Investigatory Powers Bill (Second sitting)
Robert Buckland Excerpts(8 years, 8 months ago)
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The Solicitor General (Robert Buckland)
Q Thank you, Mr Walker; it is a pleasure to serve under your chairmanship. Mr McClure, you have made some powerful points, so thank you very much indeed for giving your perspective on the IT, and as a bereaved relative. We all share your grief and anger about the atrocity.
Mr Wardle, I want to ask you about internet connection records, the new potential powers within the Bill and the purposes for which those records could be retained by an internet service provider. We know now that, as a result of the Joint Committee’s recommendations, there are four purposes for which those records could be retained for potential examination by the authorities. I think that they are very clearly set out: for the purposes of identifying who sent a communication; to establish what services either a suspect or a potential victim has been using; to establish whether or not a known suspect has been indulging in online criminality; and finally—the additional one—to identify services that a suspect has accessed, which could assist an investigation. If there was a narrowing of those purposes, what effect do you think that would have upon the authorities’ ability to investigate child abuse and related offences?
Alan Wardle: As I understand it, the previous draft Bill had a narrowing in the fourth one, and I appeared before the Joint Committee before Christmas to argue against that narrowing. I cannot remember the exact wording, but it was essentially where illegal activity was happening.
Again, I go back to the example of the grooming case I mentioned earlier. Grooming, by its very definition, takes place over a period of time. There are certain activities that you would want to investigate that are perfectly legal. Say a child has been trafficked across the country. Someone has hired a car, taken it from A to B and dropped it off, and they have gone on to the Travelodge website to book a hotel room. All of those are perfectly legitimate activities, but those activities—as part of a wider investigation—would be able to show the police that that person trafficked that child from A to B and that those activities took place. Clearly more would be needed, but the narrowing that was there before would, we believe, have unduly restricted the police’s ability to investigate those kind of crimes.
Joanna Cherry (Edinburgh South West) (SNP)
Q May I ask you some questions about internet connection records? Can you confirm that you have read the operational case for internet connection records referring to the case of Amy?
Alan Wardle: I do not think I have read that.
Mr Hayes
Q That is something the Joint Committee recommended and now forms part of the Bill. On internet connection records, can you give us a flavour, also from your case experience, of the kinds of crimes and circumstances in which they might be vital to an investigation and, ultimately, to catching and convicting people involved in serious crime?
Chris Farrimond: Let us just start with the fact that internet connection records are the new comms data; they are the modern equivalent of comms data, the normal itemised billing that we have had for years and years. Criminals are using internet communications even if they do not necessarily realise it—when they send an iMessage, for instance, in an internet communication, rather than a text message. That is happening the whole time, and it is happening right across the population, whether people are law-abiding or criminal, so internet connection records now feature in every type of criminality. They are featuring more in those types of crime where the internet plays a larger part—fraud, for instance. I can talk about child sexual exploitation, where the internet makes it so much easier to share images, so internet connection records would be extremely useful for us in those circumstances.
Simon Grunwell: HMRC’s business model going forward is to put more and more services online to enable taxpayers to do more themselves, a bit like an online bank account. We already have online frauds. We are quite attractive for fraudsters, in the sense that we collect £500 billion a year and we pay out £40 billion in benefits and credits. Comms data helps us directly prevent the loss of £2 billion in revenue. On the ICR point, in particular, we have already had online attacks against us. In one case alone we were able to prevent the loss of £100 million. ICRs can only help us in that regard.
Richard Berry: From a local policing point of view, it is not just about serious crime; it is also about—if I can use this phrase—policing the digital high street. So ICRs could be just as relevant for cases such as domestic abuse, stalking and harassment, to prove a particular case, or to help us deal with what might seem, in isolation, to be a minor issue, but can often be on a path of escalation to homicide or very serious assault.
The Solicitor General
Q You were just asked about anonymity and the perceived danger to anonymity—for example, in the Crimestoppers scenario—but that would apply if I telephoned Crimestoppers now, wouldn’t it?
Chris Farrimond: It would.
The Solicitor General
Q Theoretically, you would be able to get access to the phone number that I have used and work out who that number was linked to and, presumably, link that to me now.
Chris Farrimond: Yes.
The Solicitor General
Q As I understand it, these internet connection records will be held by CSPs—communications service providers—not by the authorities.
Chris Farrimond: Correct.
The Solicitor General
Q In order to access those records, you have to apply to a SPOC, or via that procedure, and then a filtering process will apply.
Chris Farrimond: Yes, it does.
The Solicitor General
Q So the scenario of the authorities holding this information and being able, at a whim, to breach anonymity is nonsense, isn’t it?
Richard Berry: We certainly very much follow the procedure of looking at each application and testing it for its necessity against its purpose, the proportionality, the levels of collateral intrusion and things like the timescales involved. If you look at the annual reports of the Interception of Communications Commissioner’s Office in 2015, you will see that they even go to the extent—I think it was done on about 100,000 applications— of looking at the amount of time a decision maker, a designated person or, under the new legislation, a designated senior officer, actually takes to consider all the tests that are required to ensure that the parameters are tight and that justification is in place.
Byron Davies (Gower) (Con)
In my experience, the UK is regarded as a world leader in intelligence-led law enforcement and I am sure that you agree that the Bill will enhance your capability. Can you tell me how important to your work it is that this legislation applies extraterritorially?
Chris Farrimond: It is rare for serious crime to be investigated and to have no international aspect to it at all. Certainly in the case of the National Crime Agency, almost every single case that we investigate has got an international aspect to it, but I suspect that that is the same for both my colleagues as well. That means that communications data will almost certainly be held in a third country at some point, because we have been communicating with people in other countries. The extraterritoriality will at least give us the ability to ask for those data. I do not doubt that there will be some complications when it gets compared with the host nation legislation along the way, but, nevertheless, at the moment we have a very lengthy process to get material back from other countries, so if this can help in any way, shape or form in speeding that up, that will be a good thing.
Richard Berry: It certainly is a strategic priority for law-enforcement policing to look at how we can ensure, as Chris said, this fragmentation of data across server farms, in clouds and across several countries is increasingly a challenge for us, so any legislation that can help with that process will be particularly useful.
