do not send a clear and unambiguous message that homophobic abuse is as unacceptable as racism and Islamophobia. The Law Commission in its recent report on hate crime identifies the need to place sexual and gender diversity hatred on the same footing as race hatred, so what assurances can the Minister give in this case? I do not want perfection to be the enemy of the good, and there will still be an opportunity to provide clarification at Third Reading, but I look forward to the Minister’s response.

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, I agree with the noble Lord, Lord Paddick, that it is very important to have clarity that homophobic abuse is here covered. For my part, I understand—I ask the Minister to confirm whether he agrees—that the substance of these amendments does cover homophobic abuse, in particular proposed new subsection (6) of the new clause, which refers to Part 3A of the Public Order Act 1986, which, as I understand it, specifically covers homophobic abuse, as does proposed new subsection (6)(x)(ii), which refers to Section 66(1) of the Sentencing Code, which, again, I understand covers homophobic hostility as well as racial hostility. But clarity is absolutely essential here.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords for their contributions to this debate. In answer to the noble Lords, Lord Paddick, Lord Bassam and Lord Pannick, I can happily clarify that this includes homophobic and misogynistic hate speech, and all other forms of hate speech. The noble Lord, Lord Pannick, is absolutely right: it is under Section 3A of the Public Order Act 1986. I am afraid I do not have the Sentencing Code so I will have to look into that for him.

The core amendments apply to online hate speech where the court has found on sentencing that the offence was aggravated by racial or religious hostility, or hostility related to disability, sexual orientation or transgender identity. This reflects the five types of hate crime recognised by the law, which I think is the Sentencing Code.

I agree with the point made by the noble Lord, Lord Bassam, about other sports. I have heard the DCMS Minister answer questions on this, and there will of course be other opportunities in other Bills coming up, which I suspect will also have something to say on the subject, but I will take it back to both departments.

[Lord Paddick (LD)]

Before the Minister sits down, could I clarify what he just said? It threw another confusion at me. He said it covers misogynistic hate speech. I am not sure misogyny is a hate crime. Therefore, I am not sure the Minister is correct on that point. Perhaps he could clarify.

[Lord Sharpe of Epsom (Con)]

I am afraid I will have to write to him to clarify that point.

[Lord Bassam of Brighton (Lab)]

My Lords, I am grateful to the Minister for his comments and his agreement to take that away. For our part, we would very much welcome a discussion on that with him and his officials, if that is at all possible. We are some way off from the Third Reading, and, clearly, we would be in a position to bring forward an amendment if that would help.

It would be for the good if we could have some cross-party agreement on this, because it is an issue on which we can have a shared view. That shared view adds extra emphasis and import to the progress that we make. We would very much welcome the Minister facilitating that discussion, and obviously we would be delighted if the Government were to concede and bring forward amendments which cover all other sports as well.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

96B: After Clause 164, insert the following new Clause—
“Football banning orders: power to amend list of relevant offences
(1) In section 14 of the Football Spectators Act 1989 (main definitions), after subsection (8) insert—“(9) The Secretary of State may by regulations amend paragraph 1 of Schedule 1 so as to add, modify or remove a reference to an offence or a description of offence.(10) Regulations under subsection (9) may make consequential amendments to this Act.(11) A statutory instrument containing regulations under subsection (9) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”(2) Section 22A of that Act (other interpretation, etc) is amended in accordance with subsections (3) and (4).(3) In subsection (3), after “order” insert “or regulations”.(4) After subsection (3) insert—“(3A) An order or regulations under this Part—(a) may make different provision for different purposes;(b) may make consequential, supplementary, incidental, transitional, transitory or saving provision.””Member’s explanatory statement
This amendment amends the Football Spectators Act 1989 to enable the list of relevant offences in Schedule 1 to that Act to be amended by regulations.

