Investigatory Powers Bill (Sixth sitting)
Robert Buckland ExcerptsThursday 14th April 2016
(8 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 April 2016 - (14 Apr 2016)
The Solicitor General (Robert Buckland)
Regarding the Joint Committee’s recommendation, all I can say at this stage is that my understanding of the clause is that the issuing authority must also ensure that restrictions are in place that would prevent to the extent considered appropriate the material being used in any legal proceedings outside the United Kingdom, which of course would be prohibited by clause 48. There will be other obligations that the agencies will have to follow—for example, consolidated guidance. If the hon. and learned Gentleman would like any further clarification, I would be happy to write to him.
Keir Starmer
I am grateful.
Question put and agreed to.
Clause 47 ordered to stand part of the Bill.
Clause 48
Exclusion of matters from legal proceedings
Question proposed, That the clause stand part of the Bill.
The Solicitor General
The hon. and learned Gentleman is right about avowal but, of course, evidence pursuant to equipment interference has always been admissible. It is a bit of a mixed picture when you look at the detail of it.
Keir Starmer
I accept that there have been different avowals at different times in the past two years. I was speaking more generally. The argument about techniques is harder to sustain in the current set of circumstances. My view is that if there were a way to get around this exclusion, being able to use the evidence would bring very many benefits. When it comes to those involved in serious crimes, my strong preference is that they should be charged, put before a jury and, if convicted, serve the appropriate sentence, rather than be dealt with in some other way. For reasons that everybody understands, this provision frustrates that process. That is why I think it is time for a review against the current set of circumstances.
The Solicitor General
I am grateful to hon. Members for giving us the chance to have this brief but important debate. The hon. and learned Lady is right to characterise the existence of the prohibition, which has been in existence since the Interception of Communications Act 1985, with good reason.
I accept the points made by the hon. and learned Gentleman about evolution of powers and the avowal of particular techniques. Of course, very often we are talking about the protection of individual capabilities and that is a slightly more nuanced argument than the general points he makes. Therefore, ground No. 2 of the objection to the adduction into evidence of intercept material still remains a strong one, and ground No. 1 has to be acknowledged.
My hon. Friend the Member for Louth and Horncastle made the point well about the need to recast disclosure because it is material and relevant to the debate, and about ensuring that what is now intelligence but what would be evidence is in a form that can therefore be handled and admitted by a court. There is a cost to that, and the estimates given in the 2014 report vary between £4.25 billion and £9.25 billion. Those are not insignificant sums and they cannot be ignored or dismissed when balancing out the merits of taking this step.
The Government take the view—this is iterated in the 2014 report—that the problems outweigh, for the present at the very least, the potential benefit. The potential benefit is not clear, save for the points that the hon. and learned Gentleman makes. As a litigator and a prosecutor myself, I share his frustration and have been in those circumstances many times. I will not repeat the points he makes: I will adopt them.
The Government’s position in that report was to say that they will keep under review any changes that might affect the conclusions of their latest review. That remains very much the position. I do not think it is appropriate in this legislation for us to depart, in the absence of any further evidence, from the position that has been iterated in no fewer than eight different reports over the past few years.
Many of us in the room are familiar with this issue. The debate is held regularly and will continue, but in the absence of compelling reasons to depart from the provisions of the 1985 Act I commend the clause to stand part of the Bill.
Question put, That the clause stand part of the Bill.
The Solicitor General
I am grateful to the hon. and learned Gentleman for the question. Our answer is that, looking at clause 150(3), we say that it would come under head 2 and that the Secretary of State would have discretion to disclose—[Interruption.]
The Solicitor General
Sorry. It is clause 50(3), where we have head 2 and:
“(a) in the case of a warrant under Chapter 1 of this Part, a disclosure made to, or authorised by, a judicial Commissioner;
(b) in the case of a warrant under Chapter 1 of Part 1…a disclosure made to, or authorised by, the Interception of Communications Commissioner or a Judicial Commissioner”.
The disclosure is made by the Secretary of State. That might not be clear on the face of it, but that is the intention as I understand it of the clause.
Keir Starmer
I am just not sure. I think the Solicitor General has just quoted clause 152 to me.
The Solicitor General
May I correct the record? It is my error. I omitted a number. I was talking about clause 150(3). Page 117 of the Bill states:
“For the purposes of subsection (2) something is necessary for the authorised purposes if, and only if”,
and then we have paragraphs (a) to (f). That underpins the discretion of the Secretary of State to make that disclosure.
Keir Starmer
I am happy to pursue this matter outside the Committee if it is more convenient, but I think the provisions in clause 150 apply to bulk acquisition warrants rather than all warrants. Clause 150(1) sets out that it is expressly dealing with bulk acquisition warrants, and subsections 150(2) and 150(3) follow on from that. This is not intended as an exercise. Standing back from this, what I am concerned about is that it—
The Chair
Order. That was a lengthy intervention to help the Minister, who I now think wants to get back and explain the situation to the Committee.
The Solicitor General
What I will do is write to the hon. and learned Gentleman. My initial understanding was the right one, but I hope he will forgive me if I wandered off to the bulk powers provisions within the Bill. I will write to him to clarify the position. I think it is what I have said it is, but I will put it in writing.
The Chair
I will allow the hon. and learned Gentleman to ask further questions, and then the Minister may come back if he wishes.
Keir Starmer
I appreciate that the necessity and proportionality test has to be applied—in any given case there will always be an argument about whether it is necessary and proportionate—but as ever with necessity and proportionality the question is: what are we assessing necessity against and how are we arguing that it is proportionate? Is it necessary to do what? We get that only from the face of the statute. In other words, necessity does not give us anything unless we have some subject matter that it bites on, which is why the subject matter that it bites on is so important. Whether it is necessary for serious crime is one question; whether it is necessary for crime is another.
There are many, many things that one could say were necessary to prevent or detect crime. I absolutely accept that in practice those two tests are applied at all times, but the question is: what are they applied to? The question that the designated senior officer has to ask him or herself is: “Am I satisfied that it is necessary to prevent crime?” That would be good enough under the clause. It is, in principle, an inadequate threshold. I also think it will invite challenge in due course, because I do not think for one moment that, in the long run, the European Court and our courts are going to be satisfied with a scheme that does not have any threshold, even though there will be and are arguments about the precise threshold. We can see what the divisional court said in the Tom Watson case, so it is not just counsel’s argument that was never accepted by anybody. In that case in the divisional court, counsel’s argument that the serious crime threshold was an important safeguard was accepted. Thankfully, the writing is therefore on the wall if the clause is not taken back and reconsidered.
I shall move on to the second “who”. The first “who” I focused on was who can issue the necessary authorisation, which is the designated senior officer. Under clause 53(2), that person can
“authorise any officer of the authority to engage in any conduct”.
It goes from a relatively low-level authorisation to somebody even further down in the authority having to get on with the job of obtaining data.
The breadth of what can be done is outlined in clause 53(5), which states:
“An authorisation…may relate to data whether or not in existence at the time…may authorise the obtaining or disclosure of data by a person who is not an authorised officer, or any other conduct by such a person, which enables or facilitates the obtaining of the communications data”—
so it goes beyond the specific authorisation to the facilitation—
“and…may, in particular, require a telecommunications operator who controls or provides a telecommunication system to obtain or disclose data relating to the use of a telecommunications service provided by another telecommunications operator in relation to that system.”
It is a very broad provision.
That enables us to see the amendments in their proper context. There are three categories of amendment. The first category is to be taken as a set and would insert some rigour and independence into the process by requiring judicial commissioners to sign off the necessary authorisations. The second set of amendments, which we will come to in due course, seeks to amend the threshold to provide a meaningful threshold for the judicial commissioner. To call clause 53 as drafted a set of safeguards is to mis-describe the words on the page.
The Solicitor General
It is with this amendment, I am afraid, that we have a strong disagreement. To say that there are no thresholds is a misrepresentation of the situation. Putting it bluntly, the Government’s worry is that creating a serious crime threshold will miss a whole panoply of crimes that are extremely serious to victims. I am thinking in particular about crimes relating to harassment, stalking and other types of offences that would not fall within the threshold of serious criminality.
It is important that we couch our remarks carefully—the hon. and learned Gentleman has tried to do that, and I respect him for it. We are not talking about targeted interception here; we are talking about the retention of evidential leads—information that could, not of itself build a case, but which, in combination with other material, could allow investigators to build a case against a suspect. The analogy is with existing comms data, namely telephonic records and mobile phone records—the sort of material that he, I and others on the Committee have regular use and an understanding of, as prescribed by the RIPA regime. We are all familiar with it. The difficulty is that, as the days go by, the reliance by criminals on conventional methods of telecommunication changes.
The old system, where the SMS message would be the way things would be done, is increasingly falling into disuse. WhatsApp, internet chat forums and all sorts of encrypted means of communication are now being used. There is no doubt that the ability of the agencies—the security and intelligence agencies, the police and other agencies—to obtain even those evidential threads is therefore becoming more difficult. We are not talking about content, nor should we be. I draw an analogy with the sort of drugs observance case where the police officers can see people coming and going from a house that is of interest, but cannot see what is going on inside that house. That is what we are talking about here. Adopting these amendments would be entirely the wrong step to take.
Joanna Cherry
It is interesting that the Solicitor General chooses the example of surveillance in a drugs operation to tell us what we are talking about. That would be a serious crime, but as the shadow Minister has drawn attention to, clause 53(7) allows authorisations to obtain data not just for serious crimes, but for a whole plethora of things, including protecting public health, taxes, duties, levies and so on. Notwithstanding his opening comments, does he not accept that it is telling that the example he chooses is one of serious crime?
The Solicitor General
Not all drugs supply is necessarily serious. We might be talking about a particular class of drugs, which might not qualify within the criteria. Is the hon. and learned Lady seriously suggesting that we should not have the capability to draw evidential leads on cases of harassment, stalking or other offences that we all know are a particular problem when it comes to the abuse of victims?
Joanna Cherry
Stalking is, in my respectful submission, a serious crime. The thrust of these amendments is that the authorisation should be for serious crime, and by a judge.
The Solicitor General
The hon. and learned Lady wants to have her cake and eat it. The hon. and learned Member for Holborn and St Pancras said he wants a much higher threshold. I am sorry, but we cannot play around with this. The Committee is dancing dangerously on the edge if it seeks, in an ad hoc way, to try to subjectively define what serious crime is.
Keir Starmer
I want to be clear with the Committee. In fairness to the Solicitor General, I can see the argument that, for harassment, there can be serious consequences for the individual. I had to deal with a number people in that situation and I do not underestimate for a moment the serious consequence that a series of minor actions can have. I do not think that necessarily means that we cannot have a serious crime threshold. I would be willing to work on what that threshold would look like, but I should not be taken as thinking that harassment, for example, cannot have serious consequences.
The Solicitor General
I am grateful to the hon. and learned Gentleman for that concession. It is important and it is not straightforward, and that is why I am afraid, as currently constructed, these amendments are deficient.
If I can develop my argument, I would like to give an example from Gwent police—a force that I know very well and have prosecuted on behalf of for the Gwent CPS on many occasions. Last November, a female victim returning home from a night out was approached by an unknown male who proceeded to sexually assault her. As a result of her cries, two witnesses approached and, thankfully, the male fled the scene before the offence was completed, serious though it was. An urgent press release was issued, along with CCTV footage of the offender. As a result, a member of the public called the police stating that she recognised the offender, who had given her his number. Investigators acquired subscriber data on that number and identified a suspect, who was subsequently arrested. In court, the offender pleaded guilty and received a 12-week prison sentence that was suspended for 12 months, and was placed on the sex offenders register for five years. I think we would all agree that that sounds very serious.
The Solicitor General
But is it? We have got to be absolutely clear. None of us would want that type of offence to fall outwith any of the criteria in these provisions—I am sure that would be the case.
Peter Kyle (Hove) (Lab)
Proportionality was a central part of the discussion on Second Reading, and we received many reassurances from the Government. My hon. and learned Friend the Member for Holborn and St Pancras has made a powerful point about the use of these powers in minor crimes. The Bill lowers the threshold to
“damage to a person’s physical or mental health”
or the potential thereof. Will the Minister tell us what crime or potential crime does not pose damage to a person’s physical or mental health, or have the potential thereof?
The Solicitor General
Of course, there are plenty of offences that do not involve violence or the threat of violence, such as fraud, although I understand that the potential consequences of some fraud can cause stress. May I reassure him that the test of necessity and proportionality in clause 53(7) remains very much at the centre of everything? I would not want him to be misled into thinking, as has perhaps been suggested by some of his Front Bench colleagues, that this is a free-for-all; far from it.
The Solicitor General
No, because I want to develop the argument. It is vital that we look at the underpinning of all this. None of the three reports that informed the drawing up of the Bill, nor the three reports arising from the pre-legislative scrutiny of the draft Bill, recommended any changes whatever to the authorisation regime for communications data. For example, David Anderson QC recommends authorisation of the acquisition of communications data by a designated person in a public authority. RUSI recommended:
“For the acquisition of communications data otherwise than in bulk, an authorisation by the relevant public authority. Communications data should only be acquired after the authorisation is granted by a designated person.”
Prior to that, the report from the Joint Scrutiny Committee on the draft Communications Data Bill 2012 looked into the authorisation regime in depth and concluded that it was indeed the right model.
I entirely accept that anything that can sensibly be done to improve the already strongly regulated regime should be done. That is precisely why we have, for instance, provided for a new criminal offence that applies to persons in public authorities who knowingly or recklessly obtain communications data from a communications service provider without lawful authority. We have made the highly regarded SPOC—single point of contact—regime, which provides expert advice and guidance to authorising officers, a mandatory requirement in the Bill.
Lucy Frazer (South East Cambridgeshire) (Con)
Does the Solicitor General think that one of the reasons that David Anderson supported these clauses is the benefit of communications data in Operation Magpie, to which he refers specifically in his report, when Cambridgeshire County Council protected more than 100 elderly and vulnerable persons from attempts to defraud them by using communications data powers?
The Solicitor General
I am grateful for that powerful example provided by my hon. and learned Friend.
It is important to note that in the report on the draft Bill—I am looking at paragraph 11 of the summary of conclusions and recommendations—the Joint Committee stated:
“We believe that law enforcement should be able to apply for all types of communications data for the purposes of ‘saving life’. We recommend that the Home Office should undertake further consultation with law enforcement to determine”—
the report then makes references to various things in the draft Bill that would not necessarily read over to the Bill that is before the Committee.
The point I am seeking to make, in the round, is that we have a tried and tested system, which is being replicated—indeed, enhanced—by the Bill, that deals with a very large number of applications. According to the latest annual report by the Interception of Communications Commissioner, in 2013 there were 517,236 authorisations and notices for communications data in total. That contrasts that with warrantry and intrusive and limited interception of communications—in the same period, there were 2,795—so we are talking about a very different set of parameters, with a large volume of requests. My worry is that, however well-intentioned the amendment is, it is wholly unrealistic when it comes to fighting crime.
Keir Starmer
I rise only because this is an important point about how the powers will come to be exercised. It is of course possible to say that the precise wording of the amendment might not work in certain circumstances—all but sentences of 10 weeks or less are serious cases, and so on—but I do not want us to miss the point. The challenge to the Solicitor General is that there is no threshold. It is perfectly all right to say that the amendment does not necessarily achieve in precise terms the right level of seriousness, but it is not right simply to push back at the notion that there must be some threshold in the measure that is meaningful, which at the moment there is not.
The Solicitor General
I hear what the hon. and learned Gentleman says, but I do not agree with him about the threshold. It is set out in subsection (7). I can give another example: what about a missing person inquiry? We would not know whether it was a crime; it might well be a young person who has run away. We all have some direct or indirect experience of that.
I will address the point, but I have to be careful, because the case to which the hon. and learned Gentleman has referred is sub judice. I do not disagree with any of his characterisation, by the way, and of course I have read with care the Court of Appeal judgment of Lord Justice Lloyd Jones, but the hearing in the Court of Justice of the European Union is this week, I think. We will have to see how that develops.
I am very conscious of how case law develops in this area, and I am mindful of it, bearing in mind my duty as a Law Officer to uphold the rule of law. I am sure the hon. and learned Gentleman understands that, but where we are is in a sensible place. My worry is that if we start to get too restrictive, we will in effect end up in a position in which many serious matters—matters that are serious to the victim, but might not be serious according to other criteria—are lost or missed.
I have already mentioned necessity and proportionality. I should also pray in aid the fact that there will have to be compliance with a detailed code of practice and independent oversight and inspection of the regime by a senior judge, currently the Interception of Communications Commissioner. The current internal authorisation regime is working well. No deliberate abuse of it has been identified in any ICC reports, which speaks volumes for the integrity of the current system.
Joanna Cherry
Will the Solicitor General accept that there have been severe concerns lately about what turned out to be rather destructive surveillance activities by the Metropolitan police in relation to covert human intelligence sources? Does he agree that it is highly unlikely that such practices would have occurred if there had been a system of prior judicial authorisation, rather than internal authorisations?
The Solicitor General
The hon. and learned Lady knows, of course, that that matter is now being investigated, in an inquiry led by Lord Justice Pitchford. I am not saying that she is not entitled to mention it, but it really is a different set of circumstances. That particular means—the covert use of human intelligence sources—is not what we are talking about, with the greatest respect. We are talking about ensuring that authorities prescribed by statute have the capability to continue finding the sorts of evidential lead that until now have been almost exclusively the province of conventional telecommunications.
Joanna Cherry
Perhaps I can put another example to the Solicitor General. Towards the end of last year, it was revealed that, due to what a judge labelled systemic internal failings in how the National Crime Agency applied for a warrant, a number of trials were at risk of collapse. Earlier in the year, Mr Justice Hickinbottom lamented what he called an
“egregious disregard for constitutional safeguards”
within the NCA, in the case of Chatwani and others v. the National Crime Agency and others. Those are examples of where the system is not working.
The Solicitor General
I am familiar with what the hon. and learned Lady is talking about, but again, that involves a particular failure by the NCA on warrantry. Here we are talking about various agencies’ abilities. With respect to her, it is not the same. We are discussing a different regime. Tempting though it is to read over, that would be to frustrate the important work of many law, detection and investigative agencies in our country.
I do not see the purposes within the Bill as inconsistent in any way with the purposes set out in the exemptions from and limitations of the right to privacy in article 8.2 of the European convention on human rights. There has never been a serious crime threshold for the acquisition of communications data. No such limit is placed in article 8.2, which is why the Government’s position on this issue—I will not mention the case—is legally respectable and sustainable. That is why the provisions in the clause meet the challenge that faces the agencies in a way that is proportionate and necessary, and that keeps pace with the breathtaking rate of change of technology being taken advantage of by many people of good will, but also by people of less than good will. For that reason, I ask that the amendment be withdrawn.
Keir Starmer
I will not repeat the concerns that we raised. Proceeding with a clause that has no seriousness threshold, however expressed, is fraught with difficulties, but the Minister has indicated that he will consider some of the issues and I want to reserve this issue for a later stage, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Joanna Cherry
I am very much in agreement with everything that the hon. and learned Gentleman said on the last group. The Scottish National party’s position is that access to communications data should be by means of a judicial warrant. We share the concerns that he articulated about the lack of a proper threshold in clause 53(7). I do not intend to press these amendments to a vote. I associate myself with his position, and I reserve my position on this matter for a later stage. This is an absolutely crucial clause, and it is extremely concerning, as he said, that there is no proper threshold in it.
The Solicitor General
I am grateful to the hon. and learned Lady for her succinct remarks. I will simply make the following observations about her amendment. It would remove the ability of the relevant public authorities to apply for communications data authorisation to test equipment or for technology development purposes. It is vital that those who are authorised to acquire communications data are able to test existing systems and to assist the development of new equipment or systems. Without that ability, we will not know whether the equipment will provide the required information in a real-life investigation, and nor will we be able to fix errors in systems where they are detected. We fear that that could have a seriously detrimental effect on our law enforcement agencies’ ability to prevent and detect crime and may lead to mistakes, which are in nobody’s interest—least of all that of the public, whom we serve. Therefore, this is a vital further safeguard. With respect, we are somewhat puzzled about why the amendment was tabled, but we heard the hon. and learned Lady and we respect her position. For those reasons, we oppose the amendment.
Joanna Cherry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I will make such comments as I have during the clause stand part debate.
The Solicitor General
I am grateful to the hon. and learned Gentleman. It was puzzling me, and he has solved the mystery. The amendment seemed to remove the safeguard, which I am sure he does not want to do.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Solicitor General
It is important that we go through this carefully. The shadow Minister talked about browsing history. The full history does not constitute comms data; it is not an ICR for the purposes of this legislation. It is like looking at everything after the forward slash. Let us take the example of a website such as telegraph.co.uk: the fact that a person visited the website may be one thing, but everything after the forward slash—the detail of what the person is doing—is not an internet connection record for the purposes of the Bill.
Keir Starmer
I am grateful to the Solicitor General for that reply. The same point was made on Second Reading by the Home Secretary and was also made in Committee, but I have a difficulty with it that is important to put on the record. Where are the words in the Bill that result in what the Solicitor General said? I am concerned, because I cannot see them.
I accept that, when it comes to accessing internet connection records, there is the further test in clause 54(4). At the moment, a constituent might say, “Will my internet connection records and browsing history be kept?” People are concerned about whether there is a record of what they have looked at on the internet. They feel very chilled by that. The Solicitor General says that it goes so far but no further. That is to give people comfort and I understand why it is said. The difficulty I have is finding the precise words in the Bill that give effect to that proposition.
The Solicitor General
Is not the real question whether the authorities will have access to that history without due process? Therein lies the rub. As I have said to the hon. and learned Gentleman, the full browsing history will not be capable of being accessed without further warrantry.
Keir Starmer
I understand the Solicitor General’s point, which is that when it comes to access, there is a further, stricter test. I absolutely understand that and I accept that clause 54(4) is there for a purpose. The question that my constituents and I, and others, want answered is, “What about what is being retained?” There is a chilling feeling if it is being retained. The comfort of the Government saying, “Well, we are keeping everything but we will not look without a stricter test”, is, of course, a comfort, but it is not that much comfort to many concerned individuals.
Keir Starmer
I am grateful to the Minister for pointing that out but that was the route that I trod a few days ago when I was preparing my submissions. The problem is that content is given the description that he just set out, but it also says,
“any meaning arising from the fact of the communication or from any data relating to the transmission of the communication is to be disregarded, and (b) anything which is systems data is not content.”
That obviously led me to have a look at what systems data are, for which we have to go to clause 225(4), which states that systems data
“means any data that enables or facilitates, or identifies or describes anything connected with enabling or facilitating, the functioning of…a telecommunication system”.
It is true, and I accept, that an internet connection record does not include content in the form set out in 223(6), but then one gets to systems data, and part of it comes back out again. It would be very helpful if someone were to attempt to describe, by reference to the Bill’s provisions, why it is said that, at the point of retention, the provision does not include web browsing history. That is a question that many people would like answered. I leave that challenge on the table for the Government.