The other point that I would make, building on what you said in your introduction, is also quoted by the commissioner in the 2015 report. Communications service providers, certainly in the US, very much favour the British SPOC system, because there is a dedicated, rigorous system, whereas they could perhaps be approached individually by—I think, to quote them—one of “10,000 FBI agents”, all adopting a slightly different process. So we have got the right systems in place; I think it is really the relationships and the access that is critically important.
Simon Grunwell: I will just add that the internet obviously provides mobility and anonymity. We could have an attack from anywhere in the world, online, so we need to keep pace effectively with digital changes. Sometimes the only clue that we have as to who is criminally attacking us is a digital one. The ability to go extraterritorial to pursue that one clue could be vital.
Christian Matheson
Q You could still handle those investigations and deal with them, but when it was apparent that they are of a sufficiently serious nature you can involve the police, who are then able to make the applications on your behalf, so you would not need access under the terms of the Bill.
Mark Astley: It is a valid point, but I believe that the powers are there for the trading standards, who do a really good job, and they have done an excellent job so far in dealing with high-level crime.
The Solicitor General
Q In the last year for which records are available, which I think is 2015, about half a million applications for access to comms data were made. About 0.4% of those were local authority applications.
Mark Astley: That is correct.
The Solicitor General
Q So we are talking about several thousand out of about half a million. Is that right?
Mark Astley: Well, if you look at the last two years alone, we are talking 3,300.
The Solicitor General
Q You were asked questions about the replication of the existing regime relating in England and Wales to magistrate authorisation, in Scotland to sheriff authorisation, and in Northern Ireland to district judge or magistrates court authorisation, for applications for access to comms data by local authorities. Those provisions are replicated in the Bill, are they not? I think it is in clause 66. But they are in the primary legislation.
Mark Astley: They are.
The Chair
Colleagues, I think we could do with a 12-minute break, because people have to get coffees and check with their offices.
Sitting suspended.
Examination of Witnesses
Lord Judge, Clare Ringshaw-Dowle, Sir Stanley Burnton and Jo Cavan gave evidence.
The Solicitor General
Q May I go back to the first points made about the judicial review test? I put in a plea for the poor parliamentary draftsmen and women who work very hard indeed to try to strike a balance between avoiding excessive prescription and the dangers of being unduly vague. Lord Judge, you suggested we were falling more towards the latter end of the spectrum and being somewhat unhelpful.
There are in clause 18 the necessity criteria that are applied by the Secretary of State and then by the commissioner. The difficulty I have is, what do I do? I am trying to ensure the commissioners have discretion and the ability to make a nuanced decision based upon the individual case before them. At the same time, I am being told, “Well, that isn’t good enough.” Should the draftsmen produce a non-exhaustive checklist, or is that in itself full of dangers for the commissioners when it comes to their decision making?
Lord Judge: I think it is a matter of principle that has to be decided by Parliament—of which I am a Member, in the other place. What check is appropriate for Parliament to put on the Secretary of State exercising this very important power?
The Solicitor General
That is there; it is in clause 18.
Lord Judge: There it is. If you leave it as judicial review, we know that judicial review depends on the context, on when you have last been in the Supreme Court and when the last case came from the European Court of Human Rights; it is a flexible concept. That is one of its strengths, but I am not sure that in the context of the public responsibility that goes with the issue of these warrants there should be a flexible concept.
The Home Secretary has to make the decision. As it happens, if there is the equivalent of Brussels here in London, she will now be there. She will be answering. She will say, “I did issue this warrant,” or “I didn’t.” Whichever way she did it, she will be responsible and answerable to you. What is the role of the judicial commissioner in such an arrangement? Does he come before you too, because he said, “I don’t agree with this warrant,” or, “I do agree; I do support it”? We need to be clear what you want the commissioner to do. Not everybody agrees with me, but I think that just saying “judicial review” is not clarifying where responsibility rests at the really crucial moment, which is when disaster strikes.
The Solicitor General
Q But you appreciate the problem that we have in getting this right.
Lord Judge: I do, but that is what Parliament is for. We have to decide what the law should be. I myself would like the law on this issue to be absolutely unequivocal, whatever Parliament or the House of Commons ultimately want.
Sir Stanley Burnton: We wonder what the function of clause 196(6) is. It is either telling a judge the obvious or it is a big stick to wave at the judge, to say, “You have to approve this because if you don’t, you’ll be jeopardising the success of an intelligence operation.”
Suella Fernandes
Q Building on the point made by the Solicitor General, clause 21 sets out the “necessary” and “proportionate” tests. We have heard a lot about those words. What questions do you ask when you are assessing proportionality? What is that analysis?
Sir Stanley Burnton: You are looking at the effect of the measure in question as against alternatives and as against the mischief that is aimed at—are we talking about saving life, or it just a matter of money? If it is money, is it a lot of money? Is it pensioners’ money or the Government’s? You weigh one up against the other, and in the end, it is a matter of assessment—looking at one and looking at the other.
Immigration Bill (Thirteenth sitting)
Robert Buckland Excerpts(9 years ago)
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Mrs Emma Lewell-Buck (South Shields) (Lab)
It is a pleasure to serve under your chairmanship, Mr Bone.
I apologise to the Committee if I repeat some of the comments that have already been made by my hon. Friends, but I feel we can never hammer home enough the points that we are trying to make today.
I will mainly speak to amendments 226 and 227. Amendment 226 would provide a very basic level of support—just over £5 a day—for destitute families who have been refused asylum. These amendments have three aims: to make sure that vulnerable children are not left destitute; to ensure that families continue to engage with the Home Office; and to head off the danger that the removal of asylum support will in practice see a massive transfer of responsibilities and duties of care from central to local government.
The first point is the most simple and in some ways the most powerful. To be entirely blunt, cutting support will mean that innocent families and their children will go without food or shelter. The Minister noted last week the importance of considering the best interests of children. As a civilised and compassionate nation, we cannot ignore the impact that withdrawing support would have on children’s welfare, health and wellbeing, or the very real dangers that they could be exposed to as a result of their family’s destitution. Without a safety net, families will resort to extreme measures, often turning to illegal work that drives them into the embrace of criminal gangs.