Nationality and Borders Bill

Lord Sharpe of Epsom Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Lord Marlesford (Con)]

My Lords, I support the purpose of this Bill, which is important. It relates to three key responsibilities of any Government: the protection and defence of the nation, the maintenance and enhancement of the standard of living of their citizens, and their national obligation to world peace and prosperity.

First, I turn to national security. The greatest terrorist threat to the UK remains Islamist jihadists. In the 20 years since 9/11, those who keep a tally suggest that there have been more than 40,000 fatal attacks worldwide. The Times of 11 September 2021 concluded that

“America’s wars helped to radicalise a generation of Islamists, whose poisonous ideology has spread across the Middle East to Africa, from where new terrorist franchises plot fresh attacks on the West.”

The Economist of 20 November reported on how

“jihadists aligned to al-Qaeda and Islamic State”

in the Sahel

“have taken aim at Western countries, bombing their embassies and kidnapping or killing their citizens.”

It concluded:

“If the jihadists are given havens and time, they will surely launch attacks on European or American soil, too.”


The UK has already given haven to jihadists who have been involved in several attacks, the most recent being the Liverpool bomber, who went as far as masking himself as a Christian in an attempt to obtain asylum.

So, however much we may wish to, and should, give hospitality to many of those who seek to come here—whether as refugees, asylum seekers or, indeed, migrants —we must be far more vigilant in the screening process. The unmet challenge of screening 28,000 people who arrived in England by small boats during 2021 must not recur in 2022.

I was puzzled when my noble friend Lady Williams— I thank her for that useful letter today—said in a Written Answer on 16 December that identity checks, including fingerprints and other biometrics, taken from migrants on arrival cannot be compared against the EU system which the UK has access to because

“use of those systems is only permitted for law enforcement, not immigration purposes.”

I can think of few more obvious law enforcement purposes than the detection of possible terrorists. I hope my noble friend will be able to assure us that the Bill will be changed to overrule that absurdity.

Secondly, on the responsibility of maintaining and enhancing our domestic living standards, there are now, as we have heard, several million individuals who need or would like to live in the UK; the great majority are economic migrants. The hard fact is that incentives to migrate will diminish only when the standard of living in the country they want to reach is no longer sufficiently greater than that from which they seek to depart to make the costs and risks of the journey worth while.

Three crucial components in quality of life are healthcare, education and housing. In the case of the UK, as everyone is all too aware, spare capacity in both medical and educational services hardly exists, and there are long lines of people waiting to buy or rent houses. The political constraint on any moral imperative to share these scarce resources with migrants is the consequent reduction in the standards available in the UK, and it is set by what the population—which in a democracy means the electorate—will accept. That is why most of our help must continue to be made through international aid programmes, where there is no direct dilution of UK living standards.

The third responsibility is to have an ordered travel system to replace the present chaos. We are already making special provision for economic migrants who can fill crucial shortages in the supply of certain skills; for example, in the medical and care sectors. Would it be possible to open these opportunities more widely? In my view, there is nothing wrong with discriminating in favour of particular groups, such as those suffering religious persecution in their own land. I am thinking of Christians in Afghanistan, Pakistan and—

[Lord Sharpe of Epsom (Con)]

My Lords, may I remind the noble Lord that there is a Back-Bench speaking limit of five minutes? Thank you.

[Lord Marlesford (Con)]

I will conclude—

--- Later in debate ---

[Lord Dholakia (LD)]

My Lords, I value the valuable contribution made by the noble Lord, Lord Blunkett, particularly his time as Home Secretary in a previous Government.

Between 1949 and to date, nationality, immigration and asylum laws in the United Kingdom have come full circle, from complete freedom for all British subjects to enter and live in this country to a strict limitation of that right to British citizens and a small number of people with a residual claim arising from past commitments. I was privileged to enter Britain in 1956 and have witnessed all the changes that have taken place since then. The questions I have asked each time are: are all these changes necessary, and are they governed by political expediency or the reality of the situation we face?