I rose to say that at this late hour and it is a complicated point, but it goes to the heart of the question about ICRs. At the moment, it is being framed in the sense of, “Well, they won’t look at it unless”, but people are genuinely concerned about the retention of their browser history.
The Solicitor General
As a preface to my remarks, which will have to be succinct, I do not want to stray into the debate on clause 78. I do not want to criticise the hon. and learned Member for Edinburgh South West, but she has made points that will properly be answered when we come to that debate. She is right to raise the point about the Danish experience and, like me, she has read the evidence in the Committees, but there are significant differences between what we are trying to do in the UK and what happened in Denmark. The Danish experience was not a great one. There are significant operational, financial and other differences that mean that the Danish Government are looking carefully and with a great interest at what we are attempting to do in the UK. This is not straightforward and it is not easy, but it is our duty as legislators to get ahead of the curve when it comes to the development of technology and to make sure we are not playing catch-up when it comes to criminals’ increasingly sophisticated use of the digital sphere.
Joanna Cherry
Setting the Danish experiment to one side, can the Solicitor General tell us why the other “Five Eyes” countries are not requiring operators to retain similar internet connection data? Why are no other western democracies doing that?
The Solicitor General
The simple answer is that they know there are technological challenges and that someone must start somewhere. I am proud that the United Kingdom is trying to set the correct example. It may be that the detail is more than we can do and this is why we are having scrutiny and debate—I warmly welcome that—but to suggest that because it is difficult we should not take a lead is a counsel of despair. That is not good enough when it comes to the challenges facing us with the development of technology.
The hon. and learned Member for Holborn and St Pancras asked some proper and detailed questions, and rightly contrasted and compared various parts of the Bill. As lawyers and legislators, we must be careful not to become too prescriptive when defining the technology, which is why the combination of the framework in the Bill and the code of practice to which the hon. and learned Member for Edinburgh South West referred—paragraph 2.63 helpfully sets out what an ICR might consist of—gives sufficient clarity and flexibility operationally to keep pace with developments in technology. We must necessarily be technology neutral and careful when making definitions.
We worked extremely closely with law enforcement agencies about their needs, including the Joint Committee’s work, and they have been clear that the Bill now reflects those needs. Communication service providers have also developed their views in recent months. They confirmed in evidence to the Committee that they understand exactly what they are being asked for. My strong contention is that what we have now is a clear definition of internet connection records and helpful support from the codes of practice.
Let me deal with clause 54 directly. It sets out clearly the four operational purposes for which a designated senior officer may grant an authorisation for a relevant public authority to obtain an internet connection record. All those purposes have been endorsed by the Joint Committee. Importantly, it specifically advanced the fourth purpose in its conclusions. That fourth purpose covers connections that do not disclose a crime or nefarious purpose, but with other material can help to build up a series of evidential leads to the effective detection of crime.
I am grateful for the examples that the Digital-Trust gave to all members of the Committee. Many of us are familiar with the organisation and it is supported by, among others, Harry Fletcher, who was deputy general secretary of the National Association of Probation Officers. His work, with that of others, to combat stalking and harassment is well known to me. I worked closely with him on the draft Bill that became law as the Protection of Freedoms Act 2012, and now on the work that addresses stalking. The trust’s example is powerful. Many stalkers sadly indulge in sending unwanted gifts to their victims. For example, they may habitually order flowers to make the point that they are still there. The victim may not want such gifts, but they are part of the stalking behaviour.
The internet connection record that discloses that someone had gone to a florist is innocuous, but it could be vital lead evidence in building a picture of someone’s stalking and harassing behaviour. That is why the Digital-Trust strongly supports clause 54(4). It can see the operational merit in ensuring that such purposes are included. It is a stark and clear example of the dangers of over-limiting the criteria within which the investigating authorities can act.
The hon. and learned Gentleman is quite right to talk about the concerns we all share about the unwarranted retention of masses of information that would constitute an intrusion into the lives of millions of people. Let us not forget that the Government will not be retaining the information. The information will be at arm’s length from Government. There is a filter system designed not only to screen out but to destroy data that is extraneous to the investigation. Crucially, the full web browsing history does not constitute an internet connection record. It is therefore not covered by the provisions and would have to be subject to the sort of warrantry that Members of this House understand to be necessary to protect the privacy of the people we serve. For those reasons, I strongly commend clause 54 to the Committee.
Question put, That the clause stand part of the Bill.
Investigatory Powers Bill (Third sitting)
Robert Buckland ExcerptsTuesday 12th April 2016
(8 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 April 2016 - (12 Apr 2016)
Joanna Cherry
I will deal with new clause 3 in fairly short compass. The amendment was suggested to me by the Scottish division of Pen International, which is a world association of writers. It would introduce a tort, or a delict as we call it in Scotland, for unlawful interception. Such a tort or delict exists already as a result of section 1(3) of the Regulation of Investigatory Powers Act 2000, and I am not entirely sure why it has not been replicated in the Bill. I would be interested to hear from the Solicitor General or the Minister for Security why the Government did not include the measure in the Bill, and whether they will give it serious consideration. It would give a meaningful avenue of recourse and act as a motivation to intelligence agencies, police forces and the Government to ensure that all interception is lawfully authorised, on pain of an action for damages if it is not properly authorised. It is really a very simple new clause modelled on section 1(3) of RIPA. I am interested to hear what the Government have to say about this suggestion.
The Solicitor General (Robert Buckland)
It is a pleasure to take this first opportunity to say that I am looking forward to serving under your chairmanship, Ms Dorries, and indeed to serving with all colleagues on the Committee.
I am grateful to the hon. and learned Lady for making her observations in a succinct and clear way. I am able to answer her directly about the approach that we are taking. One of the aims of the Bill is to streamline provisions to make them as clear and easy to understand as possible. She is quite right in saying that RIPA had within it this provision—a tort or a delict, as it is called north of the border, that would allow an individual to take action against a person who has the right to control the use or operation of a private telecommunications system and to intercept communication on that system.
The Government have fielded a number of inquiries about the non-inclusion of the RIPA provision in the Bill. The circumstances in which it applies are extremely limited, and as far as we are aware it has never been relied on in the 15 years of RIPA’s operation. The provision applies only in limited circumstances because it applies to interception on a private telecommunications system, such as a company’s internal email or telephone system. Where the person with the right to control the use or operation of the system is a public authority, there are of course rights of redress under the Human Rights Act 1998, such as article 8 rights.
The Bill is intended to make the protections enjoyed by the public much clearer and we feel that introducing that course of action or replicating it would not add to that essential clarity, but I have listened carefully to the hon. and learned Lady and we are happy to look again at the issue in the light of her concerns. On that basis, I invite her not to press her new clause and I hope we can return to the matter on Report.
Joanna Cherry
I am grateful to the Solicitor General for his constructive approach. I am happy not to press the new clause at this stage on the basis that the Government will look at it. I am happy to receive any suggestions about the drafting, which is mine. I had some discussions about the terms of the drafting with Michael Clancy of the Law Society of Scotland and James Wolffe, the dean of the Faculty of Advocates, but any infelicities are my fault alone. I would be happy to discuss the drafting with the Government.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Definition of “interception” etc.
Question proposed, That the clause stand part of the Bill.
Keir Starmer
There are no amendments tabled to the clause, which we support, but I say for the record and for clarification that what is welcome in clause 3 is the spelling out in legislation of the extent of an interception—an issue that has bedevilled some recent criminal cases. Importantly, as the explanatory notes make clear, it is now provided in clear terms that voicemails remaining on a system, emails and text messages read but not deleted and draft messages stored on a system will count within the phrase “in the course of transmission” and will therefore be covered by the offence. We welcome that. I wanted to emphasise that point and put it on the record, because a lot of time and effort was spent when that phrase was not so clearly defined.
The Solicitor General
I am extremely grateful to the hon. and learned Gentleman. He is right: we have moved a long way from phone tapping, which he, I and many others understood to be clear interception whereas, for example, the recording and monitoring of communications at either end of the process was not interception. As he rightly says, the internet and email have caught up with us, so as part of the Government’s thrust to have greater clarity and simplicity, this essential definition is a welcome part of the statutory framework that now exists.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clauses 4 and 5 ordered to stand part of the Bill.
Clause 6
Monetary penalties for certain unlawful interceptions
Question proposed, That the clause stand part of the Bill.
Keir Starmer
Again no amendments are tabled to the clause, but there are some questions that arise from it. The explanatory notes say, and it is clear in the Bill, that the clause creates a power for the Investigatory Powers Commissioner to impose fines where an interception has been carried out, but there was no intention. It relates to action that might otherwise be an offence, but the intention element is not made out. Against that background, I have some questions for the Solicitor General.
If the power applies where an interception is carried out but there was no intention to do so, it is hardly likely to have a deterrent effect because the person did not intend to do it in the first place, so what is the rationale and purpose of this provision? It is clear in schedule 1, which is related to clause 6, that the commissioner has very wide discretion in relation to the operation of the powers under the clause including, in paragraph 13, powers to require information from individuals
“for the purpose of deciding whether to serve”
an enforcement notice. Thus we have a provision that is premised on a non-intentional interception that then triggers quite extensive powers to require information with penalties for failure to provide that information. Schedule 1 states that guidance will be published on how the powers are to be exercised, but what is the real rationale and purpose? Why are the powers as extensive as they are and will the Minister commit to the guidance envisaged under schedule 1 being made public?
In clause 6(3)(c) there is reference to a consideration by the Commissioner that
“the person was not…making an attempt to act in accordance with an interception warrant”,
which suggests that that is outside the scheme of the provision. We have also noted that the provision relates only to a public telecommunications system. It is in many ways supplementary or complementary and we are not questioning it in that sense, but there is a number of unanswered questions. If we are to scrutinise and probe, it would be helpful to have those answered now if possible, and if it is not answered in writing.
The Solicitor General
I am grateful to the hon. and learned Gentleman for his questions. I assure him that there is a very good rationale for the inclusion of these powers. They are a replication of powers that were added to RIPA in 2011. Monetary penalty notices followed a letter of formal notice that was issued by the European Commission setting out its view that the UK had not properly transposed article 5(1) of the e-privacy directive and articles of the data protection directive. In particular, the Commission identified:
“By limiting the offence in Section 1(1) RIPA to intentional interception, the UK had failed to create a sanction for all unlawful interception as required by Article 5(1) of the E-Privacy Directive and Article 24 of the Data Protection Directive.”
The Government rightly conceded the defective transposition that had been identified and therefore the monetary penalty notice regime was established to introduce sanctions for the unintentional and unlawful interception in order to remedy the deficiency.
The hon. and learned Gentleman is quite right that it is a step down from a criminal offence, where intention has to be informed, but as my right hon. Friend the Minister for Security said when opening the debate, underpinning all of this is the importance of privacy, and the right to privacy is demonstrated in practical form by the inclusion of clause 6 and schedule 1. It is important so that we cover all aspects of intrusion because, as the hon. and learned Gentleman will know, privacy is not just about confidentiality. That is often misunderstood, particularly in the light of recent debates about injunctions. It is about intrusion into the lives of individuals, and that intrusion by the authorities in particular should be marked in some way by the imposition of some alternative sanction if it cannot be criminal sanctions. Therefore, there is a very sound rationale for the inclusion of these powers and replicating them from RIPA, and therefore I commend the clause to the Committee.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 7
Restriction on requesting interception by overseas authorities
Keir Starmer
I rise to make essentially the same point as I made on the previous clause, albeit more briefly. This is a good and right in principle clause to ensure that there are restrictions on requesting assistance under mutual assistance agreements, but again the sanction for breach is not entirely clear. That may be something that, under the umbrella that the Minister for Security just indicated, could be taken away to see what the enforcement regime is for these important safeguarding provisions.
The Solicitor General
The hon. and learned Gentleman will know that this mutual legal assistance regime definitely benefits from statutory underpinning. It has become increasingly important. Sadly we have all learnt that relying just on good will or informal arrangements is no longer sufficient, which is why the international work that I know hon. Members are aware of, particularly negotiations with the United States, are so important in speeding up the process and making it ever more efficient, particularly in the light of all the political controversies we have been dealing with in recent days. I undertake to deal with the question that he raises, which I think we can deal with in an umbrella form as he suggests.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Clause 9
Offence of unlawfully obtaining communications data
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 4—Tort or delict of unlawfully obtaining communications data—
“The collection of communications data from a telecommunications operator, telecommunications service, telecommunications system or postal operator without lawful authority shall be actionable as a civil wrong by any person who has suffered loss or damage by the collection of the data.”
This new clause creates a civil wrong of unlawful obtaining of communications data.
Joanna Cherry
The new clause very much relates to what I said earlier about new clause 3. The intention is to create a civil wrong of unlawfully obtaining communications data as opposed to unlawful interception. Again, the drafting is mine and it could do with some serious tightening up, but my intention is to establish the Government’s attitude to the new clause. I hope that the Solicitor General will indicate that.
The Solicitor General
I am grateful to the hon. and learned Lady for the way in which she spoke to her new clause. I see that it very much follows new clause 3. Our argument with regard to new clause 4 is slightly different because it has a wider ambit than private telecommunication.
We submit that this tort or delict would not be practicable. Communications data are different from the content of communication. For example, one would acquire communications data even by looking at an envelope or searching for a wi-fi hotspot when turning on a particular wi-fi device at home. It would not be appropriate to make ordinary people liable for such activity. With respect to the hon. and learned Lady, its ambit is too wide. That said, it is only right that those holding office within a public authority are held to account for any abuses of power. That is why clause 9 makes it an offence for a person in a public authority to obtain communications data knowingly or recklessly without lawful authority. I place heavy emphasis on the Government’s approach to limiting and checking the abuse of power by the authorities.
On the new clause, the interception tool was always intended to address the narrow area that was not covered by the interception offence in RIPA, which is replicated in the Bill. As noted, the communications data offence is intentionally narrower. It would therefore be equally inappropriate to introduce a tort or delict in relation to the obtaining of communications generally or in the areas not covered by the new offence. Under the provisions of the Data Protection Act 1998, communications data often constitute personal data. That act already provides for compensation for damage or distress resulting from non-compliance with the data protection principles and for enforcement in respect of failing to comply with the provisions of the act.
Lucy Frazer (South East Cambridgeshire) (Con)
Does my hon. and learned Friend think that the offence of misfeasance in public office would also add a civil remedy for any wrongdoing?
Robert Buckland
I am extremely grateful to my hon. and learned Friend. She is quite right. In fact, not only is there the offence of misconduct in public office, as it is now constituted, having been reformed from the old offence of misfeasance, but we have provisions in the Wireless Telegraphy Act 2006, the Computer Misuse Act 1990 and, as I have already mentioned, the Data Protection Act 1998. I therefore consider that the new offence we are introducing in clause 9, combined with relevant offences in other legislation, in particular the provision in section 13 of the Data Protection Act 1998, provides appropriate safeguards. On that basis, I respectfully invite the hon. and learned Lady to withdraw the amendment.
Christian Matheson (City of Chester) (Lab)
It is, as always, a pleasure to see you in the Chair, Ms Dorries. The Solicitor General has given examples of wide-ranging powers that are available to protect the public. I was grateful to listen to his contribution. However, during Second Reading I queried the Home Secretary’s position on the new offences that are being created. Many of the offences the Bill refers to, particularly in clause 9, relate to the regulation of investigatory powers. My concern is that later the Bill requires internet service providers, for example, to amass a large amount of personal data, and there is a danger that those data may be stolen rather than intercepted. I gave the example of a newspaper perhaps finding a low-grade technical operator in a telecommunications company, passing a brown envelope to them and stealing a celebrity’s internet connection records. I am concerned that the offence in clause 9 of unlawfully obtaining communications data does not go far enough.
I bear in mind the Solicitor General’s comments on other protections that are available, but would he or the Government consider an offence of not just obtaining but being in possession of unlawfully obtained communications data, which would strengthen the protections given to members of the public? We all know that the kind of scenario that I am expressing concern about has not been unknown in the last few years, as various court cases have demonstrated—though I should not discuss their details. Is the Minister satisfied that the protections he has outlined and those raised by the hon. Member for South East Cambridgeshire are sufficient, or should we take this clause a bit further, to give the public broader and wider protection of their privacy and the security of their internet and telecommunications transmissions?
Keir Starmer
It is a pleasure to follow my hon. Friend because I want to develop the point. This is a welcome clause, it is right that it is here, and we support it. However, we question whether it goes far enough. It only covers obtaining communications data. We think that serious consideration should be given to an overarching offence of misuse of the powers in the Bill. At the moment, there are specific provisions in relation to intercept which are replicated frim RIPA and we now have this welcome provision, but there is no overarching offence of misuse of the powers in the Bill.
It is all very well to say that there is the tort of misfeasance in public office. That is not the equivalent of a criminal offence. It has all sorts of tricky complications when one tries to apply it in practice. It is fair to say that there are other bits of legislation that might be made to fit in a given case, but it would be preferable and in the spirit of David Anderson’s approach for a comprehensive piece of legislation for an overarching criminal offence to be drafted, either out of clause 9 or in some other way, relating to misuse of powers in the Bill. It has been a source of considerable concern in the past and I ask the Government to think about a wider offence that would cover all the powers, because comms data are only one small subset of the issues and material information we are concerned with.
I have two short supplementary points. In subsection (3) there is a reasonable belief defence. It would be helpful if the Minister said a bit more about that. May I also foreshadow the inconsistency that we will need to pick up as we go along in the way reasonable excuse and reasonable belief are dealt with in the Bill? It is set out in subsection (3), but there is an inconsistency in other provisions that I will point to when we get there.
My other point is to ask the Minister to consider whether obtaining communications data unlawfully is a sufficient definition to make the offence workable in practice. I put my questions in the spirit of supporting the clause, but I also invite Ministers to go further and consider drafting a clause that covers the misuse of powers in the Bill, rather than simply saying that if we fish about in other bits of legislation or common law we might find something that fits on a good day. In my experience, that is not a particularly helpful way of proceeding.
The Solicitor General
Thank you, Ms Dorries, for allowing me to reply to a stand part debate on clause 9. I think we have elided the this and the previous clause, but I crave your indulgence to deal with everything in a global way. May I deal properly with clause 9 and set out the Government’s thinking on this?
The measure is all about making sure once again that those who hold office within a public authority are properly held to account for any abuses of power. The clause will make it an offence knowingly or recklessly to obtain communications data from a communications service provider without lawful authority. Somebody found guilty of that offence might receive a custodial sentence or a fine. The maximum punishment will vary according to whether the offence was committed in England and Wales, or in the jurisdiction of Scotland or Northern Ireland.
The hon. and learned Gentleman is right to point out the reasonable belief defence. The offence will not have been committed if it can be demonstrated that a person holding office acted in the reasonable belief that they had lawful authority to obtain the data. Where a communications service provider willingly consents to the disclosure of the data, including by making it publicly or commercially available, that would constitute a lawful authority.
The question about reasonable belief is about making sure that genuine error is not penalised, because there will be occasions when genuine errors are made. In the absence of such a defence, public authorities could be deterred by notifying genuine errors to the IPC. It is important that the Investigatory Powers Commission is an effective body monitoring failure and lack of best practice, and preventing future errors.
I think the hon. and learned Gentleman will agree that we both have fairly considerable criminal litigation experience. In this area, I think a regulatory approach will be just as effective, and in some ways more effective, than a criminal sanction. I am grateful to the hon. Member for City of Chester for reiterating the remarks that I remember him making on Second Reading, when he made some powerful points, but I caution that we are in danger of creating an entirely new criminal framework, catching people further down the line, which ultimately will only lead to more confusion and, I worry, the replication of existing offences.
An unauthorised disclosure by someone in a communications service provider would be covered by the Data Protection Act 1998, because those providers have duties and obligations under that Act just like any other holder of data. I hear what the hon. and learned Gentleman says, and I will consider the matter, but my initial reaction to his question and that of the hon. Member for City of Chester is that the Data Protection Act covers such a disclosure.
Victoria Atkins (Louth and Horncastle) (Con)
I have heard Opposition Members’ arguments. Some thought has been given to this point and clause 49 puts a duty not only on people who work in public services but on postal operators, telecommunications operators and any person employed therein to not make unauthorised disclosures in relation to intercept warrants. That might help.
The Solicitor General
I am grateful to my hon. Friend, who served with distinction on the Joint Committee. That provision relates to creating a statutory duty, which, with respect to her, is slightly different from some of the arguments we are having about criminal sanctions. However, it is important to pray that in aid, bearing in mind the mixed approach we need to take in order to hold public office holders and public authorities to account when dealing with this sensitive area.
The Bill provides a great opportunity for us to put into statute a new offence, which will, together with the other agencies, provide a robust regime that will add to the checks and balances needed in this area in order to ensure that our rights to privacy are maintained wherever possible, consistent with the Government’s duty towards the protection of our national security and the detection and prevention of crime.
Christian Matheson
I am grateful to the Solicitor General for that clarification. My concern about his reliance on, for example, the Data Protection Act is what happens in the scenario I described, which I do not believe is so unbelievable, bearing in mind the experiences that hon. Members of this House have had in the past few years with the theft of their information. One problem that his solution presents is that if, for example, my personal data were stolen and published, the only recourse I would have is to the telecommunications provider, which is in a sense a victim itself. The real villains and culprits—the people who stole the information and published it—would not be covered by the Data Protection Act, which is why I seek consideration of extending the clause or guidance from the Solicitor General.
The Solicitor General
I hear what the hon. Gentleman says. I have already indicated that I will consider the matter further. I will simply give this solution. He mentioned the stealing of information. Information is property, like anything else, and of course we have the law of theft to deal with such matters. I do not want to be glib, but we must ensure we do not overcomplicate the statute book when it comes to criminal law. I will consider the matter further, and I am extremely grateful for his observations.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Joanna Cherry
On a point of order, Ms Dorries, may I seek clarification on my position on new clause 4, which the Minister invited me to withdraw? I am minded to do so, having regard to what the Solicitor General said about the Data Protection Act and what the hon. and learned Member for South East Cambridgeshire said about misfeasance in public office, but as a novice in these Committees I seek some guidance. If I press the new clause to a vote now and it is voted down, does that prevent me bringing it back to the Floor of the House?
Keir Starmer
I will be very quick. The clause is welcome and we support it, but again my concern is that there is no enforcement mechanism or sanction. Will the Minister take it under the umbrella of these clauses that are intended to ensure good governance, effectiveness and that the proper routes are used, and look in an overarching way at what their sanction might be? I am asking a similar question to one I made before: what is the sanction if what should happen does not happen?
The Solicitor General
Yes, of course, we will do as the hon. and learned Gentleman asks. I welcome his endorsement of the importance of the clause, bearing in mind what it sets out and the clarity we are achieving through its introduction.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Restriction on use of section 93 of the Police Act 1997
Question proposed, That the clause stand part of the Bill.
Keir Starmer
I make the same point again: the clause is a good provision but appears to lack any enforcement mechanism or sanction, so if it could go into the basket of clauses that are being looked at in relation to sanction, I will be grateful.