Removing support is also entirely counterproductive, in that it does not have the desired effect of encouraging families to leave the UK. Witnesses at the Committee’s evidence sessions told us the same thing time and time again—you do not get people to leave the country by cutting off their only means of support. All it does is give them every incentive to disappear and to stop engaging with the Home Office. Families will do that because given a choice between destitution in the UK or returning to a homeland where they believe they may be killed or tortured, they will choose the former as the least worst option. When we consider some of the absolutely desperate steps that people have taken to reach the UK to begin with, and that they have risked their lives to make the journey to Britain, we should not underestimate what they will do to stay here.
Removing support forces these families to find other ways to survive, and makes them easy prey for criminal gangs who will ruthlessly exploit their vulnerability for profit. One of the aims of the Bill is to tackle illegal employment, and the very welcome Modern Slavery Act in the last Parliament was intended to help to fight terrible crimes such as human trafficking. By removing support for failed asylum seekers, the Government may undermine both those aims, by gifting the criminals who prey on desperation a new group of people to target and exploit.
The Government seem to think that by encouraging people to leave the UK they can make savings, but their approach just will not have the effect that they intend. If they want to save money, they will do it by engaging people in the process of return. Some 40% of returns are voluntary, and even those that are not voluntary are made much easier when we have records on people and consequently know where to find them. Keeping people on the books costs money, but nothing compared to the alternative. The best way to save money is to conclude cases as quickly as possible, and encouraging people to drop off the radar by removing their support does the exact opposite.
Last week, the Solicitor General stated that he would write to me with full details of how judicial reviews would be funded. Obviously, I am yet to receive such details and I wonder if he could provide them today or before the end of the week.
Mrs Lewell-Buck
I thank the Solicitor General for that.
There is a further cost issue to consider, which is the impact the proposed change would have on local authorities. Last week, the Minister and I had a long discussion about the ongoing dialogue with local authorities. I stand by what I said last week. I am not convinced that discussing with local authorities the impact of these burdens that will be placed on them once the Bill is already in place is the right way to do things.
Asylum seekers who find themselves destitute will be scooped up by local authority services—statutory homelessness services, child protection services under the Children Act 1989, mental health services, adult social care services and so on.
Immigration Bill (Twelfth sitting)
Robert Buckland Excerpts(9 years ago)
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The Solicitor General (Robert Buckland)
Clause 32 repeals section 3D of the Immigration Act 1971, which extends a migrant’s leave where that person’s leave to enter or remain is revoked or was varied with the result that he or she has no leave to enter or remain in the United Kingdom, and an appeal or administrative review of the variation or revocation decision could be brought or is pending.
Following the changes to the appeal system introduced by the Immigration Act 2014, it is no longer possible to appeal against the revocation of leave or the decision to vary leave where the consequence of that variation is that the person has no leave; it is also not possible to seek an administrative review of those decisions. Where somebody still has a pre-2014 Act appeal pending against the decision to revoke immigration leave or a relevant variation decision, there are transitional arrangements in place so that their leave extended under section 3D continues until their appeal is finally determined.
In a nutshell, given that section 3D no longer serves any purpose, it is right that it and references to it be removed from the statute book to avoid unnecessary confusion, and indeed to nod to a recent judgment by the Court of Appeal in which Lord Justice Elias said that he was concerned about over-complexity in the law in this area. It is in pursuance of that important function that I move the clause.
Anne McLaughlin (Glasgow North East) (SNP)
The clause will also cause problems for anyone seeking to have their claim handled in a just manner, because leave can be revoked if a person no longer meets the requirements for leave: for example, if someone is here as a spouse and they split up with their partner. Often, nobody is at fault, but imagine being the injured party who, to add insult to that injury, is then considered not to have the right to live where they have been living. By forcing the departure of those whose leave has been revoked but who are already well integrated into society and are law-abiding citizens and who have freshly been deemed illegal for whatever reason, including the one that I just mentioned, but who may in fact not be here illegally, the Government are making it difficult for justice to be done.
No immigration worker will make a correct judgment in all cases. I think we have all accepted that the accuracy of far too many judgments has been shown to be wanting by an appeal. The Minister talked about his frustration that Opposition Members seem to refer constantly to wrong decisions by the Home Office, and he is right—it is not always the Home Office’s fault—but sometimes it is about things that, although they may be the fault of the person applying, are trivial. For example, I had a friend who was married to a Sri Lankan and wanted her husband to live here with his wife and child, understandably. She was refused, and she had to start the entire process all over again because she inadvertently enclosed a photocopy of the wedding certificate instead of the original. [Interruption.] I can see from the Solicitor General’s response that we all agree that that is trivial. Sometimes it is the fault of the person applying, but the reasons are silly.
The Solicitor General
I am very familiar with cases of that nature, as I have many such constituency cases; I know exactly what the hon. Lady is talking about. There is an important policy purpose behind ensuring that we have original documents. I think that she can see the obvious point about the danger of relying on a copy that might not be a true representation of the original. If that is explained clearly to people—the guidance discusses the need for original documents rather than copies—hopefully such misunderstandings will cease. Probably in the case in question the application is entirely genuine, but there is a need to rely on original documents, and that is important.
Anne McLaughlin
I do not disagree, and my friend was very aware of the need to submit the original document; she just put the photocopy in accidentally without realising, but that meant that she had to start the entire process over again—and, if memory serves me correctly, she had to pay all over again. As well as people understanding how important it is to do the correct thing and provide the correct information, it would be useful if the Home Office could take into account the fact that someone made a mistake, and just ask them to sort it out. That is just one example.
The Government are looking at this situation the wrong way around. Instead of improving the accuracy of the original judgments or taking into account what we just talked about—the fact that problems could be sorted out relatively quickly—if feels as if they are trying to hinder reviews and appeals, worthy or not, by hampering appellants in submitting their claims. Human error alone will lead to faulty judgments which—given the consequences, such as having to appeal from overseas, or criminalisation for remaining in the UK—will inevitably lead to human suffering that could have been avoided. That is why previous legislators included a workable administrative review and appeals system. Those of us who have knowledge of that system will be familiar with its problems, but they pale into insignificance in comparison with the general policy of appeals from overseas and the criminalisation of those whose leave has expired.