Despite the nature and effect of legislation, the circumstances surrounding it remain contentious. One main reason for this is that despite a series of reports from the House of Commons Select Committees and other authoritative sources, it is still not widely known that large-scale immigration to the United Kingdom is a thing of the past. Immigration has been a prominent issue during the past few general elections. We have seen prominent politicians dealing positively with it in areas where migrants have settled, only to find the same politicians adopting a different stance in areas of predominantly white settlement. Such double talk does more damage to good race relations in the country.

A little while ago, writing in the Guardian, Jonathan Freedland noted

“a kind of drumbeat of hysteria in which both politicians and media have turned again and again on a … small minority, first prodding them, then pounding them as if they represented the single biggest problem in national life.”

This is a difficult time to have a calm and reasoned discussion about migrants, which political leaders claim to want.

Let us look at the figures that were bandied about during the Brexit referendum— stirring up emotions at this crucial time was a good way to make political gains. We need to examine changing patterns within all our communities. We need to take into account post-war migration and the process of globalisation which crosses the geographical boundaries of all nations. Where is the leadership pronouncement on such issues? Where do we speak up for our NHS, our transport system or the contributions of minorities to our economy? Instead, we continue to harp on about the numbers in this complex game. We hear about the harshness surrounding migrants entering the country through the English Channel. We blame France for its inability to control the flow of migrants to UK.

Every piece of legislation since 1962 indicates that there is no such thing as total protection of our borders. We must find a different way for migrants to apply for asylum. The present method of returning them to French shores does not work. It is time for a rethink.

The rot set in in the 1950s and has continued ever since. As early as then, the Government set up an interdepartmental committee to consider legislative and administrative methods to deal with migrants. This continues even to the present time within the Home Office. So preoccupied were Ministers in the 1950s with the numbers entering the UK that the welfare and integration of newcomers was not even discussed. In fact, the key recommendation was:

“Any solution depending on apparent or concealed test would be so invidious as to be impossible for adoption.”


What did they recommend? They continued:

“Nevertheless, the use of any powers taken to restrict the free entry of British subjects to this country would, as a general rule, be more or less confined to coloured persons.


Each piece of legislation since 1962 will confirm this.

Almost 70 years ago, the steamship “Empire Windrush” docked at Tilbury, carrying with it the hopes and dreams of hundreds of young black men and women from the Caribbean. Nothing like this had happened before. Ever since then, if you look at the independence of Commonwealth countries and the end of the master and servant relationship that Britain had enjoyed, a new way of thinking of ourselves had to evolve and is still in process. The current debate is not new: there was little consideration of a genuine migration policy and the settlement of new arrivals.

The present legislation is described as “Priti hostile” in many quarters. Following the scathing criticism by Wendy Williams, we still have not resolved the Windrush issue. We are now proceeding with harsher issues which will have substantial impact on those who wish to settle in this country.

Following the correspondence with my noble friend Lady Hamwee, I have studied the response from Victoria Atkins MP on Afghan refugees. While I welcome her comments, I am still concerned about the way we left Afghanistan. Over 400 lives were lost—

[Lord Sharpe of Epsom (Con)]

My Lords, I remind everybody again that it is a five-minute Back-Bench speaking limit.

[Lord Dholakia (LD)]

We are now working to deprive people of their British citizenship, thus creating a community of refugees with nowhere to go. We are paying scant regard to the 1951 convention on refugees and we are involved in not giving due regard to the rights of children. Overall, we are succumbing to political expediency rather than having a genuine desire to help.

--- Later in debate ---

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I would like to reinforce what others have said about the Bill being an affront to human rights and civil liberties. It is an anti-refugee Bill and an anti-asylum Bill and whatever the noble Lord, Lord Morrow, said about dismissing the concern for common humanity, it is a display of a lack of respect for our common humanity. What terrible detriment to the humanity of British people comes about from providing shelter to those fleeing persecution? What possible terrible detriment to the British people happened as a result of offering shelter to those who were fleeing Nazism and the concentration camps? The very idea of pushing boats back to the French coast is totally contrary to international and maritime law, as we have heard—but we do not even have to talk about its unlawfulness; it is about the morality of it.