The Solicitor General
The clause confirms that section 93 of the Police Act 1997 may not be used to authorise conduct where the purpose of the proposed interference is to obtain communications, private information or equipment data and the applicant believes the conduct would otherwise constitute an offence under the Computer Misuse Act 1990, and the conduct can be authorised under an equipment interference warrant issued under part 5 of the Bill. So it does not prevent equipment interference being authorised under the Police Act where the purpose of the interference is not to obtain communications and other data—for example, interference might be authorised under the Act if the purpose is to disable a device, rather than to acquire information from it.
That reflects the focus of this Bill. We are trying to bring together existing powers available to obtain communications and communications data. I emphasise that the measure does not prevent law enforcement agencies from using other legislation to authorise interference with equipment that might otherwise constitute an offence under the Computer Misuse Act. For example, law enforcement agencies will continue to exercise powers under the Police and Criminal Evidence Act 1984 to examine equipment that they possess as evidence. The result of this clause is that all relevant activity conducted by law enforcement agencies will need to be authorised by a warrant issued under part 5 of the Bill.
Keir Starmer
Based on what the Minister has just said, it may be that it is anticipated that any attempt to use other legislation in breach of this provision would automatically be refused. That is the bit where there might need to be some clarity, because in effect it will not be an application under this legislation; it would be an application under different provisions, so does this operate as a direction to any decision maker that that is an unlawful use of another statute? That is not entirely clear. I think that that is what is intended. If it is, that is a good thing, but I am not entirely sure that a decision maker would say, “I am prohibited by law from exercising powers available to me under other legislation.” I leave that with the Minister because it may be something that can be improved by further drafting.
The Solicitor General
I thank the hon. and learned Gentleman for that intervention. While I will answer the specific question, I think it is important that I set out the fact that this provision is not the only means. What we are dealing with here is part 5 and the double lock and the enhanced safeguards. If any agency or authority fails to use new part 5 or PACE, for example, in other circumstances, they will be committing an offence under the Computer Misuse Act. Public authorities are no different from any other individual or body: if they are not complying with the existing legal framework by this or other means, they fall foul of the law themselves. I will endeavour to answer the other points raised about sanction but I urge the Committee to agree that the clause stand part of the Bill.
Question put and agreed to.
Clause 12 accordingly ordered to stand part of the Bill.
Clause 13
Warrants that may be issued under this Chapter
Keir Starmer
I beg to move amendment 57, in clause 13, page 10, line 16, after “content”, insert “or secondary data”
This amendment, and others to Clause 13, seek to expand the requirement of targeted examination warrants to cover the examination of all information or material obtained through bulk interception warrant, or bulk equipment interference warrant, irrespective of whether the information is referable to an individual in the British Islands. They would also expand the requirement of targeted examination warrants to cover the examination of “secondary data” obtained through bulk interception warrants and “equipment data” and “information” obtained through bulk equipment interference warrants.
Oral Answers to Questions
Robert Buckland Excerpts(8 years, 9 months ago)
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Alan Brown (Kilmarnock and Loudoun) (SNP)
3. What discussions he has had with his Cabinet colleagues on the compatibility of Government proposals on investigatory powers with EU law.
The Solicitor General (Robert Buckland)
I regularly meet ministerial colleagues to discuss important issues of common interest, including on EU law matters. I am unable to talk about any legal content of those discussions, because whether or not the Law Officers have given advice, by convention, is not disclosed outside Government.
Alan Brown
Recent judgments from the European Court of Human Rights, such as in Zakharov v. Russia, strongly suggest that the powers in the United Kingdom’s draft Investigatory Powers Bill could violate the European convention on human rights. What discussions has he had with his colleagues in the Home Office to ensure that powers provided for in the Bill are compatible with the convention?
The Solicitor General
I can assure the hon. Gentleman that in the most recent case in the Court of Appeal, in November last year, the provisional view was that the Data Retention and Investigatory Powers Act 2014 was not inconsistent with EU law. A reference has been made to the Court of Justice of the European Union. I will not comment on that particular case, but I can assure him that when it comes to issues of compatibility, anxious consideration is always given to ensure that legislation here is in accord with the rule of law.
Mark Pritchard (The Wrekin) (Con)
In an unsafe world, we need to keep the United Kingdom, and indeed our European partners, safe. With the security charter for the draft Investigatory Powers Bill, how will the Government get the balance right between civil liberties on the one hand and national security on the other?
The Solicitor General
My hon. Friend asks probably the most important question about that balance. I can reassure him that the draft Bill, and indeed the legislation that will come forward shortly, strikes that balance, most notably in involving judicial authorisation for the granting of warrants. That double-lock process, which involves the Secretary of State and the judiciary, strikes the right balance.
Keir Starmer (Holborn and St Pancras) (Lab)
The case involving the right hon. Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for West Bromwich East (Mr Watson), which the Solicitor General has referred to, and which is before the Court of Appeal, but with a reference to the European Court of Justice, could have implications for the draft Investigatory Powers Bill. The case is being heard in April. How does the Solicitor General see that impacting on the timetable for the Bill going through this House?
The Solicitor General
While we understand that the case will be heard in April, it is still very much an unknown factor as to when a judgment will come. What I can say is that the outcome of any case will, of course, be carefully considered. However, I do not anticipate that causing a delay to the introduction of that important Bill, bearing in mind the sunset provisions in DRIPA.
Nic Dakin (Scunthorpe) (Lab)
4. What discussions he has had with his Cabinet colleagues on the UK’s domestic and international human rights obligations.
The Solicitor General (Robert Buckland)
The CPS has undertaken a considerable amount of work to place priority on the improvement of rape prosecutions.
Paul Blomfield
I thank the Solicitor General for his admirably brief reply. He will know that despite claims of the highest number of convictions ever, convictions for rape, domestic abuse and other sexual offences have fallen. I work closely with Sheffield Rape Crisis, which tells me that there is a real postcode lottery in support for victims, and if victims are not supported they are less likely to come forward. What discussions has the Solicitor General had with the Home Secretary to ensure adequate funding for sexual violence advisers?
The Solicitor General
With regard to the hon. Gentleman’s specific question, I work regularly with colleagues in the Home Office to look at a wide range of measures that need to be put in place to give support to victims of sexual offences. I remind him that in terms of absolute volumes, conviction rates continue to rise and are the highest ever. I assure him that the CPS has now engaged 102 specialist prosecutors in its RASO—rape and sexual offences—units to place proper priority on the swift and effective prosecution of these serious cases.
Crispin Blunt (Reigate) (Con)
In our enthusiasm to get convictions where they are deserved, can the Solicitor General make sure in his discussions with the Home Office that other parts of the system, particularly the police, do not lose their commitment to justice, and that, while they must owe a proper duty to the complainant, they should not simply ignore potential exculpatory evidence in their investigations?
The Solicitor General
I reiterate that the police should follow the evidence wherever it leads. There should be no presumptions of truth or otherwise and they should objectively and fairly investigate cases before presenting them to the Crown Prosecution Service.
Joanna Cherry (Edinburgh South West) (SNP)
Is the Solicitor General aware that Scotland’s conviction rate for rape and sexual offences has increased significantly over the past few years as a result of setting up a centralised national sexual crimes unit in Edinburgh, in which the specialist prosecutors oversee the prosecution of all sexual crime across Scotland? I am sure that Scotland’s Law Officers would be very happy if England’s Law Officers wanted to visit and learn more about it.
The Solicitor General
I am grateful to the hon. and learned Lady for raising that matter. The scale involved in England and Wales is slightly bigger, so they have taken the regional unit approach, but I entirely agree with her about the need to standardise practice. The Attorney General and I are always very conscious of that in our conversations with the Director of Public Prosecutions and the chief executive of the Crown Prosecution Service, and work is being done to improve that standardisation.
Jo Stevens (Cardiff Central) (Lab)
In the latest thematic review of rape and serious sexual offence units, the CPS inspector found that the care given to victims of rape and sexual assault
“fell well short of what is expected”.
Is the Solicitor General concerned by Kevin McGinty’s findings that in some areas the CPS has stopped giving early investigative advice to the police because resources are overstretched?
The Solicitor General
I remind the hon. Lady that that report related to a particular period from a year to 18 months ago, and since then the CPS has taken huge strides both in increasing the number of prosecutors and in improving the methods by which cases are assessed and managed.
Rebecca Harris (Castle Point) (Con)
6. How many times the Law Officers referred a criminal sentence to the Court of Appeal for review on the grounds that it was unduly lenient in the last year.
Jack Lopresti (Filton and Bradley Stoke) (Con)
11. What steps he plans to take to improve the level of public understanding of the legal framework applicable to social media.
The Solicitor General (Robert Buckland)
There is clearly some awareness of the legal framework applicable to social media, but I publish warnings online reminding people of their responsibilities wherever appropriate. My office also sends tweets warning social media users of the risk of being in contempt, where a particular problem has been identified. I assure my hon. Friend that I am always looking at ways of raising awareness in this area.
Jack Lopresti
Can my hon. and learned Friend explain what steps are being taken to prevent media coverage of ongoing cases?
The Solicitor General
The media quite properly play a role in reporting cases, but any lack of responsibility allows my office and, indeed, criminal law to intervene, particularly in respect of the Contempt of Court Act 1981. Detailed guidelines on the prosecution of such cases are available on the CPS website.
Serious Fraud Office: Bryan Evans
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The Solicitor General (Robert Buckland)
It is a great pleasure to serve under your chairmanship, Sir Roger. I pay warm tribute to my hon. Friend the Member for Gower (Byron Davies), who brings his case to the House with passion as not only a constituency Member of Parliament but a former senior police officer, with a degree of insight into the matters we are discussing. I think he would agree that the thrust of his speech, which I listened to carefully, dealt with issues relating to the police, their involvement in this case and—I will put this neutrally—the lack of positive progress made for his constituent, Mr Evans.
My hon. Friend asked some specific questions, in particular why the police refused to seek a production order from the bank. Of course, I am aware that Mr Evans complained to South Wales police about the outcome of the original investigation, and that its professional standards department is currently investigating that complaint, which I very much hope will be concluded. It would be inappropriate for me to comment on the merits of that, or indeed the merits or otherwise of the case. From what I have heard, however, it must be a deeply troubling and huge problem for Mr Evans. Stepping into his shoes for a moment, I can understand why he feels as he does.
As one of the Ministers with a superintendary role over the independent Serious Fraud Office, it is important, in the context of the debate, that I outline as succinctly as I can the principles and guidelines that the SFO applies in determining whether to embark upon an investigation and a prosecution. As I said, having an independent agency is vital, bearing in mind the constitutional importance of having an independent prosecutorial authority, but I remind hon. Members that the SFO was created under an Act of Parliament—the Criminal Justice Act 1987—to deal with the top tier of serious and complex fraud cases. We know the sort of cases that the director, David Green, has taken on—cases such as Rolls-Royce, GlaxoSmithKline and Tesco, to name but a few. They are high-profile and high-risk, involving huge sums of money, great numbers of victims or species of fraud. That is not to understate the seriousness of the loss that my hon. Friend’s constituent has suffered.
The Solicitor General
I am grateful to my hon. Friend for that intervention, and I listened with interest to his earlier intervention and that of the hon. Member for Ogmore (Huw Irranca-Davies). I know the point he is making, and the straight answer is that the SFO keeps the matter very much under review. If there is indeed a cumulative effect and a clear modus operandi that suggests widespread and similar frauds of this nature, the circumstances will clearly change.
To answer directly the question that the hon. Member for Ogmore asked, I do not quite think we are there yet, but let me explain further—I know he is very familiar with this issue, because he has asked written questions, to which he will get very swift answers, I promise. However, he gives me the opportunity to outline the statement of principle.
The decision by the director of the SFO on whether to launch an investigation has to be made on the facts and circumstances of each case. Being overly prescriptive would not be appropriate, bearing in mind the unique circumstances of every case. Many factors are taken into account, but for guidance, the statement of principle sets out that when considering cases for investigation, the director will consider the following: first, whether the apparent criminality undermines UK plc commercial or financial interests in general and in the City of London in particular, causing reputational damage to the country; secondly, whether the actual or potential financial loss involved is high; thirdly, whether actual or potential economic harm is significant; fourthly, whether there is a significant public interest element; and finally, whether there is a new species of fraud.
“That is not a tick-box exercise where, if every one of a set of measures is met then the SFO will open an investigation. That would inevitably lead to cases being taken on by the SFO which did not require its unique model of investigators, prosecutors and other professionals working together in one organisation or its set of powers.”
I will quote from the “Protocol between the Attorney General and the Prosecuting Departments”, which sets out that the decision for the SFO to investigate and prosecute is
“a quasi-judicial function which requires the evaluation of the strength of the evidence and also a judgment about whether an investigation and/or prosecution is needed in the public interest.”
That will not always be an easy decision, but for the vast majority of financial crimes, the traditional model of a police investigation and a Crown Prosecution Service prosecution is the best model. That is because the police, as my hon. Friend the Member for Gower knows, rightly have primary responsibility for investigating crime in this country, and Action Fraud has been established as the national reporting centre to which reports of alleged fraud should be referred in the first instance.
I repeat that the SFO’s role is limited to investigating and prosecuting cases of serious or complex fraud, so it cannot and should not take on every case referred to it. To give that some context, the SFO takes on between 10 and 20 cases each year. It receives nearly 3,000 reports of fraud directly from the public each and every year, so the vast majority of referrals are not about matters that it can properly investigate. Complainants are then advised that the complaints will be referred on to Action Fraud for dissemination to the relevant police force where appropriate.
The SFO retains the material and uses it for intelligence purposes, and that is the point that hon. Members have made. That intelligence material is part of the SFO’s work in building an intelligence picture, and through that information and material it can properly identify the top-tier cases that are appropriate for it to investigate. In other words, debates such as this are invaluable in bringing into the public arena information that can then be collated and properly reviewed. I said that to the hon. Member for Ogmore in September and I repeat that assurance today.
Alex Cunningham (Stockton North) (Lab)
My constituent, Michael Fields, who has suffered, is part of a large network of people—I know he has been touch with the Minister personally. The Minister talks about not being quite there yet. Do we know how far off we are? Are we halfway up the hill? Have we much further to go? That network is working hard to identify other people who are similarly affected, to try to build the critical mass that may well lead to consideration of the matter by the SFO.
The Solicitor General
I know that the hon. Gentleman raised that point in an intervention in the September debate, so he has consistently advocated on behalf of his constituent. It would be wrong of me to start prejudging or second-guessing what the independent prosecutorial authority should do—that would be inappropriate—but I can tell him that the co-ordinated work that he, his constituent and other similarly affected people do, of course, improves the intelligence picture. It cannot do anything but assist the authorities in understanding the true extent of frauds of this nature, so I am grateful to him.
Huw Irranca-Davies
The Solicitor-General is giving a very helpful answer. Is he struck, as I am, by the incredible system similarities between the case outlined today by the hon. Member for Gower (Byron Davies) and the case that my hon. Friend the Member for Cardiff Central (Jo Stevens) and I outlined? The parallels between the two cases are incredible, and I know of at least half a dozen more out there that other Members of Parliament have raised.
The Solicitor General
I have heard the hon. Gentleman and my hon. Friend the Member for Gower. Although I do not want to start making evidential judgments about similar fact evidence, I take the point.
In the brief moments I have left, I turn to the specific allegations that my hon. Friend has made today. It is, of course, unusual to comment in detail on specific allegations, but I want to say a few brief words about the case.
As has been explained, Mr Evans had obtained a secured loan from the bank in relation to a land development in 2007 on the basis that the land would be turned into a mixed leisure development. It was valued accordingly at between £4 million and £6 million. However, by 2009, due in part to some planning permission issues, the development had not been carried out. The bank appointed a receiver and the value of the land, which was security for the loan, was reassessed and subsequently put at the dramatically different figure of £1 million. The allegation is that this was an orchestrated devaluation by the bank and the receiver.
The reason why the SFO has not opened a formal investigation relating to Mr Evans’s allegations is that they do not, of themselves, amount to the type of matter that the SFO is there to investigate. That is not to minimise the seriousness of the allegations. The situation would have a significant impact on most of us if it happened to us, but in the context of the SFO criterion, the potential scale of the loss is somewhat limited and the allegations are not complex. They relate to one surveyor falsifying a valuation on behalf of a bank, and therefore I have to be honest and frank and say that the issue of the wider public interest does not actually apply, so the situation would not call for an SFO investigation.
However, as I have said, the SFO will keep the allegations and the information that it has received on file, and will consider the matter again if further information comes to light. In particular, given the points that hon. Members have made today, if there is evidence to suggest that the allegation is part of a more widespread issue, the matter will be revisited.
I hope that what I have said gives my hon. Friend the Member for Gower some assurance that the Serious Fraud Office has fully considered the allegations referred to it and will consider any further evidence, but, for perfectly proper reasons, at this stage has decided not to investigate the allegation.
Question put and agreed to.
Oral Answers to Questions
Robert Buckland Excerpts(8 years, 10 months ago)
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Mr Robin Walker (Worcester) (Con)
1. What recent steps the Crown Prosecution Service has taken to ensure that prosecutors are able more effectively to prosecute cases of domestic abuse.
The Solicitor General (Robert Buckland)
Crown Prosecution Service legal guidance on domestic abuse was updated ahead of the introduction of the new offence of coercive or controlling behaviour in intimate and familial relationships. To support the introduction of that guidance, training has been developed and made available to prosecutors.
Mr Walker
I thank my hon. and learned Friend for that answer. Women’s groups in Worcester and national campaigns such as Women’s Aid have warmly welcomed the new law of coercive control as a real step forward in the protection of victims. Does he anticipate a further rise in the number of domestic abuse cases coming to court as a result of that change in legislation?
The Solicitor General
I pay tribute to all those groups that do so much to support male and female victims of domestic abuse. Yes, I think we can expect a rise in prosecutions. There has been a similar precedent in the case of stalking and harassment offences, which were introduced several years ago, and I was proud to be the Minister who took the coercive control provisions through this House.
Andrew Gwynne (Denton and Reddish) (Lab)
Given that conviction rates for rape, domestic abuse and other sexual offences have fallen in the past year, what reassurances can the Solicitor General give to the House that further budget cuts will not damage attempts to secure justice for the victims of those crimes?
The Solicitor General
The hon. Gentleman makes a proper point. Conviction rates for domestic violence remain broadly flat, but the volume of convictions continues to increase, which is good news for every single victim. For example, rape convictions now exceed 2,500 a year, whereas there were only 2,000 some five years ago. I assure him that the CPS, in the light of the comprehensive spending review settlement, is placing continued priority on rape and serious sexual offence units, and no prosecution will be prevented as a result of any budget problem.
Alex Chalk (Cheltenham) (Con)
The strength of the victim’s evidence in a domestic violence trial can often depend on recalling recollections as close in time to the incident as possible. Does the Solicitor General agree that we should consider allowing victims to record evidence remotely, perhaps via an app on their phones, rather than having to flog off to a police station?
The Solicitor General
Like my hon. Friend, I am always enthusiastic about the sensible use of new technology. Police in London are already piloting body-worn cameras, which capture the immediacy of events of domestic abuse. That sort of technology needs to be very much part of the tools available to police officers when investigating such cases.
Jim Shannon (Strangford) (DUP)
I thank the Solicitor General for his responses so far. Domestic violence accounts for about a fifth of all crime in Northern Ireland, with police officers attending 60 domestic incidents a day. That is massive, but we still have problems with people failing to come forward, particularly men. Is the CPS considering taking steps to work alongside police forces to encourage people to report all domestic incidents?
The Solicitor General
I am very grateful to the hon. Gentleman for raising the issue of male victims. About 15% of domestic abuse victims are, indeed, men, and proper emphasis is being placed on the need to encourage men to come forward. It is not a badge of shame for someone to admit that they are a male victim of domestic abuse, and that message needs to be heard loud and clear throughout the length and breadth of the kingdom.
Jeff Smith (Manchester, Withington) (Lab)
2. Whether he has had discussions with the Prime Minister on the legal form of the UK’s renegotiation deal with the EU.
James Berry (Kingston and Surbiton) (Con)
3. What recent steps the Director of Public Prosecutions has taken to improve co-ordination between prosecutors and police in the handling of cases involving sexual violence.
The Solicitor General (Robert Buckland)
To ensure a consistent approach to the investigation and prosecution of rape cases across all CPS areas, a joint CPS and police national steering group and a delivery board have been established, and they meet regularly.
James Berry
What assessment has my hon. and learned Friend made of the CPS’s action plan to improve the investigation and prosecution of rape and sexual assault? Does he agree that the publication of the action plan demonstrates the willingness of this Government and of the CPS to increase the number of prosecutions in those areas?
The Solicitor General
I agree with my hon. Friend. The publication of the plan shows a very clear line of intent. That is reflected in the increased volumes of prosecutions, and in the careful consideration given to any withdrawal of prosecution cases before a jury has properly considered them.
Jessica Morden (Newport East) (Lab)
5. What recent discussions he has had with the Secretary of State for Environment, Food and Rural Affairs and the Director of Public Prosecutions on the role of the national wildlife crime unit in increasing conviction rates for wildlife crime.
The Solicitor General (Robert Buckland)
The Crown Prosecution Service’s senior wildlife champion and the head of the national wildlife crime unit work together closely and regularly discuss policy and casework issues. Both parties sit on the partnership for action against wildlife crime, which is chaired by the Department for Environment, Food and Rural Affairs.
Jessica Morden
Does the Solicitor General agree that if conviction rates for wildlife crime continue to increase, it is crucial that the Government commit to funding the national wildlife crime unit not just for a year or two, but as part of a much longer-term wildlife crime strategy?
The Solicitor General
In the year from July 2014 to June last year, the overall conviction rate was 71%, which compares favourably with other types of crime. There were 605 defendants prosecuted, with 349 entering guilty pleas. The decision on the funding of the wildlife crime unit will be made very shortly.
Rebecca Pow (Taunton Deane) (Con)
In my constituency and in the wider south-west, the wildlife crime unit plays a crucial role, particularly in cracking down on poaching, but also in protecting hares, other precious creatures and birds’ eggs. If the unit were disbanded, there would be no one else to step into its shoes, so I urge the Solicitor General to think carefully before withdrawing what does not amount to very much funding for so much valuable work.
The Solicitor General
I hear what my hon. Friend says, as I am sure do DEFRA Ministers. With about £1.7 million of funding since 2010, the unit has indeed played an important role in the prosecution of these serious offences. As I said, a decision on funding will be made very soon.
Tom Elliott (Fermanagh and South Tyrone) (UUP)
Does the Solicitor General feel that there is enough protection in current legislation not only for wildlife, but for individuals who are involved in rural sports?
The Solicitor General
Britain has led the world in legislation that criminalises acts of cruelty against wildlife and that relates to the protection of wildlife. While the relevant laws are in place, they will be properly enforced and prosecutions will be applied using the tests that prosecutors have to use, following the evidence wherever it leads them.
Judith Cummins (Bradford South) (Lab)
6. What discussions he has had with the Director of Public Prosecutions on the consequences of the Law Officers’ Department’s spending review settlement for the Crown Prosecution Service’s operations.