There should be no doubt: those who support part 4 of the Bill will needlessly split up families. The fact that it will be impossible for families to stay together while appeals are dealt with makes a mockery of the Government’s professed support of family values. The family life of British citizens with foreign family members could hinge on such minor matters as faulty judgments, typos, stray documents or, to use my recent example, the accidental submission of a photocopy, which should be picked up during the appeal. Tat is no way to run an immigration system.
Keir Starmer (Holborn and St Pancras) (Lab)
I want to make sure I have understood the measure. As I understand it, section 3D leave was for people whose leave had been cancelled or curtailed by the Home Office for various reasons including deception, so that they could bring an appeal—so they would be entitled to remain to bring an appeal. That seems sensible. There might be an error and it is usually best to put errors right. I have worked in a big organisation of 9,000 staff making hundreds of thousands of decisions. There is an always an error rate, however well trained the staff. It seems sensible therefore that if there has been an error the person in question should have the right to remain and appeal.
What happened, I think, is that the right of appeal was removed last year, but on an undertaking that there might be administrative review. Again, that might be quite sensible: we will remove the right of appeal but provide a different mechanism so that someone can simply correct a wrong decision. I understand that the administrative review procedure has not been put in place. Now, in cases where a decision is made to cancel someone’s leave, the Government want to strike out section 3D on the basis that since they will not let the individual affected do anything about it, there is no point in it. So when a wrong decision is made about an individual, what are they to do—in a nutshell?
The Solicitor General
I am grateful to hon. Members for their contributions to the debate. The hon. Member for Glasgow North East is concerned about the availability of administrative review. I am grateful for her more general observations, and I hope I answered them in response to the debate on clause 31; I hope that she will forgive me for not repeating my observations on those points. I mean no disrespect.
On the hon. Lady’s specific points, we do not think that administrative review should be available where a person has their immigration leave cancelled or revoked. There are a number of circumstances where it would not be appropriate. One example would be where a migrant worked in breach of their immigration conditions and had their leave cancelled. Another example would be a person whose conduct or behaviour has made it undesirable for them to remain here—people who facilitate sham marriages, for example.
Anne McLaughlin
Did the Solicitor General just say that the reason there should not be administrative reviews is because there are a number of circumstances in which they would not be appropriate? Surely we can surely write out the right for cases where it would not be appropriate, but still allow administrative reviews? If there are some cases where review would not be appropriate, there must be some where it would be very appropriate.
The Solicitor General
I will come to that point and the point that the hon. Lady made about error. It is an amplification of the intervention she kindly allowed me to have. In place of administrative review, the Home Office has an error correction policy for when immigration leave is cancelled. So an application for error correction under the policy does not extend the immigration leave, but it does allow errors to be raised with the Home Office. We are getting the balance right between effective immigration control on the one hand and the fairness point that the hon. Lady quite properly raised.
The Solicitor General
I will in a moment. I just want to finish this point. The Home Office contacts people who make applications and who have paid a fee to give them the opportunity to correct errors in their applications.
The Solicitor General
There are examples. The case of Iqbal, which we cited yesterday, was an example where individuals were invited to correct errors. So the process works. Statistics show that only 2.45% of applications were found to be invalid—invalid is when an application is made, but because of error it is of no effect, so the process is having an impact, which is good. I accept the point that the hon. Lady made about the case that she raised, but we believe that the error correction policy fills a particular gap and addresses the mischief that hon. Members have raised.
Keir Starmer
An error correction mechanism is a very good idea. I tried to introduce one in the Crown Prosecution Service to avoid people having to go to court. It provides a much quicker process and allows staff to understand where errors have occurred and correct them, but it is not foolproof by any stretch of the imagination, and there will be wrong decisions that are not picked up by an error correction mechanism. What happens in such cases? Simply saying there are some people who might bring inappropriate appeals, therefore there should not be a right of appeal, is, when broadened, an argument against any appeal in any case of administration decision. Of course some people will bring inappropriate cases.
The Solicitor General
Let us not forget the context here. We are dealing with situations in which people have had their leave revoked or varied because of due process, and a trigger event will have allowed that to happen. It is not fair to say we should look at such cases as a blank page where an administrative review might be the first opportunity for the issues to be aired. There is a residual and important right to judicial review of Executive decisions as well, so the checks and balances are there.
Keir Starmer
I am interested in this because, as we have gone through the proceedings, every time we hit the problem that there is no simple appeal or review, the suggestion is to go for a long shot—judicial review, which everyone knows is a long and expensive process. Has there been consultation with the judiciary on the policy of requiring all these cases to go to the High Court by way of judicial review as the only avenue of review? I think there would be concern about all these cases going to the High Court when they could have been dealt with much more cheaply, swiftly and efficiently.
The Solicitor General
in the context of how we approach judicial review applications, the hon. and learned Gentleman will remember that concern was expressed a few years ago by members of the coalition Government about the rise in judicial review applications. He will know that the lion’s share arose from immigration cases. As a result of the adjustments and changes made under the previous Government’s legislation, that rise will be checked. There will therefore be a situation in which, rather than adding to an additional upward trend, this measure will make little difference. To respond to his question, I do not have a formal assessment, but I am not overly alarmed or concerned about a potential spike in applications for judicial review.
The Solicitor General
I hope I can deal with clause 33 as expeditiously as possible. As I mentioned earlier, the 2014 Act reformed rights of appeal and refocused the appellate system on appeals against decisions that affect protection and human rights claims. Before the changes made by the 2014 Act, there was a right of appeal where leave to enter the United Kingdom had been refused. Paragraph 2A(9) of schedule 2 to the 1971 Act provided a right of appeal where a person who had been granted entry clearance prior to their arrival had had that clearance cancelled on arrival at the UK border. It did that by providing that such cancellation decisions equated to refusals of leave to enter—in other words, it brought them within the definition of section 3D of the 1971 Act.
The changes made to appeal rights by the 2014 Act mean that there is no longer a right of appeal against the decision to refuse leave to enter, so paragraph 2A(9) no longer serves any purpose. For the same reasons I outlined earlier, it is right to remove it from the statute book to avoid unnecessary confusion. There is a saving provision in place to preserve the appeal rights of persons with a pending appeal against the cancellation of entry clearance under the previous appeals regime. Transitional provisions are in place so that there is no undue prejudice to individuals whose cases are currently in the system. For those reasons, I commend the clause to the Committee.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
Clause 34
Support for certain categories of migrant
Question proposed, That the clause stand part of the Bill.