Similarly, when we talk about offshoring and that proposal, it is not just unworkable, as the noble Lord, Lord Kirkhope, was saying; it, too, is a dereliction of our national duties under international law. How are people going to access legal advice of a proper standard that we would be able to rely on confidently? As others have said, the Bill creates a two-tier system for asylum seekers. To criminalise those who come to the UK because they have not secured advance permission is unconscionable, especially when there are no safe routes for most people to get here. People who are fleeing are coming in desperation; they are in fear of their lives and they take the most incredible risks to find sanctuary. When people speak, as the noble Lord, Lord Lilley, did, about the cost of doing so, it is often about whole communities putting together money in order to make it possible for that person to escape likely death.

The Bill does nothing to create legitimate ways of getting those who are at grievous risk to safety. It opens up, in fact, greater possibilities for traffickers and those who exploit those who are at risk. In September and October of this last year, along with a little team of lawyers from the International Bar Association’s Human Rights Institute, which I direct, we evacuated 103 women—Afghan judges, lawyers, journalists and others—out of Afghanistan with their families. They were desperate because they were on Taliban kill lists and we have had to struggle desperately to find final destinations for them around the world. We are still waiting for the promised resettlement scheme here for Afghanis; it still has not come into existence.

The Bill in its current form would have prevented my Afghan women coming to the UK. My Afghan judges are evacuated in Greece, Greece having agreed to be a lily pad, a temporary landing place, but they would be group 2 refugees, which means that they would have to stay in Greece because, of course, it is a safe country to all intents and purposes. Desperate women are also in communication with me still who escaped over the border into Pakistan, Iran or other neighbouring countries. They, too, would be group 2 refugees, even if they have a relative who lives in this country who is willing to receive them. Of course, Clause 15 makes it inadmissible to claim a special connection even if you have relatives in this country.

The Minister is right that there is a crisis in the immigration system, but this Bill is not going to solve it. Around half of immigration appeals against Home Office decisions are successful in the First-tier Tribunal. One-third of judicial reviews against the Home Office are settled or decided in the claimant’s favour. That tells you something loudly and clearly about the quality of the original decision-making in the Home Office—it is abysmal. The starting position is to say no when people apply to enter this country. So, in asking for ideas of how to improve the system, if you want to run a well-run system there has to be better early decision-making, access to proper legal advice and properly run courts and tribunals. But, instead of strengthening early decision-making, the Home Secretary is weakening appeals, creating fast-track processes that are unlawful and increasing her own arbitrary powers, taking to herself the power to accelerate hearings at such speed that there are likely to be illegal outcomes.

There is a whole set of clauses that I could refer to which deal with putting at speed decision-making without the proper legal advice that would make decisions safe. There is a whole set of proposals that we should be concerned about. I want to reinforce what was said by the noble Lord, Lord McColl, about how people who have been trafficked and have come here are modern-day slaves, yet the discretionary leave to remain system is not working for them. In the past five years, only 7% of those of 6,000 survivors have been given discretionary leave. I hope that this Bill will accept amendments to change that, because it has got worse under the current Home Secretary. Likewise, I hope that Damian Green’s amendment in the other place to accept more of the young from Hong Kong might be considered.

Efficiency cannot be bought at the price—

[Lord Sharpe of Epsom (Con)]

My Lords, I am very sorry, but there is a five-minute Back-Bench speaking limit. Everybody else is managing to keep more or less to it.

[Baroness Kennedy of The Shaws (Lab)]

I hear the noble Lord. Efficiency cannot be bought at the price of reduced fairness. My advice to government is: improve the quality and accuracy of first-instance decision-making and bring back proper legal aid in this area of law.