Mr David Hanson (Delyn) (Lab)
10. What recent steps the Crown Prosecution Service has taken to improve the conviction rate for rape and domestic violence.
The Solicitor General (Robert Buckland)
The CPS has taken a number of steps to improve the conviction rate for rape and domestic violence abuse cases, including refocusing resources to strengthen the rape and serious sexual offences unit’s extensive training on rape cases for prosecutors, an update of domestic abuse legal guidance, and closer working with the police.
Mr Hanson
That is all very well, and I am grateful for the Minister’s reply, but it will not hide the fact that the conviction rate for rape has fallen by 5.6% in the last four years, and is now just over 56%. The conviction rate for domestic abuse has also fallen. Clearly, something is happening, and I would welcome the Minister’s view of what that might be, and a clear indication of what action he will take to increase conviction rates, particularly for rape.
The Solicitor General
The right hon. Gentleman has taken a long interest in this matters, and he is right to raise those issues. I remind him that the volumes of outcomes continue to increase to their highest ever levels. I have mentioned rape, but domestic violence outcomes have also increased dramatically to their highest ever levels, which means justice for thousands more victims. It is incumbent on the CPS to examine the reasons why prosecutions do not succeed, and the key for the Attorney General and me is to ensure that the prosecution does not bring charges and then drop them without good reason. It should allow such cases to go to a jury, so that juries and magistrates can make decisions.
Michael Fabricant (Lichfield) (Con)
May I take a slightly contrary view? As we all know, about a year ago a colleague of ours was found innocent of rape, and more recently a young student was also found innocent of rape. It is important that the Crown Prosecution Service does not prosecute people lightly, and if it thinks that a person is innocent, it should ensure that they are not prosecuted.
The Solicitor General
I assure my hon. Friend that in every case the prosecution must apply the test of a reasonable prospect of conviction, and of whether that prosecution is in the public interest. That should apply to everybody, whether they are in this House or any other part of the country. There must be equality before the law, and the evidence must be followed wherever it leads.
Jo Stevens (Cardiff Central) (Lab)
Despite what the Solicitor General has said, conviction rates for rape, other sexual offences and domestic abuse have all fallen, and the Government need to do far more to reduce the incidence of those offences, as well as more to support victims. Last year the Labour party made a manifesto commitment to legislate with a violence against women and girls Bill, just as the groundbreaking Welsh Labour Government have done. The Bill would include provisions to appoint a commissioner to set minimum standards to tackle domestic and sexual violence. Will the Government do the same?
The Solicitor General
First, may I warmly welcome the hon. Lady to her position? It is a pleasure to see her. Indeed, we worked together for many years in the south Wales legal fraternity.
The Government are absolutely committed to funding the combating of violence against women and girls. A cross-ministerial group, of which I am a member, meets regularly, and we have introduced new legislation to criminalise coercive control. We have enhanced the tools the police and the prosecution have at their disposal, which is why the number of prosecutions for domestic abuse and rape continues to rise.
Mr David Burrowes (Enfield, Southgate) (Con)
14. What discussions he has had with the Secretary of State for Communities and Local Government on the effect of the Supreme Court ruling of 13 May 2015 on local authorities’ ability to meet their legal duties towards people facing homelessness.
The Solicitor General (Robert Buckland)
I have to observe the proprieties of the Law Officers’ convention, but the Government welcome the clarity the judgment provided. It explains that any assessment of vulnerability must be made in the round, looking at all aspects of a person’s situation.
Mr Burrowes
A rough sleeper is likely die by the age of 47. Homeless people are inherently vulnerable. Can the Solicitor General assure me that, as the law currently stands, a safety net is provided for vulnerable and homeless people who are unintentionally homeless?
The Solicitor General
I commend my hon. Friend for the considerable work he has done on this issue, both in the capital and generally. The Government intervened in that case precisely because they were concerned that the test would disproportionately affect vulnerable homeless people. I am glad the Supreme Court has rebalanced the law in what I think is a fair way.
Serious Fraud Office (Contingencies Fund Advance)
Robert Buckland Excerpts(8 years, 10 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Solicitor General (Robert Buckland)
I would like to inform the House that a cash advance from the Contingencies Fund has been sought for the Serious Fraud Office (SFO).
In line with the current arrangement for SFO funding agreed with HM Treasury, the SFO will be submitting a reserve claim as part of the supplementary estimate process for 2015-16.
The advance is required to meet an urgent cash requirement on existing services pending parliamentary approval of the 2015-16 supplementary estimate. The supplementary estimate will seek an increase in both the resource departmental expenditure limit and the net cash requirement in order to cover the cost of significant investigations and the settlement of material liabilities.
Parliamentary approval for additional resources of £21,137,000 (twenty one million, one hundred and thirty seven thousand pounds) will be sought in a supplementary estimate for the Serious Fraud Office. Pending that approval, urgent expenditure estimated at £15,500,000 (fifteen million, five hundred thousand pounds) will be met by a repayable cash advance from the Contingencies Fund.
The advance will be repaid upon Royal Assent of the Supply and Appropriation (Anticipation and Adjustments) Bill.
[HCWS449]
Oral Answers to Questions
Robert Buckland Excerpts(8 years, 12 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Henry Smith (Crawley) (Con)
2. What steps the Crown Prosecution Service is taking to improve the conviction rate for hate crimes against disabled people.
The Solicitor General (Robert Buckland)
The Crown Prosecution Service recently revised its disability hate crime legal guidance for prosecutors. As part of its ongoing commitment to achieving meaningful improvement in disability hate crime prosecutions, it has mandated that disability hate crime training for all prosecutors should be completed by the end of the year.
Henry Smith
What contacts have been made between disability interest groups and governmental agencies to foster a better approach to the addressing of hate crime?
The Solicitor General
I am happy to tell my hon. Friend that, along with my hon. Friend the Under-Secretary of State for Disabled People and the Minister for Preventing Abuse and Exploitation, I recently set up and took part in a ministerial round table with Government agencies and the third sector to deal with precisely that issue. We gave particular attention to issues such as victim support, the quality of reporting, and confidence among members of the disability community about the way in which the criminal justice system treats them.
Jim Shannon (Strangford) (DUP)
In October, the Police Service of Northern Ireland launched an online campaign after 44 disability hate crimes were recorded over a six-month period. Two years ago, the PSNI contacted the charity Leonard Cheshire Disability—of which the Solicitor General will know—which has set up an advocacy scheme to help disabled people to gain access to the criminal justice system. Does the Solicitor General feel that he should consider similar action?
The Solicitor General
I commend the work of Leonard Cheshire Disability. In 2012, 65,000 cases involving a disability hate element in England and Wales were recorded in the national crime survey, but there is a big gap between that figure and the number of prosecutions, and I want that to change.
Danny Kinahan (South Antrim) (UUP)
I may be bending the supplementary matter a little, Mr Speaker, but what steps is the Crown Prosecution Service taking to ensure the reliability of evidence relating to crimes allegedly committed 30 to 40 years ago?
Catherine McKinnell (Newcastle upon Tyne North) (Lab)
The sad reality is that hate crime is a growing problem. A young Muslim woman, Ruhi Rehman, was racially abused when travelling on the metro in my home town of Newcastle on Saturday. Thankfully, her attacker was chased off by outraged passengers, but not everyone is fortunate enough to have “Geordie angels”. More than 27% of prosecutions for hate crimes are currently failing because of victim issues, a significant rise since 2010. Do the Government share my concern that victims are being let down, and that serious crimes are going unpunished as a result?
The Solicitor General
I am grateful to the hon. Lady for raising that case. When I attended a hate crime training conference at the College of Policing a few weeks ago, not only disability hate crime but the type of hate crime to which she has referred was very much on the agenda. She will be glad to know that the CPS is enhancing training for all the leaders in their regions, which I think will result in a renewed emphasis on the need to make victims confident that the system will work for them rather than against them.
Lucy Frazer (South East Cambridgeshire) (Con)
3. What assessment he has made of the importance of communications data in securing prosecutions.
Nusrat Ghani (Wealden) (Con)
5. What steps the Crown Prosecution Service has taken to enable its prosecutors effectively to prosecute stalking and harassment cases.
The Solicitor General (Robert Buckland)
The CPS launched a joint stalking protocol with the police in September 2014, and has revised its legal guidance to prosecutors and delivered training on the new stalking offences, which led to a 15.1% rise in the level of prosecutions last year. The CPS continues to work closely with the police and voluntary sector to increase and improve prosecutions.
Nusrat Ghani
The national stalking helpline responded to 2,800 calls last year and frequently speaks to victims of stalking and harassment where restraining orders are not given or where ineffective restraining orders are given following a trial. It already takes the average victim 100 incidents of harassment before they go to the police. Does my hon. and learned Friend agree that stalking and harassment are serious offences that can lead to serious sexual assault and violent offences, including murder? What more can be done to address this serious and often hidden problem?
The Solicitor General
My hon. Friend is right to emphasise the seriousness of stalking—it is no joke—and I join her in commending the work of the organisation she mentioned. The CPS legal guidance on this crime urges prosecutors to apply for restraining orders on conviction and, where appropriate, on acquittal too. It is vital that we deal with this serious crime in a way that protects victims and deters perpetrators.
Antoinette Sandbach (Eddisbury) (Con)
There is concern that the new stalking provisions are not being used and that harassment provisions are being used instead. Will my hon. and learned Friend indicate that the seriousness of the offence should be reflected in the use of stalking charges rather than harassment charges?
The Solicitor General
My hon. Friend speaks with experience from her practice in criminal law. I was a member of the all-party group on stalking and harassment, together with Mr Elfyn Llwyd, the former Member for Dwyfor Meirionnydd, and we said then it was vital that the law be used to its full extent. There is a non-exhaustive list of types of stalking behaviour. This means that prosecutors and the police should be looking at such cases in a wide way and applying the full extent of the law wherever appropriate.
Jeff Smith (Manchester, Withington) (Lab)
6. What discussions he has had with his ministerial colleagues on developing proposals for reform of the Human Rights Act 1998.
Stephen Phillips (Sleaford and North Hykeham) (Con)
10. What estimate he has made of the annual cost to the public purse of avoidable errors by the Crown Prosecution Service.
The Solicitor General (Robert Buckland)
The CPS does not maintain a central record of the number or value of wasted costs orders, but I can tell my hon. and learned Friend that the total value of costs awarded against the CPS in the last financial year, of which wasted costs orders are a mere subset, amounted to just over £1 million, which was about 0.18% of overall expenditure.
Stephen Phillips
I am grateful to my hon. and learned Friend for that answer. Terry Boston, a solicitor in my constituency, said the following in an email to me last week:
“I am becoming more and more concerned about justice in this country. The reason for this is the blatant failure of the CPS and their one line cover all excuse, ‘We are short of staff.’”
I appreciate, as does Mr Boston, that savings have had to be made, but can my hon. and learned Friend assure the House that the CPS does have sufficient staff in place, both nationally and in Lincolnshire, to perform its functions?
The Solicitor General
I am grateful to my hon. and learned Friend for his question. I can assure him that the CPS does indeed have sufficient staff in place to properly do its work. The CPS conviction rate in his region last year was 84.2%, which is slightly higher than the national average.
Michael Fabricant (Lichfield) (Con)
11. What steps the Crown Prosecution Service is taking to improve the conviction rate for anti-Semitic hate crimes; and if he will make a statement.
The Solicitor General (Robert Buckland)
New CPS legal guidance for prosecutors on anti-Semitic hate crimes was published in May, and in addition the CPS is implementing its religiously aggravated and anti-Semitic crime action plan, which seeks to raise awareness of these cases and to improve the reporting of such hate crimes. This has been welcomed by the all-party group against antisemitism.
Michael Fabricant
My hon. and learned Friend will be aware that the incidence of anti-Semitic hate crime is going up, particularly in Muslim areas, unfortunately. Can he expand a little further on his earlier answer about the role of the CPS in educating the police on these matters?
The Solicitor General
I pay tribute to my hon. Friend for the consistent work that he has done over the years to highlight that obscene crime. I am sad to say that there are spikes in that type of offending when particular political events occur. The CPS is aware of it, as are the police, and that type of hate crime was very much on the agenda of the national training conference at Ryton.
Immigration Bill (Fourteenth sitting)
Robert Buckland Excerpts(9 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Solicitor General (Robert Buckland)
On a point of order, Mr Owen. This morning I assured the hon. Member for South Shields that a letter would be written. It has indeed now been sent to you and Mr Bone. I hope that that will answer some of the queries that she raised in debate some sittings ago.
Keir Starmer
I am grateful to the Minister for those assurances. I wonder aloud how long that immunity provision, however long-standing it is, can survive. The idea that people are immune from criminal law in that way is hard to reconcile with later legislation, but that is a much bigger argument than the one we are having now. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 109, in schedule 8, page 114, line 17, leave out “detain” and insert “retain”.
This amendment and amendments 110 and 112 are minor drafting changes for consistency with language used elsewhere in the Schedule and have no substantive effect.
Amendment 110, in schedule 8, page 118, line 40, leave out “detain” and insert “retain”.
See the explanatory statement for amendment 109.
Amendment 111, in schedule 8, page 122, line 6, leave out “(in England and Wales or elsewhere)” and insert “in the United Kingdom”.
This amendment is a minor drafting change for consistency with the language used in the equivalent provisions for England, Wales and Scotland.
Amendment 112, in schedule 8, page 123, line 17, leave out “detain” and insert “retain”.—(James Brokenshire.)
See the explanatory statement for amendment 109.
Schedule 8, as amended, agreed to.
Clause 37 ordered to stand part of the Bill.
Clause 38
English language requirements for public sector workers
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clauses 38 to 45 deal with the question of English language requirements for public sector workers.
I will deal with the subsections of clause 38 in turn. Subsection (1) sets out the requirement for public authorities to ensure that each of their workers in customer-facing roles speak fluent English. I know you will have an interest in this, Mr Owen: clause 43 provides specifically that where there are statutory duties in Wales, the requirement includes fluency in English and in the language of heaven. All members of the public who access public services need to be able to understand the information provided and be confident that their needs are thoroughly understood. Ensuring that that is the case will not only create better and more efficient services for taxpayers but will contribute to meeting our manifesto commitments to promote British values, in a positive and appropriate way.
Subsection (2) will require all public authorities to have regard to a code of practice when deciding how to comply with the duty set out in subsection (1). Of course, public authorities will have an opportunity to help shape that code of practice by responding to the open consultation that has been live since 13 October and will run until early December. Copies of the consultation documents have been placed in the Library of the House.
Subsections (3) and (4) will require each public authority to operate a complaints procedure. Citizens must, of course, be able to report their experience of a customer-facing worker not speaking fluent English. Public bodies must consider and respond to those complaints.
Subsections (5), (6) and (7) explain that a worker in the scope of the duty will be someone working under a contract of employment or of apprenticeship with a public authority, as a contractor to do work personally for a public authority, as an agency worker or as a police officer, civil servant or member of the armed forces. Speaking with members of the public must be a “regular and intrinsic part” of their role.
Keir Starmer
There is some concern that such a clause could operate in a discriminatory manner, with complaints and assumptions being made about what is fluent English and who is able to speak fluent English. Will the Solicitor General give an assurance that effective measures will be put in the code or elsewhere to ensure that any potential discriminatory effects and consequences are mitigated or eliminated?
The Solicitor General
I can give the hon. and learned Gentleman several assurances. First, in assessing the potential discriminatory impact of the clause, the consultation process is an important part of allowing Government to understand precisely what the pressures might be. I also assure him that the standards of fluency will be assessed by the employer. The draft code of practice already contains welcome indicative standards for what various qualifications mean in terms of English fluency. Therefore, within the interview and selection process, there will be systems in place that can be deployed to deflect some of the more specious complaints that might be made. There will be an objective standard rather than a somewhat fluid situation, which I am sure he agrees would be wholly unsatisfactory.
I was going to deal with the basic definition of fluency that will underpin the code of practice. Subsection (8) explains that for the purposes of the Bill,
“a person speaks fluent English if the person has a command of spoken English which is sufficient to enable the effective performance of the person’s role.”
Therefore, it follows that employers will have to satisfy themselves of that criterion among the others that they might deploy in seeking persons to fill vacancies for customer-facing jobs. Subsection (9) clarifies that the requirement to speak fluent English applies to existing workers and new members of staff. Finally, subsection (10) provides that the clause does not apply to those who work for public authorities where work is carried out mainly or wholly outside the United Kingdom.
The code of practice will be an important part of fulfilling our commitment, and it will assist public authorities to comply with every aspect of the new duty. I commend the clause to the Committee.
Anne McLaughlin (Glasgow North East) (SNP)
Part 7 of the Bill, which comprises clauses 38 to 45, is completely unnecessary and unworkable. It will have negative consequences, whether intended or not; I have some difficulty coming to a conclusion on that one. Perhaps when the Minister speaks later, it will be easier for me to do so. It goes against the wider measures advocated by the Government in the Bill. I will argue those points in turn, but I hope that the Committee will allow common sense to prevail and scrap this part of the Bill.
It is clear that the clauses are unnecessary from the overwhelming lack of evidence from the Government or anyone else that legislation is required. Page 25 of the explanatory notes state that clause 38 is being introduced in order
“to improve the quality of service provided by public authorities, such as the NHS and the police”.
The question is surely why those professionals have not demanded such legislation themselves. I note the submission from the British Medical Association stating that doctors must already pass the international English language testing system to a level set by the General Medical Council or provide evidence to the equivalent. If the Committee does not agree to scrap part 7 of the Bill, will the Minister provide assurances that it will not result in duplication?
The fact is that part 7 in its entirety is merely a duplication of what any employer asks of an applicant: do they have the skills for the role? I challenge any Member here to tell me whether they know of any firefighters turning up to save our lives who have to bring an interpreter with them, or whether any of them have visited a GP and had to explain their symptoms in mime because the GP does not speak English. It simply does not happen. Many of my constituents have terrible problems with the Department for Work and Pensions. I was of the view that that was due in the main to unfair policies, but I had not considered that it is perhaps because the Government employ people who do not speak the language of this country. I have never heard of that, and have never experienced it.
That point is made eloquently by the Royal College of Nursing, which argues against duplicating and undermining the standards being developed by the Nursing and Midwifery Council. That is what it is: an undermining of professional bodies. The fact remains that it is professionals, not Ministers, who have a sophisticated understanding of the level of English required for professional roles. The RCN states:
“We question whether it would be appropriate for ministers to set out standards rather than professional regulators, such as the NMC, as is currently the case.”
Far be it from me to argue for lighter-touch regulation to a Tory Government, but the professionals themselves are safeguarding public services, so it is difficult to envisage a Minister, of whatever party, devising a more sophisticated practice-led assessment of language skills than the professional bodies representing the public sector. The Government are fond of saying that they are fixing the roof while the sun is shining, but here they are putting a leaky tin roof in place of one that functions. Like much of the Bill, regardless of our respective opinions on the rights and wrongs, these provisions simply do not make sense.
Anne McLaughlin
Thank you, Mr Owen. Discrimination has increased following the trial of the right-to-rent provisions, which has led to people being judged not to look or sound British and to their having increased difficulty finding accommodation. The exact same prejudice will now face those working in the public sector, with people who sound as if they are not from Britain at risk of spurious complaints and victimisation.
Our public sector workers are doing increasingly difficult work, thanks to the Government’s cuts agenda. They are often working with fewer resources and taking on more responsibilities. It does not take a genius to see that this will be stressful for the worker and for those using the service, nor does it take a particularly high IQ to imagine that a disgruntled and stressed-out member of the public may take out their frustration with their situation on a member of staff. If that person is obviously an immigrant, there is a risk that complaints will be brought against them on the grounds of language ability—a complaint that would then have to be investigated. All that does is waste time and money, and increase the stress levels of everyone involved.
I have seen it myself. I have been in a GP surgery where I heard people muttering about the African receptionist—“Could they not get somebody who can speak English?”—when she was speaking perfectly good English, since it was her first language, as it is for many people coming to this country. All that was different about her was the colour of her skin and her accent. Now those racist mutterings can be turned into formal complaints—[Interruption.] Yes, they can. The Government are legitimising that racism instead of tackling it head on. If I am wrong about the intentions, will the Minister tell us if and how he will assess the implementation of this part of the Bill? If he does not intend this part of the Bill to have such consequences, and if he does in fact care but does not believe that my fears are founded, will he at least consider the possibility that I might be right, assess this at a later stage and be willing to review it if necessary?
Part 7 makes it much more difficult for genuine migrants to integrate. It places a ludicrous burden on public agencies at a time when the Government are asking them to tighten their belts. It punishes those who have come here legally and are trying to get on and contribute to this society. Part 7 legitimises the rantings of racists, who will say, “Well, there is obviously a problem or the Government wouldn’t have to have a law to stop it.” In fact, it goes against much of what people believe the Tory party stands for—not me, incidentally, but some people. Part 7 certainly goes against the principles of the Scottish National party, and I urge all Members to reject clauses 38 to 45.
The Solicitor General
I would like to say that this debate has created more light than heat, but I am afraid that I cannot do so. With the greatest of respect to the hon. Lady, people such as the receptionist she mentioned will be protected by these provisions, safe in the knowledge that they have fulfilled the criteria set out in the code of practice. They have nothing to fear from people who, through racism or prejudice, may wish to make specious claims. I wholly reject her prospectus.
Anne McLaughlin
If the Minister is saying that that receptionist will be protected against spurious complaints, does he mean that nobody is allowed to make a spurious complaint? If so, will it be decided that a complaint is spurious before the receptionist is informed? The stress levels suffered by someone who has had an unlawful complaint made against them are just as bad as they would be if the complaint were founded.
The Solicitor General
I am sorry, but the hon. Lady acknowledged that several parts of the public sector have basic proficiency requirements in place. I am afraid that all of us in a public sector role, including everyone in this building and elsewhere, will be the subject of complaints from time to time. Some of those complaints might be wholly justified; others will not be justified. I do not accept for one minute that these provisions will increase the culture of fear that she has colourfully, but wholly erroneously, painted. She is right to say that some parts of the public sector have minimum standards of English for their staff. The provision underpins and widens that duty so that the rest of the public sector is brought into line with those who are leading the way and being proactive.
Anne McLaughlin
I thank the Minister for giving way—I appreciate it. Which parts of the public sector employ people who do not speak English in a public-facing role? I have listed all the possibilities, but I have never experienced it, and I have seen no evidence that anyone here has experienced it.
The Solicitor General
I am grateful to the hon. Lady for sharing her anecdotal experiences, but the Home Office has done pre-consultation modelling, based on the proportion of over-16s in employment in the public administration, education and healthcare sectors according to 2011 census data—those are important, objective, statutory data obtained from the British population. According to that modelling, about 3.6 million employees are within the scope of the proposed duty and about 1.5 million employees in Great Britain, excluding Northern Ireland, are subject to English language standards, so an extra 2.1 million employees will be newly affected by the duty. We anticipate that between a low of 8,500 workers and a high of 25,000 workers may not have the required standards of English fluency. There is objective evidence upon which we can base this policy.