The Minister for Immigration (James Brokenshire)
We now move to a new part of the Bill, part 5, which deals with support for certain categories of migrant. Some detailed amendments have been tabled to schedule 6, and clause 34 is almost like a bookmarker to insert schedule 6 into the Bill’s substantive provisions. It might help the Committee in its consideration of those amendments when we debate schedule 6 if I set out the Government’s overall intentions in introducing the measures and explain how they are intended to operate.
The starting point should be the basic policy that we are seeking to advance. We say that it is not appropriate for public money to be used to support illegal migrants, including those whose asylum claims have been found to be without merit, who can leave the UK and should do so. That is the starting point for understanding how schedule 6 will apply. It will restrict the availability of such support, consistent with our international and human rights obligations, and will remove incentives for migrants to remain in the UK when they have no lawful basis for doing so—I stress the latter point. In doing so, the Bill addresses long-standing issues with the system of asylum support.
Immigration Bill (Ninth sitting)
Robert Buckland Excerpts(9 years ago)
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Anne McLaughlin
This is the first time during the consideration of the Bill that I have noticed the Minister looking impatient. I appreciate that I might just be putting my interpretation on things, but he has been shaking his head and he looked quite defensive to me.
Anne McLaughlin
Do you want me to sit down and take interventions? I think that we have hit a sore spot, because the Minister is well aware that the measures will have a significant impact on—
The Solicitor General
It is a pleasure to serve under your chairmanship, Mr Owen. Clause 16 amends schedule 2 to the Immigration Act 1971 to insert new paragraphs 25CA, 25CB and 25CC. These new provisions provide the power for an authorised officer, such as an immigration or police officer, to search for and seize a United Kingdom driving licence held by a person not lawfully resident in the UK. Searches of people and/or premises can be carried out. The clause builds on the existing power introduced by section 47 of the Immigration Act 2014. That provision allows for driving licences held by illegal migrants to be revoked. This relates to driving licences issued both by the Driver and Vehicle Licensing Agency and the Driver and Vehicle Agency in Northern Ireland.
Subsection (2) of clause 16 inserts the new paragraphs which set out the circumstances in which the search, seizure and retention powers may be used. Safeguards are provided through a requirement that there must be reasonable grounds to perform a search. With the exception of a constable, authorised officers must generally also obtain the consent of a senior officer before conducting a search, unless it is not reasonably practicable to do so. A seized licence must be returned to the holder if a decision is taken not to revoke it or where the holder successfully appeals against revocation.
Subsection (3) of clause 16 amends the Immigration Act 1971 to provide that the holder of a seized licence cannot have access to that licence or be provided with a copy. That ensures that a copy of the licence cannot then be used as a form of identification that might help a person settle unlawfully in the United Kingdom. Subsection (4) amends the Immigration and Asylum Act 1999 to allow an authorised officer to use reasonable force when searching for or seizing a licence.
Keir Starmer
I am grateful for that explanation, but I want to clarify the position. I think, having listened to the Solicitor General, that the primary purpose of the clause is to enable a valid—on the face of it—driving licence to be seized for the purposes of revocation, and if it is not revoked or if it is challenged, it is returned. It would be helpful if the Solicitor General could confirm that that is the driving purpose of the clause.
The Solicitor General
I am grateful to the hon. and learned Gentleman. The position is that, for revoked and unrevoked driving licences, the power will be there to seize both. For example, a valid driving licence can be seized and proceedings then undertaken to revoke it because it is held by someone who ought not to be here.
Keir Starmer
I do not think we are at odds, but I need to ensure that I understand. The process is straightforward where a driving licence is invalid or already revoked, but if a licence is not revoked and is, on its face, valid, the purpose of the provision is to allow a revocation process to be completed.
Sarah Champion
I understand the principles and the motivation behind the provisions, but I have some concerns about clauses 16 and 17. As with the right to rent provisions, they will undoubtedly have an impact on legal migrants, British citizens who cannot easily prove their immigration status and ethnic minorities. The measures could lead to an increase in the racial profiling of drivers. The powers are worrying in that they are, in fact, stop-and-search powers. If they are exercised by immigration officers those officers need to be regulated in the same way as police officers are, with checks and balances to prevent abuse of power. Can the Solicitor General spell out how the rights of individuals will be protected, and what redress they will have for wrongful or repeated searches and arrests?
The Solicitor General
I would, Mr Owen.
In our evidence session, those points were, quite properly, put to the chief superintendent, and we received reassurances that it is all about intelligence-led policing and intelligence-led investigations by immigration officers. The provisions will not, in my view, lead to the random targeting of people based on their ethnicity. That would be wholly wrong and it is not something that the Government support.
As I said, the police will have cause to stop a vehicle; they may then check the driver’s circumstances, and then, if the driver is found to be an illegal migrant, the powers we intend to introduce can be used. There will not be a misuse of power, as the action taken will be based on information that is already available. Bearing in mind the demands that are placed on our investigative authorities, it is a sensible use of their resources. Certainly I, and the Government, will not encourage the authorities to randomly target individuals based on any arbitrary judgment about their status. I hope that that gives the hon. Lady the reassurance she seeks.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clause 17
Offence of driving when unlawfully in the United Kingdom
Keir Starmer
I beg to move amendment 75, in clause 17, page 19, line 39, at end insert—
“(1A) A person does not commit an offence under subsection (1) if they had a reasonable belief that they had legal right to remain in the United Kingdom and acted in good faith.”
This amendment would provide a defence for those prosecuted for driving while illegally in the UK if they can show that they had a reason to believe that they did have legal right to be in the UK.
Sarah Champion
As I said earlier, we do not have a problem with clauses 16 and 17. The two amendments are designed to protect innocents. If the Minister is able to confirm that protection is in place, either in guidance or in the Bill, we would like to hear it.
The Solicitor General
Let me deal first with the question raised by the hon. and learned Gentleman about the evidence. There is a loophole involving people who are unlawfully here—illegal migrants—who are driving with foreign-issued licences. The offence will cover all aspects of driving by migrants who are in the United Kingdom unlawfully.