--- Later in debate ---

[Baroness Uddin (Non-Afl)]

My Lords, it is a privilege to follow the noble Lord, Lord Ramsbotham, who always makes an outstanding and unique contribution to this House.

A joint statement by faith and civil society groups calls the Bill “sinister” and “un-British”—counterintuitive to our long-held tradition of welcome. The Bill is deemed pernicious in its intent, with troubling aspects resulting in inevitable breaches of international laws and conventions, including proposed offshore detention facilities, the revoking of citizenship without notice or appeal, and, appallingly, border officials being authorised to push back families to their inevitable consequential deaths.

The Bill stands accused of racism and a draconian misuse of power, supposedly for the public good. I understand the fear expressed in an infinite number of emails about many aspects of the Bill, particularly Clause 9, now exponentially fuelled by the explanations and questions raised by the noble Lord, Lord Anderson. Clause 9 contradicts everything decent about adherence to international human rights law and will empower the Home Secretary and the Government to deprive an individual of citizenship without having to give notice if it is not “practicable” or in the “interests of national security” or the “public interest”, and without an opportunity for the individual to defend themselves, contradicting our basic right to stand innocent until proven guilty. With this Bill, the Government are saying to British citizens: “You are guilty, with no way of proving innocence.” This concern is exacerbated by what we know about the disgraceful treatment of British citizens of the Windrush generation, many of whom perished and suffered enormously without being able to prove their citizenship.

The Government refer to ambiguous terms of “national security” and “the public interest” to strengthen the discretionary powers of the Home Secretary and others in the Government and to justify actions that they are all too aware will breach international laws and conventions. We cannot allow the Government and the Home Secretary carte blanche with added discretionary powers, given what we know about the danger of discretion in handling protests, stop and search, and so on. Combined with the police Bill, the widening of discretionary and absolute powers by citing national security makes the Bill one of the most regressive, dangerous and dehumanising pieces of legislation proposed by this Government. Consequently, the Bill will directly affect two in every five people from a non-white ethnic minority background.

Leading law experts and women’s NGOs are equally vociferous in their concerns that the Bill undermines the Government’s own commitment to ending violence against women and girls, poses additional threats for victims and survivors with insecure immigration status, and shows a glaring lack of genuine insight into maintaining proper oversight of how legislation and policies affect all victims and survivors, regardless of their immigration status. Organisations including SafeLives, Women for Women Refugees and Rights of Women are fearful of the consequences for abused women and girls who may be held in detention centres without adequate information or access to legal services and safeguards.

We have debated, with wounds, the effect of Uighur detention centres, yet in the same breath have no qualms about proposing offshore centres that we decry as barbaric practice elsewhere, leaving aside the unreasonable expectation of extremely vulnerable people navigating an alien system to prove their case. Many may indeed languish in uncertainty as a consequence of reporting sexual violence, exploitation and abuse.

Will the Minister assure the House and external women’s organisations that the proposal for a firewall between the police and immigration services will be given serious consideration, given what she knows already about the danger of Immigration Enforcement’s migrant victims protocol for asylum claimants? Does she agree that this plainly two-tier system, albeit dependent on entry point, is inherently discriminatory and places particularly women and girls fleeing conflict zones in greater danger?

The Government’s claim of increasing

“the fairness of the system to better protect and support those in need of asylum”

is as utterly flawed as the ambition to deter illegal entry into the United Kingdom is fanciful. Have the Government defined what set of criteria constitute “reasonably practical” when deciding not to give notice of deprivation of nationality, given that a deliberate act to make a citizen stateless is prohibited under Article 15 of the Universal Declaration of Human Rights?

We are witness to the genocidal brutalisation of the stateless Rohingya people of Myanmar. Have we learned nothing? Has our conscience been so lost as to emulate Myanmar’s arbitrary policy on citizenship? The effect of deterrence by any means necessary will allow rescue workers to “push back” families to their deaths. Watching children, women and men die in our waters and calling it a Nationality and Borders Bill is an affront to the rule of law and humanity, which we constantly claim in abundance in this Chamber.