The policy is not designed suddenly to change the game or somehow create a wholly new structure that will alter the balance and change societal attitudes towards people who have a heavy accent. I include myself in that—I know the hon. Lady is as proud of her accent as I am proud of mine. We are seeking to standardise and enhance the position of people who have come to this country to work and who might have a different ethnicity or background. They will be employed under the same objective criteria that will be applied to everybody else in the public sector.
The Solicitor General
I will give way in a moment, but first I want to read a highlighted extract from the draft code of practice consultation relating to complaints. I hope that it will help the hon. Lady. Paragraph 4.5 says:
“Public authorities are not obliged by this Code of Practice to respond to complaints that are vexatious, oppressive, threatening or abusive. These should be given their usual dictionary meaning and could be defined as those complaints that are without foundation and/or which are intended to result in harsh or wrongful treatment of the person referred to in the complaint. In these types of circumstances a complaint should not be allowed to continue.”
I commend that paragraph to the House.
Keir Starmer
In so far as the measures extend the existing duties on public authorities to consider the requirement in the first place, they do not go much further than the existing position, but I think that the hon. Lady is pointing at the complaints procedure, which the Minister just touched on. Will he assure the Committee that the only complaints that the provision is intended to open up are complaints against the public authority for failing to carry out its duties, and not complaints made about an individual? That would give a considerable degree of assurance that there is no intention for the measures to allow anyone to say, “I am complaining about X,” when what they are really complaining about is public authority Y, which has not done its job properly. There is a big difference in terms of how the complaints procedure would then be used.
The Solicitor General
I can confirm that paragraph 4.1 of the draft code says:
“This section of the Code is about the procedure a public authority should take should there be a complaint regarding a breach of the fluency duty.”
That means a complaint against the public authority for having breached that duty. There are no sanctions in part 7 that could be applied directly to staff. As I said, it is a duty for the public authority.
Keir Starmer
This is an important point. Can the Minister write to us on that specific issue? It also arises from clause 41(2)(c), according to my reading; I think that he would provide assurance if he wrote to the Committee—to me and other hon. Members—to say that that is the intention of the complaints procedure. One can see the scope otherwise for concern about complaints.
The Solicitor General
I understand entirely, and I am happy to do so. I assure the hon. and learned Gentleman and any Committee members concerned about consequences for staff that dismissal would be a matter extremely far down the line in these procedures. We are talking about improving systems. That does not entail an ad hominem attack on individuals; it is about the public authority and any perceived failure on its part.
Keir Starmer
I am grateful for the assurance about frivolous and other vexatious complaints. I know from having 9,000 staff of my own that what causes great anxiety is the fact that a complaint has been made to the individual, even if some weeks or months down the line it might be ruled out. If a number of complaints are made about a particular member of staff, that will increase anxiety hugely. The greater the clarity that the Minister can give here, the better. For a member of staff, simply knowing that a complaint might be knocked out in three months does not affect the anxiety that they feel when doing in their job.
The Solicitor General
I take point made by the hon. and learned Gentleman, and that made by the hon. Member for Glasgow North East. I will write to the Committee, as I have indicated.
On the question of bureaucracy, the measures take a minimalist approach. The code of practice will guide public authorities to align their actions regarding the new duty with existing practice. We expect a minimal expansion to existing procedures to suffice. Our open consultation will allow any concerns about bureaucracy to be raised and taken into account.
Anne McLaughlin
Does that mean that the British Medical Association, for instance, will be allowed to make its own assessment?
The Solicitor General
The hon. Lady has mentioned a body that operates its own minimum standards. I envisage that where organisations are already doing that work, it will be a fairly easy task for them to satisfy a code of practice, but again, I would be interested to hear what they have to say as part of the consultation. I am sure that the intention is for dovetailing in any expansion of the duty, so that we standardise it across the whole public sector, thanking those particular outliers for being proactive in the area.
Keir Starmer
Again, this is by way of seeking assurance. This discussion is in the context of an Immigration Bill, but the measures will cover all individuals. Can the Minister give an assurance that careful consideration will be given to how the measures apply to individuals with any kind of learning or speech difficulty, regardless of background, ethnicity and so on? There is the potential for impact on people who fall into those categories. I know that that is not the intention, but we would gratefully receive a high level of assurance.
The Solicitor General
I am happy to give that. From my own understanding and experience of such issues, I am extremely keen to ensure that people who are fluent but who might, due to disability, express themselves slightly differently, are not discriminated against in any way.
On the question of setting a single standard, again, to enlarge the point that I was making, because the public sector has such a broad range of customer-facing roles, whether they be heart surgeons or parking enforcement officers, different particular standards will be appropriate. Therefore, the code will guide public authorities to set a standard that is proportionate to the nature of the spoken interaction that is an integral part of each role. To reinforce the point that I just made to the hon. and learned Gentleman about discrimination, public authorities, like all employers, are prohibited from discriminating against members of staff and job applicants by the terms of the Equality Act 2010, under which disability is a protected characteristic. Of course that will be relevant to individuals with a speech impediment.
Anne McLaughlin
I appreciate the Minister letting me butt in so often. He has said that there is a public duty under equalities legislation not to discriminate against a potential employee, but discrimination happens and we know that it happens. It is far harder for someone to find a job if they are black; basically, it is much more difficult. The Committee has heard most of my fears, but my fear on this is that is that, just as landlords feel that they will discriminate whether they really want to or not, these measures will make employers more fearful of employing somebody who might get complaints against them because of language—not because they cannot speak the language fluently, but because they sound and look different. It will make it even harder for people to find employment. All the equalities legislation in the world is only useful if people know how to use it and have the resources to use it.
The Solicitor General
I hear the hon. Lady, but I must remind her that we are talking about public authorities, which have had to, quite rightly, adapt their practices to take into account legislation such as the Equality Act 2010, which consolidated and enhanced a number of other statutes passed over a generation or more, which in turn dealt with racism, disability discrimination and so on. They were Acts of Parliament passed by all parties in this House. I would be as distressed as she if a public authority misused in any way what I would submit are the benign duties in the clause to reverse the progress that we have made. It is not about whether somebody looks or sounds different; it is about basic standards of proficiency and fluency that will improve public services.
Keir Starmer
I apologise for adding to the shopping list of assurances, but it is done, I hope, in the right spirit and with concern that is shared across the House. This problem might have been addressed, but there must be some public authorities that use sign language for some of those deemed to be customers or service users. Those fluent in sign language may not in fact be able to speak fluent English. Perhaps there is an obvious answer to this—if there is, I apologise—but the words “speaks fluent English” in clause 38(8) cause me some concern. There may be an easy reassurance. If there is, I will be assured.
The Solicitor General
I am grateful to the hon. and learned Gentleman for raising an issue in which I take a personal interest—the use of British sign language and other means for deaf people to participate in all aspects of our mainstream life. To parenthesise for a moment, I am sure that he would be interested in the work that I am doing to explore why deaf people cannot serve on juries, for example. It seems to me wholly ridiculous, but that is the position at the moment. Perhaps we can talk about that offline.
A British sign language interpreter is of course arguably a reasonable adjustment that is provided under an employer’s duty towards staff with a disability under the Equality Act 2010. That would be part and parcel of a person’s work; so to use it as a basis for suggesting lack of fluency would be wholly wrong and self-defeating. It is important to remember that people with disabilities, with reasonable adjustments, increasingly form part of the mainstream workforce. The provision is not designed to cut across that.
I think we all benefit from the fact that people with different ethnic origins work in our public services. Whatever they sound like and wherever they are from we welcome them all; but it is important—and they would agree—that we make sure there is a basic standard, to ensure that all sections of society have the fullest confidence in our public services. The measure goes a long way to protect our public servants.
Paul Blomfield (Sheffield Central) (Lab)
I concur with the point that the Solicitor General makes, but I did not necessarily recognise the figures he gave earlier as a description of the problem. They were census data, which did not necessarily relate to the issue. However, let us assume that there is a problem. Is the Minister not concerned that what he wants to do will be undermined by the cuts of the order of 30% in the adult skills budget since 2010, which have had a direct impact on the courses in English for speakers of other languages that give people precisely the skills he is looking for? In the spirit of his proposals will he make representations to his colleagues in the Department for Business, Innovation and Skills to increase that budget?
The Solicitor General
At this stage what I will say is that those points need to be fed into the consultation, so that in the code of practice we get objective standards for fluency absolutely right. I note from the code of practice that there is a helpful table in the draft suggesting the stages of proficiency that can be equated with various qualifications, such as GCSEs, GCE A-levels or NQFs.
The hon. Gentleman makes an interesting point, which I would argue needs further discussion. I hope that if, when the code of practice is finalised, the issue he raises is causing problems, that will be reflected in a system that, while still objective, will include an understanding that fluency can sometimes be measured in a non-academic way, which would therefore need to be built into any assessment such as a written test or other proficiency test conducted by the employer or prospective employer when interviewing candidates for a job. That could be an objective standard.
Anne McLaughlin
Is not that the same as allowing the employers to follow their current recruitment processes and make the judgment themselves? If things are going to be that vague, why do not we just continue to allow employers to make the assessment themselves?
The Solicitor General
What we are doing is making sure that the practice spreads. Indeed, some employers do it already; but we think that the duty would spread it throughout the public service. The hon. Lady may well be right; normal assessment processes may be perfectly sufficient. Examples might be a spoken interview or the choice to require an applicant to answer a detailed interview question in English or Welsh, or to possess a relevant qualification, or pass a specifically tailored competency test. It is not a matter of heavy prescription.
The Opposition cannot have it both ways. On one level, they are telling us that they are concerned that the proposals will be too bureaucratic, and on another, when I suggest that this is in fact, more flexible, they ask what the point is. There is a point: it is all about spreading best practice through all levels of public service.
The Solicitor General
The clause sets out which public authorities must ensure that each of their workers in customer-facing roles speak fluent English or, in Wales, fluent English or Welsh. Hon. Members will understand that it is important to define the scope of the duty as broadly as possible so that we make sure that all members of the public receive advice, help and support in fluent English or Welsh, regardless of the nature of the public service.
Subsection (1) defines public authorities as any organisation that carries out functions of a public nature. Subsection (2) clarifies that that does not include other bodies that carry out functions on behalf of a public authority. For example, it excludes a private company that appears to the customer to be part of the local council’s services even though the service is actually provided by an independent organisation through a contract with the local authority. Subsections (3) and (4) clarify that this duty will apply in Scotland only if a public authority exercises functions which relate to a reserved matter.
Subsection (5) limits the scope of the bodies included in this duty very slightly to exclude the security services, the Secret Intelligence Service and the Government Communications Headquarters. Subsection (6) provides that a relevant Minister may add, modify or remove the name of a body in relation to this list. The term “a relevant Minister” is defined in clause 44 to include either the Secretary of State or the Chancellor of the Duchy of Lancaster. The regulation-making power to amend the list of public authorities must be done in accordance with the provisions that relate to regulations in clause 53.
That brings me to Government amendments 37 to 39. These technical amendments ensure that clause 53 applies to regulations made by either the Secretary of State or the Chancellor of the Duchy of Lancaster under part 7.
Question put and agreed to.
Clause 39 accordingly ordered to stand part of the Bill.
Clause 40
Power to expand meaning of person working for public authority
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clause 40 provides a power to make regulations to expand the meaning of a person in respect of whom this duty applies. Should the relevant Minister—the Minister of the Cabinet Office or the Chancellor of the Duchy of Lancaster—choose to make such regulations, the duty would apply to customer-facing staff of contractors and subcontractors delivering a public service through an arrangement with a public authority. To comply with the statutory duty in clause 38, public authorities need to have regard to the code of practice to ensure that the customer-facing staff of these organisations, as well as their own directly engaged staff, meet the language standard.
Public authorities need to make sure, first, that the standard of fluency applied is proportionate to the nature of each customer-facing role; and secondly that their complaints process allows citizens to report their experience of a customer-facing worker employed by such organisations who is not speaking fluent English. Hon. Members will be aware from our previous debate about the consultation that is now live that respondents are asked explicitly for their views on the impact of expanding the scope of the duty to the staff of private and third-sector suppliers. We will publish those views as part of the Government response to the consultation. However, any expansion of this duty to apply to the staff of private and third-sector providers of services will involve separate consultation before any regulations are made.
Question put and agreed to.
Clause 40 accordingly ordered to stand part of the Bill.
Clauses 41 and 42 ordered to stand part of the Bill.
Clause 43
Application of Part to Wales
Anne McLaughlin
I beg to move amendment 246, in clause 43, page 39, line 23, at end insert—
‘(4) This Part does not apply to Scotland.”
I have set out why I do not want this measure to be part of United Kingdom legislation, so this is really just to make the argument that if the rest of the United Kingdom does, indeed, want it—I have set out the different experiences of Members in the different countries—then it should not stand in Scotland.
The Solicitor General
I gently remind the hon. Lady that the title of clause 43 is “Application of Part to Wales”. I see the point she is making, so I do not want to make too lawyerly a point, but the provision relates to Wales rather than Scotland.
The purpose of the hon. Lady’s amendment is to exclude Scotland from the whole of part 7. Subsections (3) and (4) of clause 39—the governing clause of this part of the Bill—provide that the requirement for customer-facing public sector workers to speak fluent English applies in Scotland only to the extent that a public authority exercises functions related to a reserved matter.
Hon. Members may not be aware of a letter sent on 3 November from the Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights in the Scottish Government, Mr Alex Neil, to my right hon. Friend the Minister for the Cabinet Office and Paymaster General. In that letter, Mr Neil acknowledges that this part of the Bill will only apply to reserved matters, and we agree that any further extension into devolved matters would require a legislative consent motion.
I am grateful to Mr Neil and his team for the work that has been done with members of the British Government and the discussions with Scottish Government officials that have resulted in this proposal. I am also grateful to him for instructing his officials to ensure that the Cabinet Office received every support in understanding the landscape of the reserve public sector in Scotland. Such lines of contact have been established, and indeed the consultation continues. For all those reasons, I very much hope that the hon. Member for Glasgow North East will withdraw the amendment.
Anne McLaughlin
On a point of clarification, Mr Owen. Being a new MP and a new member of the Committee, I am a bit confused by the gentle reminder that the Minister gave me. Amendment 246 says:
“This Part does not apply to Scotland.”
I am not entirely sure what the Minister was referring to when he mentioned Wales—I am just looking for a bit of guidance on that. Do we have different pieces of paper?
The Solicitor General
As alluded to in the previous debate, clause 43 sets out how part 7 will apply to public authorities exercising functions of a public nature in Wales. I am grateful to the Clerk to the Committee for confirming my understanding that the clause title is not an amendable part of the Bill but an indicative description of the clause.
James Brokenshire
Let us look at the provisions. Paragraph 12 of the new schedule amends the Local Government (Miscellaneous Provisions) Act 1976 as follows:
“In section 62(1) (suspension and revocation of operators’ licences) before the “or”…insert…“…that the operator has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty”.
The point is that that will be a matter of established fact. The terms are further defined in proposed new section 79B of the 1976 Act, which is inserted by the new schedule, and defines immigration offences and immigration penalties. The measures will be embedded within the overall framework of the licensing arrangements. If the relevant local authority were, for example, to seek to revoke or suspend a licence, a legal process would no doubt be followed. The point is that it would be made clear whether an operator had been subject to these specific measures, because of the nature of the definitions.
The fit and proper person test is built in. It takes place when someone is applying for a licence. Immigration offences are a clear factor that will have to be weighed in any determination of whether someone is a fit and proper person. If someone does not have the right to be here, the new provisions make it clear that they should not be considered a fit and proper person. That is how we are embedding the measures within the existing process. We believe their operation can be effected smoothly. We will issue guidance, as I have already indicated, to assist local authorities in the implementation of the provisions.
This is a question of raising standards, to ensure that abuse does not take place within the sector. These are positive and important new provisions, which will see immigration enforcement agencies working with local authorities—something that, as I have indicated during our discussions, I strongly support. If we can get our activities embedded well, in places where immigration enforcement officers may come across intelligence and information, we can work smartly with other agencies such as local authorities to raise standards more broadly and root out abuse and rogue operators. The measures are important and distinct, and will, we hope, not only deal with immigration offending and people who are in the country unlawfully and engaging in employment or contracts for services, but raise standards in the sector more generally.
Question put and agreed to.
New clause 14 accordingly read a Second time, and added to the Bill.
New Clause 15
Supply of information to Secretary of State
‘(1) Section 20 of the Immigration and Asylum Act 1999 (supply of information to Secretary of State) is amended in accordance with subsections (2) to (10).
(2) For the heading substitute “Power to supply information etc to Secretary of State”.
(3) In subsection (1) for paragraphs (a) to (f) substitute—
“(a) a public authority, or
(b) any specified person, for purposes specified in relation to that person.”
(4) In subsection (1A) in each of paragraphs (a) and (b) for “a person listed in subsection (1) or someone acting on his behalf” substitute “a public authority or someone acting on behalf of a public authority”.
(5) After subsection (1A) insert—
“(1B) This section does not apply to—
(a) information which is held by the Crown Prosecution Service, or
(b) a document or article which comes into the possession of, or is discovered by, the Crown Prosecution Service, or someone acting on behalf of the Crown Prosecution Service,
if section 40 of the UK Borders Act 2007 applies to the information, document or article.”
(6) After subsection (2A) insert—
“(2B) Subsection (2A)(a) does not affect any other power of the Secretary of State to retain a document or article.”
(7) In subsection (3) after paragraph (d) insert—
“(da) anything else that is done in connection with the exercise of a function under any of the Immigration Acts;”.
(8) After subsection (3) insert—
“(3A) “Public authority” means a person with functions of a public nature but does not include—
(a) Her Majesty’s Revenue and Customs,
(b) either House of Parliament or a person exercising functions in connection with proceedings in Parliament,
(c) the Scottish Parliament or a person exercising functions in connection with proceedings in the Scottish Parliament,
(d) the National Assembly for Wales or a person exercising functions in connection with proceedings in that Assembly, or
(e) the Northern Ireland Assembly or a person exercising functions in connection with proceedings in that Assembly.”
(9) Omit subsection (4).
(10) After subsection (6) insert—
“(7) Nothing in this section authorises information, a document or an article to be supplied if to do so would contravene a restriction on the disclosure of information (however imposed).”
(11) After section 20 of the Immigration and Asylum Act 1999 insert—
“20A Duty to supply nationality documents to Secretary of State
(1) This section applies to a nationality document which the Secretary of State has reasonable grounds for believing is lawfully in the possession of a person listed in Schedule A1.
(2) The Secretary of State may direct the person to supply the document to the Secretary of State if the Secretary of State suspects that—
(a) a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and
(b) the document may facilitate the removal.
(3) A person to whom a direction is given must, as soon as is practicable, supply the document to the Secretary of State.
(4) If the document was originally created in hard copy form and the person possesses the original document, it must be supplied to the Secretary of State unless it is required by the person for the performance of any of the person’s functions.
(5) If the original document is required by the person for the performance of any of the person’s functions—
(a) the person must, as soon as is practicable, supply a copy of the document to the Secretary of State, and
(b) if subsequently the person no longer requires the original document, the person must supply it to the Secretary of State as soon as is practicable after it is no longer required.
(6) Subsection (5)(b) does not apply if the Secretary of State notifies the person that the original document is no longer required.
(7) If subsection (5) applies the person may make a copy of the original document before supplying it to the Secretary of State.
(8) The Secretary of State may retain a nationality document supplied under this section while the Secretary of State suspects that—
(a) a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and
(b) retention of the document may facilitate the removal.
(9) Subsection (8) does not affect any other power of the Secretary of State to retain a document.
(10) The Secretary of State may dispose of a nationality document supplied under this section in such manner as the Secretary of State thinks appropriate.
(11) Nothing in this section authorises or requires a document to be supplied if to do so would contravene a restriction on the disclosure of information (however imposed).
(12) The Secretary of State may by regulations amend Schedule A1 so as to add, modify or remove a reference to a person or description of person.
(13) Regulations under subsection (12) may not amend Schedule A1 so as to apply this section to—
(a) either House of Parliament or a person exercising functions in connection with proceedings in Parliament,
(b) the Scottish Parliament or a person exercising functions in connection with proceedings in the Scottish Parliament,
(c) the National Assembly for Wales or a person exercising functions in connection with proceedings in that Assembly, or
(d) the Northern Ireland Assembly or a person exercising functions in connection with proceedings in that Assembly.
(14) In this section “nationality document” means a document which might—
(a) establish a person’s identity, nationality or citizenship, or
(b) indicate the place from which a person has travelled to the United Kingdom or to which a person is proposing to go.”
(12) In section 166 of the Immigration and Asylum Act 1999 (regulations and orders)—
(a) after subsection (5) insert—
“(5A) No regulations under section 20A(12) which amend Schedule A1 so as to—
(a) add a reference to a person or description of person, or
(b) modify a reference to a person or description of person otherwise than in consequence of a change of name or transfer of functions,
are to be made unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.”, and
(b) in subsection (6), before the “or” at the end of paragraph (a) insert—
“(ab) under section 20A(12) and which falls within subsection (5A),”.’
(13) Before Schedule 1 to the Immigration and Asylum Act 1999 insert the Schedule A1 set out in Schedule (Duty to supply nationality documents to Secretary of State: persons to whom duty applies).”—(The Solicitor General.)
This amendment expands the information gateway in section 20 of the Immigration and Asylum Act 1999 for the voluntary supply of information to the Secretary of State for immigration purposes. It also places a duty on authorities listed in new Schedule A1 to that Act (see NS2) to supply nationality documents to the Secretary of State where directed to do so.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss Government new schedule 2—Duty to supply nationality documents to Secretary of State: persons to whom duty applies.
The Solicitor General
The new clause expands the existing information gateway in section 20 of the Immigration and Asylum Act 1999 for the voluntary supply of information to the Secretary of State for immigration purposes. It also places a duty on the authorities listed in new schedule 2 to supply nationality documents to the Secretary of State where directed to do so.
At the moment, in addition to common-law data-sharing powers, section 20 of the 1999 Act allows for information and articles from specified public authorities, such as the police and the National Crime Agency, to be supplied to the Secretary of State for immigration purposes. We would like to ensure that other public authorities that may find themselves in possession of information or documents that may be used for immigration purposes have clear statutory authority to pass those to the Home Office. The new clause will ensure that any public authority, other than those expressly excluded, may provide information and documents to the Secretary of State for immigration purposes, should it wish to do so.
We also want the Secretary of State to be able to require the provision of nationality documents that are lawfully in the possession of specified public authorities. That power would be exercisable where the Secretary of State suspects that a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts and that the document may facilitate the removal.
I want to make it abundantly clear that the new clause does not require the listed bodies to collect data or information on behalf of the Secretary of State or to seize documents from people, as it applies only where the Secretary of State has reasonable grounds for believing that a document is already lawfully in a body’s possession—that is to say, that it holds the document for the purposes of its functions.