Every year, about 10,000 queries are referred to the Home Office by the police relating to either road-side stops or vehicle stops. We do not have precise numbers on cases where an illegal migrant was found to be driving a vehicle, but of the one fifth of cases related to vehicle stops, about 10% relate to drivers who are in the UK legally. I am talking about a loophole here. I think it is right that we try to close that when it comes to covering all incidents in which the authorities through other intelligence and other reasons to stop vehicles come into contact with people who are here unlawfully. The provision is another important tool to deal with a matter of public concern.
I recognise the reasons behind amendment 75, but in my view it is very broad and very subjective. It will create scenarios, for example, in which a defendant might claim they had reason to believe they were in the UK legally, simply because they had misunderstood the date on which their leave expired. It would be difficult to prove otherwise and then the purpose of the offence is undermined.
Let me deal with offences of strict liability in the context of driving. This concept is not new. For example, the offence of driving while disqualified under section 103 of the Road Traffic Act 1988, as amended, is an offence of strict liability, so this is not a new departure, although the defence would be a new departure when it comes to driving offences of this nature.
Keir Starmer
I am grateful to the Solicitor General for his explanation. I readily accept that this quasi-strict liability is not uncommon when it comes to driving and disqualification. The difference is that if someone is disqualified, they know they are disqualified. If there were a situation in which somebody, perhaps through sponsorship, genuinely and simply did not know that their status was as it was and would come within this defence, is the Solicitor General’s answer that that is just tough?
The Solicitor General
Not quite. There are a couple of caveats. First, a person who is prosecuted for this offence has the opportunity before the court issues judgment to put in mitigation about their belief as to whether they were legally present in the UK, and that would affect any sentence that might be passed by the court. Also, the Crown Prosecution Service will have guidance to ensure that migrants are not inappropriately prosecuted for this offence. Should a migrant be able to genuinely show that they believed themselves to be legally present, the public interest test, with which the hon. and learned Gentleman is very familiar, would apply.
Keir Starmer
I am grateful—I can see where this is going. Obviously, any guidance will be for the CPS to draft. Will the Solicitor General be writing to the Director of Public Prosecutions to ask her to consider whether this matter should be included in the guidelines? Obviously, it would be a matter for her, but he could suggest that she consider it.
The Solicitor General
I am more than happy to draw the DPP’s attention to this debate, which I hope will be of assistance to her in drafting guidelines.
I assure the Committee that the offence is not aimed at victims of modern slavery who have been forced to drive. I hope that goes some way to answering the concerns raised by the hon. Member for Rotherham. As she is aware, the statutory offence under section 45 of the Modern Slavery Act 2015 will apply. If a person has been compelled to drive as a direct consequence of slavery or human trafficking, they will not commit this offence. Further, there are common-law defences. For example, it will remain a defence for someone to show that they committed the offence under duress, regardless of whether they are a victim of modern slavery. I have mentioned potential new guidance, and there is existing guidance from the DPP to ensure that victims of modern slavery are not inappropriately prosecuted. These are effective safeguards against the inappropriate use of the offence that hon. Members have expressed concerns about.
Amendment 76 has been tabled because of genuine concerns about the validity of motor insurance. We are exploring with the insurance industry the potential impact of the offence on policies, but I can give reassurance today that a person involved in an accident with an illegal migrant driver will be protected. By virtue of sections 151 and 152 of the Road Traffic Act 1988, insurers have certain liabilities to innocent third parties that they cannot exclude from insurance policies. Those liabilities derive from obligations under European law which mean that an innocent third party involved in a traffic collision with an illegal migrant driver will be entitled to make a claim on the illegal migrant’s insurance policy, even if the policy is voided as a result of the migrant being unlawfully present here.
Keir Starmer
I am grateful for those explanations and beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Solicitor General
I beg to move amendment 44, in clause 17, page 20, line 33, leave out “as to whether” and insert “not”
This amendment and amendment 45 clarify that a vehicle must be released where a decision is taken not to institute criminal proceedings for the offence of driving when unlawfully in the United Kingdom.
The Solicitor General
As we know, clause 17 inserts a new offence of driving while unlawfully present. Amendments 44 and 45 are technical in nature. They make clear that a vehicle must be released from detention where a decision is taken not to institute criminal proceedings for the offence of driving when unlawfully in the United Kingdom.
Amendment 46 ensures that a police or senior immigration officer may detain a vehicle at any place where they are lawfully present, including private property that is open to the public, such as a privately owned car park. Amendment 47 provides a power for the police or a senior immigration officer to enter premises, such as the suspect’s property, for the purpose of searching for and detaining a vehicle used in the commission of the offence. Those two amendments ensure that a person cannot frustrate seizure of the vehicle used in the commission of the offence by keeping it on private land, such as in a garage. Amendment 47 also provides that the power to enter premises may be exercised by a senior immigration officer or constable without warrant, where the officer knows the vehicle is present—for example, they can see the suspect’s car parked on the driveway. Where a senior immigration officer or constable has reasonable grounds for suspecting that a vehicle may be found on premises but does not know it is there, the amendment provides the facility to apply for a warrant enabling the officer or constable to enter premises to search for the vehicle.
The provisions for obtaining a warrant reflect certain differences in the legal, procedural and administrative framework governing the issuing of warrants between Scotland and the rest of the UK. In particular, the Scottish criminal justice system does not provide for warrants to be issued for multiple entries to multiple premises by constables in Scotland. These forms of warrants are a feature of the Police and Criminal Evidence Act 1984 in England and Wales. The amendment therefore makes special provision to disapply this form of warrant for constables in Scotland. I hope Scottish National party Members note that great care has been taken to ensure that the two systems dovetail in a way that is acceptable to everyone.
Amendment 48 ensures that a person accompanying a constable in the execution of a warrant, such as a person contracted by the police to remove and store a vehicle used in the commission of the offence, may detain that vehicle. It also provides that a constable may use reasonable force in order to detain a vehicle.
I invite the Committee to accept those amendments.
Amendment 44 agreed to.
Amendments made: 45, in clause 17, page 20, line 35, leave out “have been” and insert “are”.
See the explanatory statement for amendment 44.