Under the Bill, border security staff are being asked to breach our commitments to the refugee convention and, critically, duty of care law. Are we seriously asking our officials—

[Lord Sharpe of Epsom (Con)]

Me again.

[Baroness Uddin (Non-Afl)]

My Lords, I am nearly finished. Are we seriously asking our officials to watch as people die, which may be considered manslaughter by gross negligence in our English courtrooms?

Over generations the UK has contributed to destabilising many nations, most recently Afghanistan, and the same can be said for Iraq and countless African countries. What result did we expect when the UK and its allies dropped an average of 46 bombs a day—

[Lord Sharpe of Epsom (Con)]

My Lords, the noble Baroness did say she was nearly finished and she nearly is not.

[Baroness Uddin (Non-Afl)]

My Lords, in closing—

Police, Crime, Sentencing and Courts Bill

Lord Sharpe of Epsom Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I will comment briefly on the points raised by the noble Lord, Lord Ponsonby. This is an evolving situation. The key point is that the noble Baroness has raised the issue of a particular type of pedicab, but there is a crossover with the cargo bikes that are increasingly being used and are increasingly welcome for the delivery of goods, parcels and so on. They are hugely welcome on our streets. It is really important that any legislation deals with those two issues and separates them out, although the vehicles are very similar. To my mind, that underlines the point I was making earlier about my amendment and that of the noble Lord, Lord Berkeley: we need a complete and comprehensive review of the emerging and changing picture of traffic on our streets.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank again my noble friend Lady Stowell for her work on this issue. I know she feels passionately about the regulation of pedicabs, particularly in the capital. I also thank all noble Lord who took part in this brief debate.

In England outside of London, as my noble friend is aware, pedicabs can be regulated as hackney carriages—that is, as a taxi—so the local licensing authority can require the driver and the vehicle to be licensed. In London, which has separate taxi and private hire vehicle legislation, this is not the case, as my noble friend pointed out. This means that there are not many powers for Transport for London to regulate pedicabs.

The Government agree that there needs to be greater regulation of pedicabs in London. That is why they are fulsomely supporting the Private Member’s Bill being brought forward by Nickie Aiken MP in the other place. I know my noble friend has also been a strong supporter of that Private Member’s Bill. The Government also strongly support that Bill as it would enable Transport for London to put in place a cohesive regulatory framework for the licensing of pedicabs in London. I share my noble friend’s disappointment that it has yet to pass its Second Reading, but, as she noted, that has been rescheduled for 21 January.

Should that Private Member’s Bill be unsuccessful, the Government remain committed to bringing forward the necessary legislation when parliamentary time allows. I assure noble Lords that we will take this commitment seriously. We explored whether the provisions of the Private Member’s Bill could be incorporated into this Bill, but regrettably, as they focus on regulation and licensing, they fall outside its scope.

Once again, I praise my noble friend’s commitment to resolving this issue, but although I note the spirit with which her amendments have been proposed, it is the Government’s view that amendments are not the right method for making these changes. The introduction of a licensing regime for pedicabs, as the Private Member’s Bill would introduce, is the appropriate way forward for this matter. The Government do not believe that a partial way forward would be an appropriate or effective way to deal with this.

On the subjects raised by the noble Lord, Lord Berkeley, and the noble Baroness, Lady Randerson, to go back to the previous group, my noble friend the Minister outlined the call for evidence. I suggest that that would be the appropriate place to raise those points, because they are very good ones. This is probably not the right time to get involved in a debate about what is and is not a tandem, however.

I hope my noble friend is somewhat reassured that the Government share her view and commitment on this. Although I cannot give her the categorical assurance she seeks, I hope she feels able to withdraw her amendment.

[Baroness Stowell of Beeston (Con)]

My Lords, I am very grateful to my noble friend the Minister for his and the Government’s ongoing support for resolving this matter, and particularly for the Private Member’s Bill, which remains live in the other place.