To give an example, a person may be arrested for overstaying his visa in the UK. Immigration officers search his home for a passport or other documentation that will help with obtaining an emergency travel document from his embassy. They do not find it, but they do discover a letter to him from his local council. An immigration officer can then contact the council and ask whether it has taken a copy of that person’s passport or ID card, or a record of the number. Under the new powers, if the council has such a document, the immigration officer may direct that it is sent to the relevant immigration team. If the council confirms that it does not have such a document, there is no further action for it to take.
In a nutshell, we believe that it is important that the public sector works together to achieve effective immigration control. For those reasons, I ask that new clause 15 and new schedule 2 stand part of the Bill.
Question put and agreed to.
New clause 15 accordingly read a Second time, and added to the Bill.
New Clause 16
Detention etc. by immigration officers in Scotland
‘(1) Section 26B(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (interpretation of Part 3) is amended as follows.
(2) In the definition of “immigration offence”—
(a) after “means” insert “— (a)”, and
(b) at the end of paragraph (a) insert “, or
(b) (insofar as it is not an offence within paragraph (a)) an offence under the Immigration Acts or in relation to which a power of arrest is conferred on an immigration officer by the Immigration Acts;”.
(3) In the definition of “immigration enforcement offence”, omit paragraph (a).’—(The Solicitor General.)
This amendment ensures that the Scottish powers of detention prior to arrest and of arrest without warrant apply to all immigration offences contained in, or for which an immigration officer has a power of arrest under, the Immigration Acts. It ensures consistency in the immigration-related criminal investigation powers of immigration officers across the United Kingdom.
Brought up, and read the First time.
The Solicitor General
I beg to move, That the clause be read a Second time.
The aim of new clause 16 is to ensure that there is consistency in the immigration-related criminal investigation powers of immigration officers across the United Kingdom. As I have mentioned in this Committee, we have been involved in a dialogue with the Scottish Government to ensure that this clause, as with others in the Bill, will enable immigration officers to work effectively within the Scottish criminal justice system.
In England, Wales and Northern Ireland, a person may be arrested and interviewed in accordance with the Police and Criminal Evidence Act 1984 or the Police and Criminal Evidence (Northern Ireland) Order 1989 until a decision is made on whether they should be charged with the offence. In Scotland, that differs to the extent that in most circumstances, a suspect can currently only be questioned if they are detained but not yet arrested. Once the suspect is arrested, the general rule is that they cannot be questioned. That means that immigration officers in Scotland cannot properly investigate immigration-related offences for which they have a power of arrest under the Immigration Acts, but do not have the power to detain pending arrest.
Immigration Bill (Eleventh sitting)
Robert Buckland Excerpts(9 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Solicitor General (Robert Buckland)
Clause 31 deals with the important issue of rights of appeal relating to persons who claim to have a right to remain in the United Kingdom on asylum or human rights grounds, but whose claim has been refused. It has long been established that, in some cases, a person can be removed and deported before an appeal is brought or heard. Indeed, the previous Labour Government introduced powers in 2002 to certify claims that were defined as “clearly unfounded” such that persons bringing unfounded claims could be removed before bringing their appeal. That was extended to deportation in 2007. Then, in 2014, it was extended further so that arguable claims from foreign national offenders could also be certified when deportation pending appeal would not be in breach of that person’s rights under the European convention on human rights or the rights of any other person affected by the decision.
The context is important in this debate, because the proposed change builds on the success of previous alterations, which have represented an incremental approach. The 2014 framework was recently confirmed in the Court of Appeal—we will no doubt explore some of the issues relating to that judgment in due course. The changes have had a positive operational impact, with the accelerated deportation of hundreds of foreign criminals, which is why one of this Government’s manifesto commitments was to remove the limitation that the power can be used only for those subject to deportation—mainly criminals—so that all individuals who have sought but been refused a right to remain in the UK on human rights grounds can be removed more swiftly. Clause 31 delivers on that commitment. It is our policy to ensure more effective removals and to prevent people whose applications have been refused from remaining in the UK and potentially accruing article 8 rights after it has been decided that they have no right to be here.
The power to certify that an appeal must be brought from overseas when that would not breach human rights was introduced in the Immigration Act 2014 for persons liable to deportation—largely foreign national offenders, as I suggested a moment ago. Subsections (2), (3) and (6) of clause 31 extend the scope of the existing power to all human rights claims. Importantly, the power will not apply to asylum claims, meaning that all asylum appeals, except those that are clearly unfounded, will continue to be heard in the UK. The certification power cannot be used in cases when removal pending appeal would create a real risk of serious, irreversible harm or other breach of human rights, such as when there is a claim under article 2, the right to life, or article 3, freedom from torture and inhuman or degrading treatment. We are largely dealing here with cases that relate to article 8 and to a person’s family or private life. I emphasise that each case will of course be assessed on an individual basis, taking into account the impact of certification on family members, including children.
The power will not normally apply to unaccompanied children. Many unaccompanied children make asylum claims anyway, so this power is irrelevant to them. When an asylum claim is refused, a child will be granted leave until they are 18 years of age, unless adequate reception arrangements are in place for their return to their home country. When a child has been in the UK for seven or more years, they can be granted leave to remain on the basis of their private life rights when it would not be reasonable to expect them to leave the UK.
Paul Blomfield (Sheffield Central) (Lab)
The Solicitor General is at pains to point out that the power would not normally be used on children, so I guess that he has taken account of the evidence that we received from the Children’s Society and others expressing such concerns. Why have the power at all if it is not intended to be used?
The Solicitor General
It is envisaged that the power could be used on certain occasions in the case of a much older child or young person. Particular circumstances could allow, on a case-by-case basis, a particular resolution, but it is envisaged that in the vast majority of cases that would not apply and it would be exceptional if it did.
Paul Blomfield
Will the Solicitor General clarify that point? We are straying into the territory of our previous debate, on how to define age. He said “much older”. What does he consider to be much older? Where does that threshold kick in?
The Solicitor General
We are talking about the 18-month period between 16 and a half to 18 years of age. That is the period we are dealing with. I have already made the point about age in previous debates, but I will develop the point I was making just now. For example, if a 17-year-old who lives in the UK with members of their wider family has made a human rights claim to stay that has then been refused, and if they have parents or family in another country to whom they can return and successfully establish their life there, these provisions might apply. To develop the general point about the interests of children, the welfare of children will continue to be a primary consideration in decisions by virtue of statute under section 55 of the Borders, Citizenship and Immigration Act 2009, so each case will be assessed depending on individual circumstances.
Keir Starmer (Holborn and St Pancras) (Lab)
The Solicitor General is dealing with a very important point and reassuring us that an assessment will be made, particularly when it involves children, but how precise will that assessment exercise be? How will the detailed circumstances be ascertained and what is the remedy if it is thought that a wrongful decision has been made?
The Solicitor General
The hon. and learned Gentleman has hit upon the more general point about successful appeals. It is wrong to assume that the reason for the number of successful challenges to Home Office decisions lies fairly and squarely at the door of the Home Office and any failures that it might exercise in using its discretion. We have due process, and he will of course be aware that when an applicant makes an application, they should do everything they can to provide the fullest evidence and information about their situation at the earliest opportunity. I would think that evidence about the welfare needs of children would be at the forefront of any applicant’s mind, or the minds of those who are instructed to represent them. It is therefore vital—this is a good opportunity for me to put this on the record—that everybody involved in such proceedings understands that early reliance on comprehensive evidence is essential if we are to avoid the issues that the hon. and learned Gentleman rightly raises.
On the handling of children’s cases, revised guidance has now been published following the recent Court of Appeal judgment, which we are well aware of, and is now available on the gov.uk website.
Keir Starmer
It may be my fault for not expressing myself clearly enough, but in relation to the assessment of the impact on a child who is required to appeal from abroad—which is a different assessment from the ordinary assessment of an impact on a child—how is that to be conducted? What is the guidance? For example, does the guidance say more than six months for a child under 10? Is separation from a parent acceptable or unacceptable? What is the guidance for the decision maker if they are presented with two children under 10 and a possible separation of six to 12 months? Are they told that that is okay or not okay?
The Solicitor General
The hon. and learned Gentleman has asked a specific question about the wording of the guidance. I am at a slight disadvantage because I do not have it to hand. It might be that I can get a response to him about that. However, guidance that goes into huge prescriptive detail on time limits or time indications is not really guidance. Guidance must give decision makers discretion and allow them to look individually on a case-by-case basis.
The Solicitor General
I will finish this point, then the hon. and learned Gentleman can by all means intervene again.
I want to give the Committee an example about individual circumstances. An example of where the welfare of a child might make a case unsuitable for certification by the Secretary of State is if the individual whose article 8 claim has been refused is acting as the primary carer for a child, even temporarily—for example, if the child’s parents had separated and the parent who is normally the primary carer is unavailable to take care of the child temporarily and the other parent is caring for the child while their appeal is being determined. In that example, welfare issues clearly come into play.
In each case, individuals will be asked to provide any reasons why the power should not be applied in their circumstances, which will be fully considered. Of course, they will be able to challenge the decision to certify; we must not overlook that important point. The decision to certify is an administrative decision that can be challenged by judicial review.
Keir Starmer
I want to probe the question of guidance. The Solicitor General’s example is of a primary carer. Unsurprisingly, it is not thought a good idea to certify in those circumstances—that case makes itself. The Children’s Commissioner published a report about a month ago about the impact of different rules, including the rules about the income requirement that must be met before a spouse can join a family, which focused on the impact on the child of not having access to one parent for months, and sometimes years. Has the Solicitor General or the Department taken those findings into account? They seem to be pertinent here, given the impact on a child of not having contact with one parent for a prolonged period.
The Solicitor General
The hon. and learned Gentleman makes a powerful point, but those sorts of considerations can be taken into account by the decision maker.
I now have to hand the guidance on the Nationality, Immigration and Asylum Act 2002 issued by the Home Office. The latest version is dated 30 October, so it is fresh off the printing press. The section 55 duty is described in paragraphs 3.6 to 3.8 inclusive, which I will read for the record:
“When considering whether to certify a human rights claim pursuant to section 94B, the best interests of any child under the age of 18 whom the available information suggests may be affected by the deportation decision must be a primary consideration.”
That is a very helpful start.
“Case owners must carefully consider all available information and evidence to determine whether or not it is in the child’s best interests for the person liable to deportation to be able to appeal from the UK. This is particularly relevant in considering whether deportation pending appeal would cause serious irreversible harm to the child. The case owner must also consider whether those interests are outweighed by the reasons in favour of certification in the individual case, including the public interest in effecting deportation quickly and efficiently.”
That is the balancing exercise in a nutshell.
Paragraph 3.7 might help the hon. and learned Gentleman:
“Case owners must carefully assess the quality of any evidence provided in relation to a child’s best interests. Original, documentary evidence from official or independent sources will be given more weight in the decision-making process than unsubstantiated assertions about a child’s best interests or copies of documents.”
Paragraph 3.8 states:
“For further guidance in relation to the section 55 duty, see…Section 55”.
It also contains links to an introduction to children and family cases and to criminality guidance for article 8 ECHR cases. I think that is a helpful encapsulation of the balancing exercise that decision makers have to carry out.
Keir Starmer
I want to explore that guidance. For clarity, if the assessment states that there will be serious harm to the child, but it would not be irreversible, that suggests that the decision maker would go ahead with the decision and certify. Is it right that the harm has to be serious and irreversible?
The Solicitor General
The hon. and learned Gentleman is right to read the words in that way. We do not have the words “and” or “or”—we are back to “and” or “or”. He and I like these arguments because they are important; we do not indulge in them for the sake of semantics. However, what I am referring to is guidance, so it takes a different form from primary legislation or secondary legislation. It allows decision makers to get clear in their minds what the balance should be. There is a public interest in swift and efficient deportation. The party that the hon. and learned Gentleman represents had no issue with the principle when it introduced this power or when it was extended in the 2014 Act, so that principle is something on which he and I can agree.
Keir Starmer
I am grateful to the Solicitor General for setting out the provisions of clause 31 in detail. The clause is a wide extension of the powers that I accept already exist in relation to a limited class of individuals and will now cover very many people who are appealing their cases. I urge the Government to consider the impact, particularly on children, of separation in these and similar circumstances.
I have already mentioned the report by the Children’s Commissioner. I appreciate that the context is slightly different in that usually in those cases the spouse is already abroad, but the report gives powerful testimony about the impact on children of being unable to have any meaningful contact with one of their parents for a prolonged period. I do not think that has been assessed and taken into account in the guidance that has just been mentioned, because the timing probably would not have allowed that, but such separation should be considered and taken into account, and there should be a proper impact assessment of the existing remove first, appeal afterwards provisions.
We can dance around article 8, and we can argue as lawyers about whether or not that article has been breached, but among the most powerful points in the Children’s Commissioner’s report of a month ago were the human stories of the impact of suddenly depriving a child of one of their parents for a prolonged period. The report contained stories of children who were highly distressed because their father or mother was no longer available to them for contact for a prolonged period. Some of those families came to the launch and gave their evidence.
Sometimes we need to step out of these Committees and step out of our lawyerly, political selves. I am the father of a four-year-old and a seven-year-old. I heard those families describing what it was like trying to get their children to bed—the crying and distress during month after month of separation. In some cases it may well be that article 8 is breached and in some it may not be, but that is highly distressing for the children, and as a father I found it highly distressing to hear their testimony. I thought about what I would feel if I were separated from my children, whom happily I see nearly every day, for just a week or two. We should not lose sight of the idea of being separated for six months or a year because it does not tick the box of crossing a threshold into article 8, or any other legal provision. This measure will have a profound impact on human lives, and we need to approach this debate with that in mind.
The Solicitor General kindly gave us the statistic of a 42% success rate for appeals, which he puts forward as evidence that there is no obvious detriment in appeal after removal, but let us start by focusing on that figure: 42% of those removed won their appeal. So 42% of the families—if a family is involved—who suffered the human distress that I have described, whether or not there was a breach of the law, succeeded on appeal. That is an alarmingly high success rate in those circumstances.
The Solicitor General
The hon. and learned Gentleman is making a proper point about that, but we must be careful not to fall into the trap of assuming that that success rate is always due to failure by the Home Office. It is not. Very often it is due to the applicant’s failure to provide evidence that clearly would have helped in a timely way. It is not fair to keep beating the Home Office over the head for the failures of others.
Keir Starmer
I recognise some of what the hon. Gentleman has said. As he indicated, where that is a problem, it is for the professional bodies to regulate better or follow up in individual cases, and nothing that I say should stand in the way of that, but I do not want to step outside the human aspect. Ultimately, in cases where that is an issue, it is the individual who is removed who suffers as a result; if children are involved, it is the children who suffer. If an appeal is successful because bad advice was given months or years earlier and something relevant was not put before the decision maker or court, but it has come to light and been put before an appeal court, the impact on the individual who is not at fault should not be lost.
That is one difficulty with the proposed scheme for removing individuals. However, I recognise some of the picture that the hon. Gentleman has painted, and I agree that where professional follow-up can take place, it should as it would help in such cases. It is, however, also a fact that many appeals take a long time. If decision making were of a higher quality and decisions were quicker, a lot of the concern would evaporate, and we would not be debating the need for deport first, appeal later provisions.
I come to the practicability of appealing from abroad. We are familiar with the notion of a hearing in this jurisdiction. In some ways, a hearing is not dissimilar to the exchanges we have across this Committee Room, where physical human beings make submissions and listen to what is said against those submissions. Here, we have you, Mr Owen; in court, we would have a judge. That judge listens to the exchanges, takes into account the evidence and comes to a decision. Anybody who has ever been in any court of any form will know that many cases are determined through those exchanges, with the decision maker making their mind up as the process unfolds. Attention can be drawn to a particular piece of evidence, a point can be rebutted and additional evidence can swiftly be put before the court or the tribunal, if it is necessary to do so. If a judge has questions, they can be dealt with there and then by the parties.
That is how we have been doing things for 200 years —certainly in the criminal context—and it is a highly effective way of resolving differences between the parties. It is a very different experience if someone is appealing from abroad. In the first place, their submissions will probably be made in electronic or hard, written form way before the hearing. There is no prospect of the sorts of exchanges that get to the truth or resolve the critical issues between the parties. Until recently, it has been possible for some individuals to have representation in the proceedings, notwithstanding the fact that they are abroad. I have a question for the Solicitor General: if the proposed residence test for legal aid comes into force, will that effectively mean that, for this large, extended category of individuals, the prospect of any representation is gone once they are removed, unless they have private money? That is a serious consideration. That proposal would fundamentally change how the scheme operates, when taken with the proposed change before us.
The Solicitor General
I can assist the hon. and learned Gentleman there. The position on legal aid is not altered by an individual having to appeal from overseas. Legal aid is not available for article 8 appeals before the tribunal, regardless of whether the appeal is lodged from overseas or within the UK. I hear the point he makes, but the issue he raises is immaterial to the question of legal aid. He also asked about residence, and I will see whether I can get a specific response on that.
Keir Starmer
I am grateful. I realise that may not be easy, so if the Solicitor General writes to me or the Committee, I will be grateful. The question was: what impact, if any, will the proposed resident test for legal aid have on those exercising their right to appeal from abroad? I would be happy to receive the answer by way of a letter.
There is, however, a more fundamental point here. There is a very real difference between a hearing at which the individuals are present and able to deliberate and to make submissions in the way I indicated, and one where the individuals are abroad. So my next question is: what practical steps will be taken to ensure that the procedure is as effective as it can be? To break that down: what steps are being taken to ensure that evidence can be made available by way of video, using the technologies available? As I understand it—the Solicitor General will correct me if I am wrong—an individual’s ability to use technical means to appear virtually, as it were, in the courtroom depends on the courtroom being set up to receive such evidence, and not many are. It is for the individual to finance that from wherever they have been removed to and I do not think that the procedural rules for such proceedings have been amended sufficiently to allow that to happen with any great ease or regularity.
Accepting those very real differences between a live appeal and an appeal from abroad, what steps are being taken to ensure the best possible access and ability to participate by those who have been removed? That would include steps to ensure that there is an exchange of submissions, rather than just a set of submissions that are put in in the first place. In other words, how does the appellant abroad deal with the points that the tribunal wants to make as the tribunal begins to make up its mind?
Paul Blomfield
My hon. Friend makes an important point. We are talking about young people who have been through, in many cases, deeply disturbing experiences, and it is not surprising that they might not know their age. They have come from countries such as Sudan, which was one of the countries mentioned in the Home Office statistics that I referred to a moment ago. The Children’s Society states that the provisions in the Bill
“would mean that more children and young people would not be able to appeal their claim in the UK”.
It makes the point:
“Without a multi-agency best interests determination process currently in place to assess the full impact on welfare, children could be returned to countries and circumstances where they may be at risk of serious harm including sexual abuse, neglect, homelessness, violence, forced marriage”
or
“forced recruitment as child soldiers”.
We are talking about very serious circumstances, and I urge the Government to give those points the attention that they deserve.
The Solicitor General
I am extremely grateful to all hon. Members for having made the debate a considered and wide-ranging one, which is what the topic deserves. First, I say to all hon. Members who—I make no criticism—pray in aid the human element that of course they are right. We all stand here as human beings and some of us, including me, as parents. It would take a heart of stone not to recognise that, in the myriad different cases, we are dealing with people and their lives.
That is why the role of decision makers, and the discretion that they have, is so important in assessing the evidence and coming to a reasonable conclusion. We call that due process. It is something that we treasure as part of our rule of law, and it is something of which we are rightly proud. I do not believe that our proposal does anything to undermine those important principles, and I will explain why. I will not repeat everything that has been said, but I will encapsulate it in the following way. The Court of Appeal has looked at the concept of out-of-country appeals and reminded us of our duties under the European convention, and I am satisfied that the procedures that will be used will guarantee the basic and fundamental rights of fairness and due process that we are so proud of.
The hon. Member for Rotherham said that she was not a lawyer. I think we are all lawyers in this place. This is the High Court of Parliament, and we are the law makers, so she is a lawyer and I am glad to welcome her into the fold. As somebody with whom I have worked well in the past on other Bills, I know that she comes to this with an entirely appropriate frame of mind and a genuine passion for doing the right thing not only by her constituents, but by people who are either affected directly by the legislation or part of our wider community, who want to see our enforcement system working well. There is a huge public interest, which we must not forget when we deal with these matters.
Mrs Emma Lewell-Buck (South Shields) (Lab)
Sorry for backtracking, but I am a little confused by the Minister’s reference to judicial review. Many families will not have the money to pay for such reviews, so who would fund them?
The Solicitor General
I am grateful to the hon. Lady. I will get full clarification about the funding of applications in a moment and will come back to her.
If I may develop my point about the quality of decision making, several improvements have been made since 2010 in order to simplify policy and guidance. The introduction of a number of quality audit processes allows for the ongoing refinement of operating processes, which strengthens and enhances decision-making quality. The accumulation of those measures means that we now have tools and processes that help caseworkers to make more efficient, effective and fairer decisions in line with the relevant immigration rules and Home Office policy and guidance. I accept that there is still a way to go, but progress is being made.
Since 2010, UK Visas and Immigration has put in place measures to ensure the continuous review of its operations, so that proper feedback mechanisms can further improve quality and we ensure we make the right decision first time as often as possible. For example, UKVI has placed a focus on decision quality at the centre of caseworking objectives, introducing a quality objective in all caseworker objectives within performance appraisals. When it comes to ranking performance, the marking of quality assessment is an essential part of that process. Such measures are being put front and centre, which helps to answer the genuine queries and concerns of constituents, including mine.
The hon. Member for Paisley and Renfrewshire North alluded to that. I am grateful to him for asking a number of parliamentary questions—in recent hours—about statistics that he regards as important indicators of the success or otherwise of measures that have been introduced in recent years. I note that some of the questions refer both to the power relating to EEA nationals and to section 94B. I am not making a criticism, but he asks a comprehensive range of questions, and we are today purely dealing with section 94B and not EEA nationals. Replies will be provided as soon as possible, but we must take care in reading across data from foreign national offender cases to all human rights cases. I think he would accept that. The case law clearly states that public interest is stronger when it comes to criminal cases, although there is of course a clear and strong public interest in the removal of any individual who has no right to be in the UK. I promise him that he will get answers to his questions.
The hon. Gentleman made the point about the best interests of children, which he wants in the Bill. May I give him some comfort? We already have primary legislation—section 55 of the Borders, Citizenship and Immigration Act 2009—that puts children’s best interests into print and are the guiding principles for decision makers when it comes to cases involving children. That is a sufficient safeguard, together with the guidance that we have debated and discussed, which will address the legitimate issues that he raises.
The hon. Gentleman asked about the difficulty of appealing from abroad. I accept, as did the Court of Appeal, that an out-of-country appeal will be, in many cases, less advantageous to an appellant than an in-country appeal. As I have said before, article 8 does not require the appellant to have access to the best possible appellate procedure or even to the most advantageous one. It requires access to a procedure that meets the essential requirements of effectiveness and fairness. I pray in aid the statistics that the Court used and that I mentioned this morning to give Members reassurance that we are in a situation in which there is not an obvious and clear detriment to appellants, bearing in mind the entry clearance statistics, which always involve out-of-UK appeals.