Amendment 46, in clause 17, page 20, line 45, at end insert—
‘( ) A power in subsection (1) or (3) may be exercised by a senior officer or constable at any place at which the senior officer or constable is lawfully present.” —(The Solicitor General.)
This amendment makes clear that a vehicle can be detained by a senior officer or constable at any place they are lawfully present.
Keir Starmer
I beg to move amendment 74, in clause 17, page 21, line 30, at end insert—
‘(10A) Before laying regulations to bring Section 24D into force, the Secretary of State must ensure a pilot of the arrangements takes place.
(10B) Following the completion of the pilot mentioned in subsection (10A) the Secretary of State must prepare a report and lay it before each House of Parliament.
(10C) The pilot mentioned in subsection (1) must take place in a minimum of two police force areas and last for a minimum of six months.”
This amendment would ensure that the Home Secretary conducted a pilot of the proposed powers to allow police forces to confiscate the cars of suspected illegal immigrants before the measures were introduced.
I can deal with this amendment briefly. We have debated the provisions in the clause itself. Several concerns have been raised and several assurances have been given by the Government, but these are new provisions, so the amendment simply provides that they should be piloted before they are rolled out, partly to ensure that those assurances work in practice and partly because, when introducing new provisions of this sort, piloting is always a good idea to ensure that they work in practice. However, the substance of the debate has already been had, in terms of the concerns and assurances.
Sarah Champion
I was on the Select Committee for Transport and went out with the DVLA when it was doing some of its stops with police officers. I apologise for raising this question in this debate, but I did not know where else to raise it. I was shocked when the Minister said that 10,000 inquiries were made to the police last year. I know that the DVLA has vast concerns that it does not have the resources to investigate people driving illegal vehicles rather than illegal driving. How will the police, immigration and the DVLA work together? Also, has he considered the resources, which will be considerable if there are already 10,000 inquiries? Acting on those and investigating will be pretty resource-intensive. Can he comment on that?
The Solicitor General
I will certainly endeavour to answer the hon. Lady’s queries, but I will deal first with the substance of the amendment. I understand fully the intention behind it, but I view it as unworkable for two reasons. First, the regulations will set out the circumstances in which a vehicle may be released from detention and make provision for how vehicles should be disposed of where conditions governing the release of a vehicle are not met. Without laying regulations, therefore, we will not have the necessary legal powers to conduct a fully functioning pilot. I hope that the hon. and learned Member for Holborn and St Pancras can accept that.
Secondly, there is a point of principle here that I am sure he will understand straight away. A pilot would require a criminal offence to be enforced in certain parts of the United Kingdom and not in others. Such a piecemeal approach is clearly not desirable from a practical point of view given, for example, that vehicles can be driven across a number of regions. I do not know about you, Mr Owen, but the thought of car chases in 1980s American films is coming to my mind, where people cross a state boundary and offences that might have been committed in one state are not enforceable in another.
The Solicitor General
I am sure that the hon. and learned Member for Holborn and St Pancras would not wish us to go down that particular path—it is axiomatic, but it needs to be said. A pilot could therefore create confusion for migrants and complicate matters for the police when enforcing the offence.
As I have said, the chief superintendent, David Snelling, indicated to the Public Bill Committee in his evidence how the offence could work in practice. He explained that the police would first have cause to stop a vehicle and would then, as appropriate, ascertain the circumstances of the driver. If it is found that the driver is here illegally, the detention provisions can apply. The police are well versed in general processes relating to detaining, releasing and disposing of vehicles, so there are no new processes in the clause that might justify a pilot.
I will attempt to deal with the concerns of the hon. Member for Rotherham. The statistics that I mentioned concerned referrals to the Home Office. There is already a high degree of joint working and information sharing, which is proving an effective means for targeting and appropriately identifying people who are here unlawfully. On resources, for example training, the Home Office has been working with the police on developing the proposals and will continue to examine the potential need for further training with police colleagues. However, as I have said, these are not new types of power, so there is no absolutely overwhelming need for a complete start again on training.
I am assured that immigration resources are already in place and, as I said, this is not about a sudden general expansion in our expectation of how the police are going to behave. This is not an encouragement to the police to start randomly stopping people, which would of course have a huge impact on resources. Intelligence-led policing is not only intelligent, it is efficient. For those reasons, I hope that I have answered the genuine concerns that the hon. Lady raised.
Sarah Champion
With respect to the Minister, I am not concerned about resources for training; I am concerned about resources to have the police officers who can go out, stop or go into premises. In the Home Office cases that I get, a lot of the delays in deportation are caused by a lack of staff to carry out the work. Can the Minister reassure us that if we agree to this legislation, the police have the resources to act on it?
The Solicitor General
Yes, I can. Perhaps I have not clearly outlined that we do not expect police officers to take on a whole new swathe of different inquiries, independent of already existing intelligence and information; rather, this provision is a bolt-on. It allows police officers to follow another reasonable line of inquiry as a result of the intelligence they have already obtained. The scenario that the hon. Lady is concerned about is not one that is going to come to fruition. This is about putting another tool in the box, rather than an expectation that there are suddenly going to be new independent operations as a result of these new powers. I hope that gives the hon. Lady some reassurance.
Keir Starmer
The Minister mounts a “Dukes of Hazzard” defence. I am not quite sure that is right, because this provision is focused on the confiscation of the vehicle rather than the moving vehicle, but he makes a persuasive argument about the technical issue, which is his best point, and on that basis I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 47, in clause 17, page 21, line 32, at end insert—
“24DA Powers to enter premises to detain motor vehicle
(1) A senior officer or a constable may enter and search any premises for the purposes of detaining a vehicle under section 24D.
(2) The power in subsection (1) may be exercised—
(a) only to the extent that it is reasonably required for that purpose, and
(b) only if the senior officer or constable knows that a vehicle which may be detained under section 24D is to be found on the premises.
(3) The power in subsection (1) may be exercised—
(a) by a senior officer (“S”) only if S produces identification showing that S is an immigration officer (whether or not S is asked to do so);
(b) by a constable (“C”) only if C produces identification showing that C is a constable (whether or not C is asked to do so).