I note that my noble friend said that amending this legislation is not the right way to address this issue. That point is very much in response to most of the points raised by the noble Lord, Lord Berkeley. What I acknowledged in bringing forward these amendments is that there is a well-established regulatory body here in London standing ready to introduce a licensing and regulatory regime that would properly cover pedicabs in a way that would target them and not catch the other vehicles that would not be intended to be included in any kind of regime. The concerns he has would be addressed by the way we want to make sure this matter is dealt with.

The point is that it is possible in the rest of England and Wales for local authorities to license and regulate pedicabs as and when they arrive in cities or different towns, as my noble friend the Minister has already said. It is only in London where we have this legal gap. There is nothing at the moment—apart from any kind of specific laws that get broken—which would cover any unacceptable activity. But it is so unfair because we currently have operators on the street who can quite legally ply for trade and compete with black cabs on an uneven playing field, and in doing so, they rip off tourists and give our capital city a bad name. None the less, I am sure there are a lot of pedicab operators who would provide a fantastic service that would operate alongside black cabs, Uber and everything else if we were able to bring in a professional regime and, at the same time, prevent them operating in a way which would be unacceptable to residents and businesspeople in our capital city.

This issue needs to be addressed, so let us all keep rooting for this Private Member’s Bill. I would be happy to speak to the noble Lord about any specific points he wants to raise about that Bill, in the hope that it is going to come here.

Finally, if I can use the collective noun of “officialdom”, there comes a point when we have to recognise that it is not good enough if the only thing we ever do is legislate in a way which increases the burdens on people, but we never find the time to introduce laws that tackle those who have no intention of ever operating within the law. That is what we need to do. However, on that note, I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to the noble Lord, Lord Brooke, for again affording us the opportunity to debate the issue of drink-driving. I commend him for his long association with this particular subject; it well predates my time in this House. I know that, since the debate in Committee, he and other noble Lords have discussed this issue and other matters with the road safety Minister.

Let me again reassure the noble Lord—I fear I am at risk of repeating what I said in Committee—that the Government take road safety very seriously and believe that any form of drink-driving is unacceptable and a serious road safety issue. We are committed to tackling drink-driving and ensuring that those guilty of this offence are detected and appropriately punished. As I explained in Committee, our approach combines tough penalties and rigorous enforcement with our highly respected and effective THINK! campaigns. This approach reinforces the social unacceptability of drink-driving and reminds people of the serious consequences that drinking and driving can have on themselves and others.

Turning to Amendment 61, which seeks to change the prescribed limits, we remain to be persuaded that the proposed lowering of the limits would deliver the desired result. We believe that more work needs to be done to assess whether a reduction in the drink-drive limit would deliver the hoped-for benefits in improved road safety and a reduction in deaths and injuries on our roads. I think every noble Lord involved in this short debate has referenced Scotland. The evidence we have, following the change in the law in Scotland in 2014, does not suggest a material improvement in road safety in that jurisdiction, as the noble Lord, Lord Rosser, just noted.

Noble Lords will be aware of the findings from the studies by the University of Bath and the University of Glasgow that have also been referenced. The research by the University of Bath established that there has been no change across all types of accidents involving alcohol as a result of the introduction of a stricter drink-drive limit in Scotland. The independent evaluation by the University of Glasgow, published by the Lancet in December 2018, found that lowering the drink-drive limit was not associated with any reduction in total road traffic collision rates or serious and fatal road traffic collision rates, but that the change was associated with a small reduction in per capita alcohol consumption from on-trade alcohol sales.

I obviously cannot comment on enforcement. I have seen the statistics too, but I think the noble Baroness, Lady Randerson, is right: each percent represents lives saved, and we should be aware of that. Of course, the personal tragedies movingly mentioned by the noble Baroness, Lady Finlay, also bring this debate into sharp relief.