Paul Blomfield
I want to seek to confirm what seemed to be an extraordinary acknowledgment from the Solicitor General that out-of-country appeals would be prejudicial to the opportunity for an appellant to make as good a case as if it were in this country. That is a fairly significant step to take, as we said in relation to people who are likely in the long term to be successful, who have committed no crime and have proper rights. So is he acknowledging that this is prejudicial to their interests?
The Solicitor General
The words I used are the words of the Court of Appeal—not as advantageous—but that does not mean prejudicial. The points that the hon. Gentleman raises are a summary of the points raised by the hon. and learned Member for Holborn and St Pancras about the process itself, which I will try to help with in due course, but there is a difference. If the Court had come to the conclusion that there was a clear gap—an injustice gap—for individuals, I am sure the decision of the Court of Appeal would not have supported the submissions made by Lord Keen, the Advocate General.
On the point raised by the hon. Member for South Shields, I will write to her and set out the position in full. The point made by the hon. Member for Paisley and Renfrewshire North about going further and using the statute to exclude children from the scope of the power is, with respect, an unnecessary step to take for the reasons that I hope I have clearly outlined about the necessary protection that children enjoy under section 55 and the guidance. I do not think that going a stage further would serve any particular purpose, however well intentioned.
The hon. and learned Member for Holborn and St Pancras raised important points. I want to try to do justice to them in turn. First, I will deal with the issue he raised about the important report by the Children’s Commissioner. I remind the Committee that the power does not represent a blanket approach. It allows caseworkers to individually consider the impact on individual children—that human element that he prayed in aid so powerfully—and the range of possible effects that a decision to certify might have.
Keir Starmer
I wonder whether that is right. As I understand it, decision makers take into account whether there is serious and irreversible harm, not the distress and anxiety that I was talking about. The Children’s Commissioner’s report gives examples of children wetting the bed, being highly distressed for weeks on end, and so on, which may not reach the test of serious and irreversible harm—I do not know. People will argue differently about that, but it is highly distressing, and it is highly distressing to hear about it. Distress will probably be taken into account, but it certainly will not enable the decision makers lawfully to determine against certification.
The Solicitor General
I caution the hon. and learned Gentleman against using the term “test” about serious, irreversible harm. We must not forget that the overall test is the article 8 test. We are talking about the guidance. Of course, there will be input from the family, and there might be input from the school and social workers. Those people are best placed to provide evidence about what the impact will be.
It is a reality in our society that many parents and children have to live separately temporarily. Many parents work away—many in this room are in that position—and many are on active service and have to spend long periods of six months or more away from their children. I do not minimise—I really do not, from my own experience—how that affects the family dynamic and the effect that that has on children, but we have to be careful not to single out that category of individuals and say their experiences are sui generis, unique or wholly different from those of other families in those circumstances.
Family separation is sometimes in the best interests of the children. I can think of examples—although not involving examinations, because they take place when children are older—involving children who need a stable term in school, perhaps because they have particular special needs. We should be proud that our country leads the world in special needs provision. I can think of examples involving children who can be supported more effectively in special needs education in the UK. I hope that gives at least some insight into the Government’s thinking on the nuances that will appear in the cases.
The hon. and learned Gentleman made a point about the process itself. He said he is concerned about the fact that the process and procedure of out-of-country appeals are different from that of the hearings that he and I are familiar with. Technology is increasingly used in our courtrooms and, as he knows, the use of virtual technology is often in the best interests of children and vulnerable witnesses, in particular. We are exhorted, and indeed mandated, through statute and practice direction to use such mechanisms increasingly to move away from the effects that what I would call traditional court proceedings can have on individuals. His point is important, but I want to put it in context.
Keir Starmer
I do not want to be misunderstood. I championed the use of digital working in our courts. There was a very good pilot in a Birmingham court for criminal cases. However, it took a lot of resource and very good modern technology to make virtual hearings as close as humanly possible to actual hearings. Is the Solicitor General able to say whether steps will be taken for similar arrangements in these cases?
The Solicitor General
I am able to give the hon. and learned Gentleman this assurance. If a person appealing from overseas submits that oral evidence is needed, an application can be made to the tribunal for evidence to be given via video link, Skype or telephone. Of course, we have specialist immigration judges who are best placed to make an informed decision about whether the quality of the evidence will be enhanced if it is given in that way. That is similar to the tests that are applied up and down the country every day, increasingly as a matter of course, when it comes to the use of TV links, for example.
Immigration Bill (Tenth sitting)
Robert Buckland Excerpts(9 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Keir Starmer
I had the opportunity when we were discussing clause 18, which inevitably included a discussion of schedule 3, to speak to the amendments. I hope the Minister heard my concerns. I do not think I will make them any stronger by repeating them.
The Solicitor General (Robert Buckland)
I am grateful to the hon. and learned Gentleman for his observations. We believe amendments 93 and 94 are unnecessary and would create a disproportionately expensive bureaucracy around the provisions. The Home Office will only share the details of migrants who are liable for removal or deportation from the UK, such as those who have exhausted all appeal rights. Those will include people who have been served with a deportation order or enforcement papers or who have absconded from immigration control. They will be fully aware of the reasons why they are considered to be disqualified people. Those who are refused permission to stay will be warned in the Home Office decision letter of the practical consequences, including for their continued ability to operate a bank account in the UK. To require the Home Office separately to actively provide them with such information in every case where their data are shared would cause delay and waste resources. Details of the individuals are already shared with the anti-fraud organisation CIFAS for the purpose of enabling banks to comply with the Immigration Act 2014 and also to assist in the prevention of fraud. The accuracy of the data is subject to rigorous checks by the Home Office before it is shared. This is reflected in the fact that the Home Office receives very few complaints or inquiries from banks or individuals regarding the current sharing of data arrangements under section 40 of the 2014 Act. Only three official complaints have been received since the Home Office started to share data with CIFAS in 2011.
Under the new provisions, the Home Office will be notified by banks when they believe that an account holder is a disqualified person. It will then carry out a further thorough check before the bank will be required to take any action to close an account. The bank will be notified if circumstances have changed and the person is no longer disqualified. This double check will act as a further safeguard to make sure that the bank acts on the most up-to-date information. Individuals whose accounts are subject to closure will be told by the bank of the reason why, provided that it is lawful to do so. If, despite all the checks, a person still considers they are lawfully present and that incorrect information has been provided, they will then be given the information they need to swiftly contact the Home Office so that any error can be rectified.
As is currently the case with data provided to CIFAS, the Home Office will be able to correct any mistake in real time so that the person’s details will immediately be removed from the data that are shared with the banks. That will be a far swifter and more effective means of correcting any error than in the process proposed in the amendment. If an account is closed, any credit balance will not be withheld from the individual, but returned to them by the bank in the normal way. In the unlikely event that an account is closed by mistake, the situation can be swiftly rectified in the way I have described without the serious consequences for the individual that have understandably been envisaged by the hon. and learned Gentleman. We believe the proposed compensation would therefore be disproportionate in the circumstances, and I invite him to withdraw the amendment.
Keir Starmer
I am grateful to the Solicitor General for his explanation and reassurance as to how it is intended the scheme will work. Would he be good enough to write to me or to the Committee, setting that out, since it is not in the Bill?
The Solicitor General
I am happy to write to the hon. and learned Gentleman. That is now on the record.
The Solicitor General
I am grateful to all the hon. Members who took part in this useful debate, which has helped to tease out some of the important issues that underline the extension of powers in this part of the Bill. I am sure that will be a common theme in our debates on subsequent amendments.
I will make it clear at the outset that while it is interesting to hear analogies between the new power and stop-and-search, this is not a stop-and-search power; it is a different type of power. It is important to draw that distinction, because while it is important to talk about tensions in communities and to understand the reality of the circumstances in which immigration officials operate, it would be wrong to hurtle helter-skelter down that route without analysing precisely what we are talking about.
We are talking about a power to ask questions of an individual that has to be based on a reasonable suspicion. It is therefore not a speculative fishing exercise and it should never be based on the random prejudice of what someone looks like. Immigration officers must comply with their duties under the Equality Act 2010. Stopping and examining individuals by means of racial profiling is not in accordance with their public sector equality duty pursuant to section 149 of the Act. They are bound, like any other public body, to stay within the law.
Paul Blomfield
As I say, we are both concerned that we get this right. Are we not playing with semantics when we say that this is not stop-and-search? We could call it stop and check, but does it not have all the characteristics of stop-and-search? Is the Solicitor General satisfied with the definition of “reasonable suspicion” in chapter 31 of the enforcement instructions and guidance, which I cited? Does it not give enormous latitude?
The Solicitor General
Importantly, we have to remember that we are dealing with powers that relate to a potential civil consequence as opposed to a criminal one. Therefore, it is important to draw a distinction between the stop-and-search powers and this particular competence. There will be joint crime reduction operations—commonly known as CROPs, another unfortunate acronym, for which I apologise—where, for example, somebody is stopped on the underground for fare evasion and is then referred to immigration officers. That is intelligence-led enforcement. It is not about the sort of random checks that the hon. Member for Sheffield Central illustrated very eloquently and with proper concern—a concern that I share. I do not want that sort of culture to be spread through the use of these powers. As a result of duties under the Equality Act and due to of the importance of community impact assessments made before operations, which have to be signed off by a senior official in the rank of assistant director, some of the practical safeguards are in place to deal with the sort of mischief and problems that he and other hon. Members have identified.
I am grateful to the hon. Member for Paisley and Renfrewshire North for raising the Singh v. Hammond case. It is important to note that that judgment of 1987—it is now nearly 30 years old—says:
“An examination…can properly be conducted by an immigration officer away from the place of entry and on a later date after the person has already entered…if the immigration officer has some information in his possession which causes him to enquire whether the person being examined is a British citizen and, if not…whether he should be given leave and on what conditions.”
There we have it—the basis of action.
Paul Blomfield
I anticipated that the Solicitor General might cite that case, which is the basis for the extension of powers. In reaching a view on that, the Court of Appeal said that
“the case does turn very much on its own facts”.
That case involved an immigration amnesty and an immigration officer’s specific and defined suspicion of identity deception. It was very narrowly drawn by the Court of Appeal and does not give a legitimate basis for the much wider use subsequently.
The Solicitor General
The hon. Gentleman’s interpretation is interesting. I am sure it would be an attractive submission to make were the issue to be revisited, particularly in litigation. It is nearly 30 years since that case. Since then, the Home Office has relied on it. There has been no attempt by a Government of any colour to redefine things and go back to what he would describe as the original 1971 position. There must be a very good public policy reason for that; that reason is simply that it is entirely reasonable to allow the immigration authorities to have a little more time and space, based upon a reasonable suspicion, in which they can question a person who they reasonably suspect might be an illegal immigrant. The published guidance reflects the Singh v. Hammond judgment. It makes it clear that before any inquiry begins, there has to be reasonable suspicion.
My concern is that if the power of examination is limited only to the point of entry, we could have—perversely—an increase in people being arrested, because the power to ask questions is, as I said, not a power of arrest, but a different type of power. It allows people to give a reasonable explanation before we get to the stage of any apprehension or arrest, which I think is a good thing. I would not want to see a perverse situation where, in effect, the immigration authorities are shooting first and asking questions afterwards. I am sure that the hon. Gentleman would agree that that sort of approach would definitely inflame the situation and lead to the perverse consequences that we all worry about.
Keir Starmer
I have listened very carefully to the Minister’s explanation and justification. It must follow that operations at tube stations or other places against a number of individuals, based perhaps on what they look like, would be outwith the guidance and outwith the Minister’s explanation and role.
The Solicitor General
I entirely agree. If their operations relate to other intelligence—for example, on organised fare dodging or some sort of illegal activity on the tube that was either antisocial or worse—then clearly, that joint working would be very important and would reflect the best intelligence-led operations. We are all keen to eliminate a random use of these powers that would be arbitrary and would not, in my judgment—and I am sure, in any reasonable person’s judgment—reflect the criteria set out in the Singh case and reflected in guidance ever since.
Sarah Champion
Opposition Members have real concerns about community cohesion and racial profiling, and it sounds as if the Minister too is concerned that the powers should not be used inappropriately. I appreciate what he said in relation to my hon. and learned Friend and the guidance notes. Would the Minister therefore commit to conducting a review to make sure that these powers are not overused, and that our concerns are just concerns and not reality?
The Solicitor General
I fully expect that any revised guidance notes published to reflect any changes passed in this Act will be a faithful reflection of the case law as we have outlined it today. I am absolutely sure that my colleagues in the Home Office will keep these matters under continuous review. If, indeed, a body of evidence emerges that challenges the position I have outlined today, I am sure that colleagues would look at that. It would perhaps be wrong of me to commit to anything specific today, but the hon. Lady has placed her concerns on the record for all to hear, and I am sure that the observations that we have made in this debate will be heard in another place and at other stages before the Bill, as we hope, eventually becomes law.
The final point I want to make is that I do not think that anybody wants to see the lawful and proportionate operations of our immigration authorities severely hampered. My genuine fear is that however well intentioned this amendment might be, it would lead to a hampering of those operations. Therefore, for those reasons, I urge Opposition Members to withdraw the amendment.
Keir Starmer
I am grateful to hon. Members for setting the context within which the powers that now exist operate and to the Solicitor General for his explanation. I accept that technically, in a number of legal respects, there is a difference between stop-and-check and stop-and-search, but I am not convinced that the impact on community relations follows from what are legal distinctions. In other words, I am not sure that the public out there quite accept and understand the nuances that we in this Committee might understand as the differences between the two, and there are real concerns about the way in which the existing power is being exercised. In the end, this comes back to the words that the Solicitor General used, which I jotted down. He said that it makes sense to have a little more time and space, and that that would avoid action possibly being taken on arrival that need not be taken. That is true in the sense that this is supposed to be a power that is excisable on arrival, but it very quickly moves from a little more space to a generalised power that has been exercised in the way that has been described. On that basis, I do not withdraw this amendment.
The Solicitor General
We have already dealt with some of the important provisions of clause 19, so I will try to be as brief as I can. In essence, clause 19 will amend schedule 2 to the Immigration Act 1971 to provide clear powers for immigration officers—when, for example, they are examining a person to see whether their leave should be curtailed—to search premises for evidence of such purposes. It would also update existing powers to seize documents to include those held in electronic form. As we know, immigration officers may examine a person to establish whether they require leave to be here in the UK and, where leave is required, whether they already have leave or if it should be given, including the period and conditions of leave. However, the current provisions are not explicit about establishing whether any existing leave should be cut short. Situations are encountered by immigration officers where it may be appropriate to curtail the migrant’s leave because that person was found to be working or claiming benefits illegally or, sadly, had obtained leave by deception. As a consequence, where leave is ended with immediate effect, that person becomes liable to removal.
If the House consents, we will add a power for immigration officers, where they are already lawfully on premises, to search for and seize documents which may support a decision to curtail leave. This does not include documents which are subject to a legal professional privilege. Immigration officers already have powers to search for evidence of the offences of breaching conditions of leave or obtaining leave by deception, but this of course is only for evidence that would support a criminal prosecution. However, in the vast majority of cases where migrants fail to comply with immigration law or do not depart voluntarily, our strategy is to remove them from the United Kingdom rather than pursue costly prosecution and possible imprisonment for minor immigration offences. We believe that to be a proportionate approach which is in the public interest.
We therefore believe that it is more appropriate for immigration officers to have specific administrative search powers where they are exercising administrative rather than criminal powers, and we already have the framework in schedule 2 of the Immigration Act 1971. I have already mentioned the importance of updating powers so that legislation moves with the times, which is why we now include documents that might be stored on electronic media or devices.
Sarah Champion
I am sorry to labour this point. I hear what the Minister is saying, and I do not disagree with the argument that he is making. However, does the Minister really think that the Home Affairs team, the immigration team, have the resources to go in and do this work? In my constituency, when we have people who are waiting to be deported, there simply are not the officers who can go in and carry out the work. Surely the Minister should be looking at that.
The Solicitor General
I do not want to criticise the hon. Lady for repeating an important point but, as I have already said to her, it is vital to remember that these powers are going to be exercised in a proportionate way, based on genuine intelligence. They are not going to be exercised in a scattergun way that would demand a significant increase in resources. We are confident that the proposals and powers we propose to introduce will make it easier for immigration officers to take that action and remove some of the understandable practical obstacles that exist with administrative procedures such as this, which then end up with a civil consequence as opposed to a criminal consequence. In short, at the moment it is easier for immigration officers investigating a criminal offence to search and seize than it is when it comes to the more practical measure of enforcing the civil consequences of decisions made after due process. This is a harmonisation of powers, if you like—let us remind ourselves that this is not a new power of entry. It relates to a time when immigration officers are already lawfully on the premises. It is a reasonable and proportionate measure. I think that the concerns that the hon. Lady raises are therefore met by the increased flexibility that the authorities are now going to enjoy.
Keir Starmer
As I think the Minister accepts, powers of search and seizure in connection with the imposition of civil penalties are rare in our law. There are other examples, but they are rare. The usual circumstances are for search and seizure powers to be in connection with the imposition of criminal penalties. The question I want to put to the Minister is, what is the principle? I do not think that anybody would argue that it is sensible to move to a situation where all civil penalties give rise to a power of search and seizure and therefore there is a sub-class that may have these powers connected to it. What is the principle behind this clause and that sub-group of civil penalties that attracts the search and seizure powers?
The Solicitor General
Putting it as simply as I can, the principle is that we want to ensure that, rather than having to resort to the use of criminal sanction—which, although it might mark the commission of offences and impose a punishment and penalty on individuals, could properly be seen as a disproportionate use of state power—we can resort to what, as I have said, is perhaps a lesser used path but one that is still within what the hon. and learned Gentleman and I would regard the bounds of compatibility with the European convention on human rights and our existing law. It is a proportionate use of powers. I remind the Committee that this is not a power of entry. Immigration officers have to be lawfully on the premises before these powers can be used—and, of course, there have to be reasonable grounds to suspect that the person with regard to whom the powers are being used may be liable to be detained and removed from the United Kingdom. There is a caveat, too: the search should only be to the extent reasonably required to find the documents, so a complete top to tail, fingertip search of the house, which would be wholly disproportionate, would not be within the particular use of this power.
I will give another example. There is concern about seizure of mobile telephones. Yes, there is a power to seize, but any such device on which electronic documents are stored will be seized only if it is not possible for the owner otherwise to produce the document in a visible and legible form. Again, that is an example of the proportionality and the safeguards that exist in this particular instance. I hope that on the grounds of principle and particular efficacy I have outlined what I regard as a middle way, which these provisions represent.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Search of premises in connection with imposition of civil penalty
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clause 20 provides a power for immigration officers to search premises for documents that might help in determining whether a civil penalty should be imposed on an employer or landlord. This power may only be exercised where immigration officers are already lawfully on the premises. Immigration officers already have powers to search for evidence of the offence of employing illegal workers and will have them for the new offence of leasing premises to a disqualified person. However, it is often more appropriate, as with my previous remarks on clause 19, to impose a civil penalty rather than pursue a prosecution. Therefore, we believe it is fitting for immigration officers to have specific administrative search powers when they are exercising powers for a non-criminal purpose. For that reason I beg to move that clause 20 stand part of the Bill.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Clause 21
Seizure and retention in relation to offences
Question proposed, That the clause stand part of the Bill
The Solicitor General
Clause 21 provides a power for immigration officers to seize anything they may find in the course of exercising a function under the Immigration Acts while lawfully on the premises where they believe that it has been obtained in the consequence of committing a crime, or where it is evidence of an offence. They may do so only in order to prevent the item being concealed, lost, altered or destroyed and may retain it unless a photograph or copy is sufficient. Again, this is similar to the example of the mobile telephone seizure that I gave in the debate on clause 19.
Immigration officers sometimes encounter evidence of other crimes when they are searching premises using immigration powers. In such circumstances they will contact the police and, if necessary, wait for police to come in order to secure the evidence. In the meantime, the problem is that immigration officers have no specific powers to prevent other persons on the premises removing, altering or destroying the evidence before the police arrive. It makes sense that immigration officers who are trained in securing evidence should be able to seize it to ensure that this mischief does not happen.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Clause 22
Duty to pass on items seized under section 21
The Solicitor General
I beg to move amendment 95, in clause 22, page 27, line 36, after “If” insert “the immigration officer has reasonable grounds for believing that”
This amendment clarifies that where an immigration officer is not absolutely certain that an item which has been seized under clause 21 is also evidence of an immigration offence, the immigration officer still has discretion to retain it rather than being under a duty to pass it to another investigating authority.
Amendment 95 is a minor and technical amendment that clarifies that where an immigration officer is not absolutely certain that an item that he or she has seized under the power in clause 21 is also evidence of an immigration offence, they still retain a discretion to hold or retain it, rather than being under a duty to pass it to another investigating authority. This addresses the very fine line between some offences, where it may not be clear at the outset whether they are immigration offences or not. For example, immigration officers investigating facilitation of an illegal entry in breach of immigration law may encounter forged, counterfeit or improperly obtained passports but may not necessarily know without further investigation whether they are being used by the facilitator or are unconnected with this offence.
Sarah Champion
On a point of clarification, how long can an item be held? For example, if a student has their laptop taken, that will have a direct impact on them. Is there any form of compensation or support around that?
The Solicitor General
I am grateful to the hon. Lady. I am checking the subsection, but I do not think there is a specific timeframe. I will come back to her, if I may, once I have outlined the position regarding clause 22.
Amendment 95 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
The Solicitor General
The clause provides a duty for immigration officers to notify the relevant investigating authorities, normally the police or National Crime Agency, where they have seized anything under clause 21.
It also applies where immigration officers, working in criminal investigation teams, have seized anything using their powers in relation to specified crimes that are commonly encountered in the course of exercising a function under the Immigration Acts, such as bigamy, forgery and human trafficking.
It sets out the arrangements for: notifying the relevant authority of the items seized; whether or not the authority will accept the items; handing them over; or returning them if, for example, the relevant authority does not believe them to be evidence of an offence.
In response to the concerns of the hon. Member for Rotherham about length, as I thought, there is no specific timeframe. However, there is an expectation that the immigration authorities will act reasonably. There are obviously practical concerns about retention of items such as laptops by the authorities. I am sure that they would view it as being in their very strong interest either to return the item, if it discloses the commission of no offence, or to pass it on to the relevant authority, if it were connected with the commission of a criminal offence. Therefore, there is a strong utility argument that would prompt the immigration authorities to act more promptly rather than hold on to items in the way that she fears.
Sarah Champion
I should be grateful if the Solicitor General would issue a statement on that in the guidance notes. I know from the experience of my constituents who have had mobile phones taken that they just seem to disappear, and that seems almost as a punishment or intimidation rather than for a productive reason.
The Solicitor General
I am happy to reassure the hon. Lady in this way. The arrangements in clause 21 mirror the Police and Criminal Evidence Act 1984 arrangements, and that should reassure her at the very least that there is a framework. I accept that within that there will be occasions when individuals do end up waiting an inordinate time for items.
Of course, there are powers in relation to a criminal investigation under the Police (Property) Act 1897. Although I cannot give an undertaking, the points that the hon. Lady has put on the record are noted but I am satisfied that we have a framework mirroring PACE that acts as an exhortation to the authorities to act in a reasonable and prompt way. I am grateful to her for raising that point.
Question put and agreed to.
Clause 22, as amended, accordingly ordered to stand part of the Bill.
Clause 23
Retention of things seized under Part 3 of the Immigration Act 1971
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clause 23 inserts a new section 28ZI into the Immigration Act 1971 that provides for the retention of material seized by immigration officers for the purposes of a criminal investigation. This simply aligns the framework for the retention of anything seized by an immigration officer for a criminal purpose with that applying to police in England and Wales under the Police and Criminal Evidence Act 1984. That should be a welcome insertion that all Members will feel comfortable with, knowing that there is a harmonisation of the powers.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24
Search for nationality documents by detainee custody officers etc.
Keir Starmer
I beg to move amendment 197, in clause 24, page 30, leave out lines 13 to 16
To remove the power to conduct a strip search from detainee custody officers.
We now move to an area of considerable concern. The amendment would remove the power to conduct a strip search from detainee custody officers. The context in which the amendment is put forward is one of considerable concern for some time about the exercise of powers over those in immigration detention—a concern that I believe is shared across the House.
Clause 24 (1) provides:
“The Secretary of State may direct a detainee custody officer, prison officer or prisoner custody officer to exercise any of the powers in subsection (6) in relation to—
(a) a detained person who is detained in a removal centre, prison or young offender institution, or
(b) a person who is detained in a short-term holding facility.”
Subsection (5) provides that the relevant officer must then comply with the direction, with subsection (4) providing that the Secretary of State must have reasonable grounds to believe that,
“a relevant nationality document will be found if a power in subsection (6) is exercised in relation to the person.”
If we press on through the clause, we find a point that ties in with amendment 198—that the definition of nationality document is very wide. Under subsection (15) “nationality document” means,
“a document which might—
(a) establish a person’s identity, nationality or citizenship”.
A document that might establish a person’s identify is a very wide class of documents for all of us. Many documents might establish or help to establish our identity. This gives the Secretary of State a wide power to make a direction in relation to a wide class of documents where the relevant officer must then comply, and the power to include strip search in an environment and a context where there has already been heightened concern about the exercise of powers within immigration detention.
Those are the reasons why these amendments will be pursued. They are pursued with real concern about how the powers will be exercised, based on many points that have already been raised and the reports that have been written about this area.
The Chair
Before calling the Minister, I remind the Committee that we are considering amendment 197. We will consider amendment 198 separately.
The Solicitor General
I am grateful for that exhortation, Mr Owen. I will therefore resist eliding the two issues and specifically address amendment 197, which has prompted an extremely useful debate on strip searches. I am grateful to the hon. Members for Rotherham and for Glasgow North East for speaking clearly and making the right points about the need for the highest possible standards when using such a draconian power.
First, I offer reassurance to the hon. Member for Rotherham, who asked about the meaning of the guidance that a strip search may not be carried out in the presence of a person of the opposite sex. That includes the person conducting the search. That is absolutely essential, because any other scenario would be wholly wrong and insensitive.
Sarah Champion
It is incredibly reassuring to hear that, but will the Solicitor General put it in the Bill?
The Solicitor General
My understanding of what I prefer to call “full searches”—full non-intimate searches is probably the correct term—is that they are never done to a male by a female or to a female by a male. That has been the case for a considerable period, and probably ever since PACE. I might be wrong, but that is certainly my understanding from years of using the code of practice in my work as a criminal practitioner, prior to my entry into the House.
I want to deal with the question of what precisely we mean here. My hon. Friend the Member for North Dorset adumbrated the point that this is not about an intimate search. This is not a search of body orifices—for example, the mouth. It is what we would describe as a non-intimate search. More importantly, it is not the rather horrific image that might be created in our minds of someone completely unclothed being searched. That is not what happens. The individual must not at any stage be completely naked, so searches have to, in effect, take place with regard to each item of clothing in turn. Of course, that involves looking between the clothing and the skin, because experience sadly teaches us that important documents can often be concealed there, but at no time is the individual humiliated to the extent that they are left without any clothes on at all.
Paul Blomfield
I do not question for one moment the Government’s intention or the guidance, but does the Solicitor General accept that the context makes a big difference? For example, at Yarl’s Wood, which I know the Government have concerns about and are reviewing, allegations were made as recently as January this year by the charity, Women For Refugee Women, about the treatment of women. Until issues with practice on the ground in detention centres are adequately resolved, the best intentions in the world are at risk, are they not?
The Solicitor General
This is one of the most important functions that we as a Committee can perform: not having artificial debates but putting on the record the concerns, using the evidence we have as Members of Parliament or, indeed, from our observation of important events at places such as Yarl’s Wood, then seeking clarification from Ministers. I hope that my colleague the Minister for Immigration feels exactly the same way I do—that this is an opportunity for the Government to put on the line what we expect the standards to be when it comes to non-intimate full searches.
Keir Starmer
I am grateful for the Solicitor General’s explanation, and I understand exactly the case he puts for the power, but there is sometimes, as he will understand, a gap between the words that go into Hansard as a result of this exchange and what happens on the ground. That is the real cause for concern, particularly in the light of the Yarl’s Wood example. What practical steps can be taken to turn the assurances the Solicitor General is rightly giving into reality on the ground?
The Solicitor General
We are going to provide additional guidance on the power to search under clause 24. That is for those who are directing the search on behalf of the Secretary of State and those who are conducting the search. Detainee custody officers, prison officers and prisoner custody officers are trained in the use of search powers, which includes strip searches. Detention services order 9/2012 provides instructions to detainee custody officers, and prison service instructions 67/2011 and 16/2014 provide instructions for searching persons in prisons and young offenders institutions respectively. We will build on those and ensure that the new provisions contain clear guidance.
The hon. Member for Rotherham made a point about the wording, “in the presence of”. We would say that the words are clear: it obviously means the person conducting the search as well. I hope that the explanation that I give as the Minister presenting the clause will be sufficient clarification to allay her fears on that point.
Sarah Champion
I thank the Minister for that clarification, and now that he has specifically put that on record, I am comfortable with that. I know that the Minister is always honourable in his intentions. Could I ask him to answer my point about youth offenders? At what age does he think it acceptable for young people and children to go through this search?
The Solicitor General
I was coming on to that very point. The power to search children in this way will only be used in exceptional circumstances. Let me explain the background. The Government’s policy is not to detain children in immigration and removal centres, so as part of the family removal process where children are held in a short-term holding facility a few days prior to removal, we believe that this search power will not be necessary because we will have the travel documents in place already.
Regarding young offender institutions, children under the age of 18 are exempt from the automatic deportation provisions for foreign national criminals, so one ground is already removed. Let me give me an example of exceptional circumstances. A 17-year-old male might be held in a young offender institution following a conviction of rape. He is facing deportation on conducive grounds because of this sentence and gang affiliations. If the Secretary of State has reasonable grounds to believe that he may have nationality documents in his possession, then it may be necessary for officers to conduct a full search in the way that we have described. I hope that gives the hon. Lady reassurance that we really are talking about exceptional circumstances, such as an older male who has perhaps been convicted of a very serious offence, where there is a clear public interest in making sure that all reasonable steps are taken before removal from the UK.
Keir Starmer
The example that the Solicitor General gives is a 17-year-old male. What does he see as the limits on children under the age of 17? At what age does it become inappropriate to ever exercise this power? I know that is a difficult question in general but this is a sensitive area. A 17-year-old male is one thing—he has given a good example, but there are clearly other examples of concern. What are the limits as the age goes down?
The Solicitor General
The only answer I can give is that it will depend on a thorough case-by-case analysis. For example, it might be somebody younger who is a persistent offender who has committed a very serious offence. It would be wrong to say that there would be a hard and fast threshold, other than one that would be based on a genuine case-by-case analysis. Many people in this room have had experience of the youth offending system. I think that with training and guidance, we can get this right and make sure that the power is not used in a disproportionate way that reasonable people would regard as an infringement and an inappropriate use of the power with regard to young people. [Interruption.] There is Ministry of Justice guidance which says that searches of males in young offender institutions must be risk based or following intelligence on a case-by-case basis. That is the guidance that will be followed. There will be a read-over and therefore the fear of randomness and of arbitrary judgment is removed by the use of that guidance and careful case-by-case analysis.
Keir Starmer
I appreciate that to some extent we are exploring the limits of this as we go along and I am grateful for the way that the Minister is dealing with that. It may be a simple question of reassurance but are there any circumstances where under this provision, a child under the age of 10 would be subject to a search? I do not think that would be available under any other provision in criminal law because they would be under the age of criminal responsibility. This is a genuine concern. I am not asking for an instant answer if it is impossible. It may be something that is better done in writing. I think for all criminal law provisions, 10 would be the lower trigger for obvious reasons.
The Solicitor General
I think, in asking the question, the hon. and learned Gentleman is almost answering the point. In that case, a child under 10 would not have been convicted of any criminal offence. That is an important start. I am happy to give the assurance that the measure would not apply to a child under 10.
Keir Starmer
Of course, the question answers itself regarding young offender institutions. I was not exploring that aspect but I am grateful for the Solicitor General’s assistance. My concern relates to those and any other centres. It is an exploring question, rather than one that may be capable of being answered straight off the cuff.
The Solicitor General
I am happy to give a direct answer. In any circumstance, this will not apply to children under 10.
Keir Starmer
I have said all that I need to say on amendment 197. I wish to press the amendment to a vote.
Question put, That the amendment be made.
The Solicitor General
The definition given in clause 24 is frequently used elsewhere in immigration legislation where immigration and police officers have various powers to search for, seize and retain documents that will facilitate a person’s removal from the UK. When it is not possible to obtain passports and identification cards, other documents that contain information such as date of birth, place of birth or right of residence can indeed assist foreign Governments to identify their nationals and provide travel documents for them. Those could include: birth, marriage or civil partnership certificates; divorce documents; adoption papers; maritime or military discharge certificates; tickets for travel in and out of the UK; stubs of boarding passes; resident status documents; and visas and vignettes.
The effect of the amendment would be to hinder the efforts of the Home Office to secure emergency travel documents and to remove people with no leave to enter or remain in the UK. We therefore fear that, despite the understandable intentions of the hon. and learned Gentleman, it does not reflect the reality of what we are trying to achieve, which is to help foreign Governments to facilitate the return of foreign nationals who, after having exhausted due process, are no longer entitled to be here.
Keir Starmer
I appreciate that the definition has been used elsewhere. It is the combination of that definition with the strip search that is of such great concern, although in the circumstances, and given the assurances on strip searches, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 ordered to stand part of the Bill.
Clause 25
Seizure of nationality documents by detainee custody officers etc
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clause 25, like clause 24, deals with a gap in the powers of officers charged with the care and security of immigration detainees and foreign national prisoners who are liable to deportation to obtain nationality documents to help the Home Office remove these people from the United Kingdom. As noted on a number of occasions, the ability to remove foreign nationals who have no right to remain here is often delayed by the need to obtain a passport or other travel document. We need to take all necessary steps to obtain those documents that will facilitate removal. This clause allows relevant officers to seize nationality documents that are found in the course of a routine search conducted using their existing powers and to seek the Secretary of State’s consent to retain that document and to pass it on to the Home Office where the Secretary of State has reasonable grounds to believe the document will help with the person’s removal from the UK.
Question put and agreed to.
Clause 25 accordingly ordered to stand part of the Bill.
Clause 26
Amendments relating to sections 24 and 25
Question proposed, That the clause stand part of the Bill.
The Solicitor General
Clause 26 amends schedule 11 of the Immigration and Asylum Act 1999, as a consequence of clause 24, by expanding the offences of assaulting or obstructing a detainee custody officer to include where an officer is performing functions under clause 24 to search for nationality documents. It ensures that a reference to a detainee custody officer in this context also includes a reference to a prison officer or a prisoner custody officer. It is only right, in extending the functions of those officers, that they are covered by existing offences of assault and obstruction. They deserve a degree of protection by criminal law if they are assaulted in the course of their duties.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clause 27 ordered to stand part of the Bill.
Schedule 4
Amendments to search warrant provisions
The Solicitor General
I beg to move amendment 24, in schedule 4, page 73, line 17, leave out from “application” to “, or” in line 19.
This amendment and amendments 25 and 28 to 30 are to clarify that the definition of “specific premises warrant” in section 28K(13A) of the Immigration Act 1971 inserted by paragraph 5(8) of Schedule 4 to the Bill applies to any warrant under that Act which is not an all premises warrant.
The Chair
With this it will be convenient to discuss Government amendments 25, 49, 50, 51, 26 to 28, 52, 53, 29 and 30.
The Solicitor General
These amendments to schedule 4 amend the provisions for immigration warrants. I am happy to say that they have been tabled as a result of lengthy dialogue with the Scottish Government—I know that will please and satisfy hon. Members, including the hon. Member for Glasgow North East. Amendments 26 and 27 remove the requirement for immigration search warrants obtained in Scotland to be returned after they have been executed. At the moment, under section 28K of the 1971 Act, warrants must be returned if issued by a justice of the peace in Scotland to the clerk of the district court for the commission area for which the justice of the peace was appointed or, if issued by the sheriff, to the sheriff clerk. These amendments will make it easier for the warrants to be available to the procurator fiscal as productions in criminal proceedings in Scotland, making the process a better way of working with our friends in the Scottish criminal justice system.
Amendments 24, 25, 28, 29 and 30 are technical amendments that clarify the definition of what is known as a specific premises warrant, which allows officers to enter only the address named on the warrant. Schedule 4 to the Bill introduces all-premises warrants, which allow officers to enter more than one set of premises occupied or controlled by a person who has to be specified in the warrant application, even if only one address is actually specified on the warrant. These amendments would make it clear that any warrant that is not defined as an all-premises warrant is therefore a specific premises warrant.
Amendments 49 to 53 are minor and technical amendments that ensure that the provisions regarding warrants in sections 28J and 28K of the 1971 Act, as amended by schedule 4, also apply to a warrant obtained for entering premises to detain a vehicle.
Amendment 24 agreed to.
Amendments made: 25, in schedule 4, page 74, line 14, leave out from “application” to “, or” in line 16.
See the explanatory statement for amendment 24.
Amendment 49, schedule 4, page 75, line 40, after “section” insert “24DA(6)(b),”.
This amendment and amendments 50 to 53 ensure that the provisions regarding warrants in sections 28J and 28K of the Immigration Act 1971 as amended by Schedule 4 also apply to a warrant obtained for entering premises to detain a vehicle.
Amendment 50, in schedule 4, page 75, line 43, after “section” insert “24DA(8),”.
See the explanatory statement for amendment 49.
Amendment 51, in schedule 4, page 76, line 5, after “seizure” insert “or detention”.
See the explanatory statement for amendment 49.
Amendment 26, in schedule 4, page 76, line 23, after “(8B)” insert “Subject to subsection (8C),”.
This amendment and amendment 27 reflect Scottish criminal law by removing the requirement for immigration search warrants obtained in Scotland to be returned to the clerk of the district court or the sheriff clerk after they have been executed, allowing for them to be retained for use by the Procurator Fiscal in court.
Amendment 27, in schedule 4, page 76, line 28, at end insert—
‘(8C) Subsection (8B) does not apply to a warrant issued by a justice of the peace in Scotland or by the sheriff if the warrant has been executed.””.
See the explanatory statement for amendment 26.
Amendment 28, in schedule 4, page 76, line 33, leave out from “warrant” to end of line 35 and insert “which is not an all premises warrant;”.
See the explanatory statement for amendment 24.
Amendment 52, in schedule 4, page 76, line 37, after “section” insert “24DA(6)(b),”.
See the explanatory statement for amendment 49.
Amendment 53, in schedule 4, page 76, line 40, after “section” insert “24DA(8),”.
See the explanatory statement for amendment 49.
Amendment 29, in schedule 4, page 77, line 8, leave out from “application” to “, or” in line 10.—(The Solicitor General.)
See the explanatory statement for amendment 24.
Keir Starmer
Let me start by setting out the purpose of these two amendments. Amendment 220 is intended to make mandatory the issuing of the code of practice that immigration officers must follow. Amendment 221 would delay the entrance into force of the provisions of part 3—which concerns enforcement, under the sub-heading “Powers of immigration officers etc”—until such time as the Secretary of State has made a direction under section 145 of the Immigration and Asylum Act 1999, and has laid the code specified in that direction before both Houses of Parliament. The context here is an agreement across the House that there has to be care, professionalism, necessity and proportionality in the exercise of all the powers that we have been discussing this afternoon.
The amendments are prompted by the current mismatch between Home Office guidance and the successive reports of the chief inspector of borders and immigration. To elaborate on that, the Home Office guidance by and large suggests that enforcement raids on premises and businesses are directed on the basis of specific intelligence about an individual who does not have leave to be in the UK. However, successive reports by the chief inspector of borders and immigration paint a different picture. In the inspection that the chief inspector conducted from October to November 2013, he reported that 59% of the cases he examined lacked the required justification for the use of the power and that in a further 12% there was insufficient information for him to form an opinion. Taken together, that 71% is a very high percentage of cases that the inspector is reporting. There is a mismatch between the guidance being issued and what is happening on the ground.
In the same report that related to October and November 2013, the chief inspector reported high varying use of the power across the country. In south London it was used in two-thirds of illegal working operations, and in east London it was used in 3% of cases. Therefore, the purpose of the amendments is to bolster the provisions for a code, to make the code mandatory and to delay the provisions until the code is laid before the Houses of Parliament.
The Solicitor General
In essence, our objections to these amendments are, with respect, that they have no substantial effect, given that it is already the case that immigration officers’ coercive powers are subject to the Immigration (PACE Codes of Practice) Direction 2013 and that the specified codes themselves—that is, the PACE codes of practice—have been laid before both Houses of Parliament.
Section 145 of the Immigration and Asylum Act 1999 makes it mandatory that immigration officers should have regard to such provisions as the PACE codes of practice as may be specified. “Specified” means in a direction given by the Secretary of State. It is already the case that the 2013 direction applies the relevant parts of the PACE codes of practice to the powers exercised by immigration officers. This direction is available in the Libraries of both Houses and is also published on the gov.uk website. Hon. Members will be well aware that any changes to the PACE codes of practice are laid before Parliament. We will of course update the immigration direction to reflect the new immigration powers in part 3 of the Bill and will ensure that is done in time for the commencement of these enforcement powers.
The hon. and learned Gentleman raised some points about a criticism about the use of enforcement powers, for which I am grateful to him. I think it was Liberty that referenced some statistics from the independent chief inspector of borders and immigration’s report on the use of the power to enter business premises without a search warrant—that was published in March of last year. An internal review had already highlighted that as an area for improvement, and the inspector’s report noted the following:
“During the course of our inspection, the Home Office moved quickly to address the issues that we identified. This was positive and demonstrated that the Home Office was, for the first time, starting to exert a much stronger grip on how the power was used by its staff.”
I hope that that is encouraging information for all Members present.
Where immigration officers are entering premises using a warrant, in order for that warrant to be issued, they will have to have satisfied the court that there are reasonable grounds for suspecting that a person who is liable to be arrested for a relevant offence is to be found on the premises or that there are reasonable grounds for believing that material that is likely to be relevant evidence of an immigration offence is on the premises. The safeguards for the use of these warrants is set out in sections 28J and 28K of the Immigration Act 1971 and reflect those provisions in the Police and Criminal Evidence Act 1984.
In the light of those points, I hope that the hon. and learned Gentleman will agree to withdraw his well-intentioned amendment.
Keir Starmer
I am grateful for the Minister’s explanations and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 30, in schedule 4, page 78, line 1, leave out from “application” to “, or” in line 3.—(The Solicitor General.)
See the explanatory statement for amendment 24.
Schedule 4, as amended, agreed to.
Clause 28 ordered to stand part of the Bill.
Clause 29
Immigration bail
Keir Starmer
I apologise for coming to very technical amendments at this stage of the day and the proceedings; we seem to have been dealing with technical amendments for some time. Perhaps it will be possible for the Minister to give an assurance; the purpose of the two amendments is to ensure that individuals in the circumstances set out in the explanatory statements will not be in a worse position under the Bill than they are now.
The Solicitor General
Amendment 216 seeks to change the way the leave that is extended by section 3C of the Immigration Act 1971 operates. With respect, there has been a misunderstanding of the current position. The effect of the amendment would be that where a person applies for leave to remain and their application is refused while they still have immigration leave, their leave would be extended by section 3C while they bring an appeal or administrative review. Where an appeal or administrative review is lodged, leave will continue to be extended until any appeal or administrative review is no longer pending.
It was said that the reason for the tabling of the amendment is that people in that situation do not have their leave extended by section 3C, and that is an unintended consequence of the Immigration Act 2014. That is not the case. In fact, if anything, the 2014 Act actually improved the position with regard to section 3C. It has always been the case that, where an application is refused while the applicant still has immigration leave, leave is not extended by section 3C while a challenge to the refusal can be brought. In other words, section 3C applies only to undetermined applications. Where somebody is still waiting for an application to be dealt with, section 3C kicks in to allow the delay to be remedied.
Keir Starmer
Just to clarify that point, what is the position if the Secretary of State cancels the leave during that period?
The Solicitor General
The whole purpose of the provision is to deal with the question of cancellation where there has been a breach of the conditions. I will come on to that point in the clause stand part debate. At this stage, we see no reason to change the position in the way that is outlined in amendment 216.
Amendment 217 would have highly undesirable consequences and is unnecessary. With respect to the hon. and learned Gentleman, he does not fully outline the Government’s case in the Iqbal case, the Court of Appeal judgment by Lord Justice Elias that was reported earlier this year. The amendment, as outlined by the hon. and learned Gentleman, would mean that immigration leave would be extended by virtue of section 3C for anyone who makes an invalid application for further leave.
The problem is that that is clearly open to potential abuse. A person could deliberately make an invalid application, for example by neglecting to pay the required fee or by failing to provide mandatory documents, and continue to remain in the UK lawfully. That leave would continue until the Home Office determined that the application was invalid. That, I am afraid, would potentially be a charter for exploitation by unscrupulous people who could make invalid applications simply to extend their immigration leave and to take advantage of the section 3C provision.
The amendment is also unnecessary, because our rules and guidance set out clearly how to make a valid application, and an opportunity is provided for mistakes that lead to an application becoming invalid to be made good. That provides a safeguard for people who, from time to time, make a genuine error. Where a fee is paid, we will contact those who make invalid applications to tell them what steps they need to take to make their application valid. Where people respond within the specified time limit and provide the missing information, they will be deemed to have made a valid application, and their leave will be extended by section 3C if the application was made before the expiration of their previous leave. That point was dealt with chiefly in the case of Iqbal.
The safeguard works. More than 650,000 applications were made between April last year and June this year, of which only 2.45% were rejected as invalid. I understand the concerns expressed about access to services and about the offences that the Bill introduces for those who work illegally or drive while unlawfully in the UK. However, in practice, those measures will not be applied to individuals until the Home Office has determined whether an invalid application has been made.