The Government believe that our approach to any proposals for changing the law in this or indeed any other area must be evidence based. As things stand, the evidence does not support the case for lowering the drink-drive limit, although we of course keep this matter under review. But until there is a weight of evidence demonstrating that material enhancements to road safety would result from a lowering of the limit, the Government do not believe that the case for Amendment 61 has been made.

Turning to Amendment 62, which seeks to introduce random breath testing, it is again unclear to the Government if this would deliver the desired result of making the roads safer. As I indicated in response to a similar amendment in Committee, more work needs to be done to see whether there is any benefit resulting from introducing random breath testing. We would also need to examine carefully the equalities and human rights implications of doing so—an issue which I know is of concern to a number of noble Lords. I also take the point that the noble Lord, Lord Brooke, made on deterrents, particularly with regard to recent announcements in other topical areas on this subject, and I will take those back.

Having said all of that, I am going to repeat what my noble friend Lady Williams said earlier. My ministerial colleagues in the Department for Transport are currently working on a call for evidence on parts of the Road Traffic Act. While details are still being worked up as to its scope, I am sure they are paying close attention to the points raised in this debate and others and will welcome suggestions on what issues could be tackled. Once the call for evidence is concluded, we would welcome submissions from all interested parties, including noble Lords and Members of the other place. I obviously cannot give commitments on how long this will take, but I hope, having heard the debate in this House, that it will be speedy.

In conclusion, we need more evidence to justify the changes to road traffic legislation proposed in these two amendments. To this end, as I mentioned, the department is considering that call for evidence. I would therefore like to ask the noble Lord, Lord Brooke, to be patient for a little while longer. In the meantime, I hope he will be content to withdraw his amendment.

[Baroness Finlay of Llandaff (CB)]

Before the Minister sits down, can he just confirm, in the light of the comments he has made, that the consultation will consider lowering the limit below 50 down to 10 or 20, which would allow for what is termed “Grandma’s sherry trifle”, served up at a weekend, but would not —I repeat not—allow for a glass of an alcoholic beverage if you are holding the car keys? It may well be that 50 is completely the wrong level because it gives mixed messages.

[Lord Sharpe of Epsom (Con)]

I cannot give that assurance but, as I say, the scope of the consultation is still being worked up. As I have also said, once the call for evidence is concluded we would welcome submissions from all interested parties, so I am sure that that can be part of the scope.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I am grateful to all who have participated in the debate and particularly to the noble Baroness, Lady Finlay, for the work that she has done. I first express my sympathy about the experience that she has had. I am grateful to others who have spoken in support. I will not go on at length at this time of night, but I have two Front Benchers who are not happy about what I am seeking—or are certainly not supporting it.

My real concern is that we have been at this for years. I am offered, along with others, a review. But if the Scottish evidence is no different, we are in a Catch-22 situation where the Government will say, “The evidence from Scotland is not satisfactory from our point of view, and therefore we will make no change”. Personally, I am very much in the camp with the noble Baroness, Lady Bennett, and others who would like to see an even lower limit such as the Swedish one of 20. It cannot be nil, because the body itself generates a degree of alcohol that would always register, so for me personally it would be 20, but I have no evidence—other than going to Sweden and bringing it back—that will persuade the Minister. He is hooked on Scotland and what has happened. Changes need to be made in Scotland to enforce the limit more, given the problems encountered there.

So, I do not see a great deal of hope in withdrawing and waiting for this review, when there is no guarantee that the Government will take a different position—namely, that which I started on: the science is that if you drink, your risk of a collision goes up the more you drink. That is a fact of life and the scientists prove it, yet we go in a different direction and have a lead and guidance from the Government which allows people to drink and drive more than in any country in Europe, bar Malta. I believe it is wrong. I think that many Ministers believe it is wrong, and maybe even our Front Bench think it is wrong. So tonight, although I regret that it is late and I will keep noble Lords longer, I will not withdraw my amendment; I wish to test the mood of the House.