(4) Subsection (5) applies if, on an application by a senior officer or constable, a justice of the peace is satisfied that there are reasonable grounds for suspecting that a vehicle which may be detained under section 24D may be found on premises mentioned in subsection (6).
(5) The justice of the peace may issue a warrant authorising any senior officer or constable to enter, if need be by force, the premises for the purpose of searching for and detaining the vehicle.
(6) The premises referred to in subsection (4) are—
(a) one or more sets of premises specified in the application, or
(b) subject to subsection (10), any premises occupied or controlled by a person specified in the application, including such sets of premises as are so specified (in which case the application is for an “all premises warrant”).
(7) If the application is for an all premises warrant, the justice of the peace must also be satisfied—
(a) that there are reasonable grounds for believing that it is necessary to search premises occupied or controlled by the person in question which are not specified in the application in order to find the vehicle, and
(b) that it is not reasonably practicable to specify in the application all the premises which the person occupies or controls and which might need to be searched.
(8) Subject to subsection (10), the warrant may authorise entry to and search of premises on more than one occasion if, on the application, the justice of the peace is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which the justice issues the warrant.
(9) If it authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.
(10) A justice of the peace in Scotland may not issue—
(a) an all premises warrant under this section authorising entry on premises by a constable, or
(b) a warrant under this section authorising multiple entries by a constable.
(11) In the application of this section to Scotland, references to a justice of the peace are to be read as references to the sheriff or a justice of the peace.
(12) In this section “senior officer” means an immigration officer not below the rank of chief immigration officer.”
This amendment provides the police and immigration officers with the power to enter premises in order to detain a relevant vehicle. This ensures that an illegal migrant who commits the offence of driving when unlawfully present in the United Kingdom cannot frustrate seizure by keeping the vehicle on private land.
Amendment 48, in clause 17, page 22, line 22, at end insert—
‘( ) In section 16(2A)(b) of the Police and Criminal Evidence Act 1984 (powers of persons accompanying constables in execution of warrants) after “seizure” insert “or detention”.
( ) In Article 18(2A)(b) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 22)) (powers of persons accompanying constables in execution of warrants) after “seizure” insert “or detention”.
( ) In section 146(2) of the Immigration and Asylum Act 1999 (use of reasonable force) before paragraph (a) insert—
“(za) section 24DA(1) (powers to enter premises to detain motor vehicle),”.”—(The Solicitor General.)
This amendment ensures that a person accompanying a constable in the execution of a warrant may detain a vehicle and that a constable may use reasonable force in order to detain a vehicle.
Clause 17, as amended, ordered to stand part of the Bill.
Clause 18
Bank accounts
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss amendment 77, in clause 54, page 45, line 11, at end insert—
‘(4A) A statutory instrument containing regulations under subsection (1) in relation to Section 18 shall only be made after having been laid in draft before each House of Parliament and approved by a resolution of each House.”
This amendment would require the regulations bringing into force Clause 18 to be subject to debate and approval by the House of Commons and the House of Lords.
The Solicitor General
Without anticipating the arguments of Opposition Members, I will try to deal with matters in the round so that we can be as efficient as possible. I will speak to clause 18 and schedule 3 because they are indelibly linked and provide new powers to tackle existing bank accounts held by illegal migrants. That includes accounts that were opened during a period of legal stay by a person who is now, as a result of due process, deemed to be unlawfully in the United Kingdom.
These measures build on the Immigration Act 2014, which prohibits banks and building societies from opening new current accounts for known illegal migrants. As with other measures in the Bill which deny services to illegal migrants, the aim is to deter illegal migration and to encourage those who are here unlawfully to leave the country. The process introduced by the Bill will operate in the following way. First, banks and building societies—I will use the generic term “banks” to refer to both—must carry out immigration checks on all their current accounts at regular intervals. The check will be made against the details of known illegal migrants which the Home Office shares with an anti-fraud organisation, currently CIFAS. Secondly, the bank must notify the Home Office of any matches that it believes it has found. Thirdly, the Home Office, if it confirms that the person is disqualified from holding an account, will then have a range of options available to it.
Keir Starmer
I am grateful for that clarification, Mr Owen. To some extent, given the way that it is set out, the amendment pretty well speaks for itself in any event. There is obviously a distinction between the freezing provisions and the closure provisions, in terms of the right of appeal open to individuals. It may be that the Minister can give a degree of assurance about how that will operate, but the reason I raised it at this stage is because amendment 77, requiring scrutiny, is to some extent premised on the concern about that limited class of individuals. I take it together in that way, but I hope I have made the sprit clear. This is about being supportive of the approach, but also exploring and seeking assurances on what happens in the case of an error that could be very costly to the individual.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Schedule 3
Bank accounts
The Solicitor General
I beg to move amendment 22, in schedule 3, page 70, line 35, leave out “or a court of summary jurisdiction”.
This amendment and amendment 23 change the definition of “relevant appeal court” for appeals in Northern Ireland. The effect is that an appeal against a decision by a court of summary jurisdiction in Northern Ireland to make a freezing order is made to a county court instead of the Crown Court.
The Solicitor General
Amendments 22 and 23 change the definition of “relevant appeal court” in relation to appeals in Northern Ireland. In effect, the amendments change the court to which an appeal against a freezing order is made. Where the order was made by a court of summary jurisdiction in Northern Ireland, the appeal would be to a county court rather than the Crown Court, which is the appropriate court in these circumstances. These amendments are the result of engagement with the devolved Administration in Northern Ireland in particular to make sure that these provisions are appropriate for the circumstances.
Immigration Bill (Second sitting)
Robert Buckland Excerpts(9 years, 1 month ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
Q 142 Good afternoon. We are now on the seventh panel of witnesses and we will have oral evidence from the Metropolitan police and from Sandwell Metropolitan Borough Council. This session will go until 4.15 pm.
Could the witnesses please introduce themselves for the record?
Stephen Gabriel: My name is Stephen Gabriel and I am the strategic manager at Sandwell Council with responsibility for private sector housing.
Chief Superintendent David Snelling: Good afternoon. My name is David Snelling. I am a chief superintendent from the Metropolitan police, but my role here is that I am chair of the National Police Chiefs’ Council—which has replaced ACPO—Vehicle Recovery Group.
The Solicitor General (Robert Buckland)
Q 143 I want to ask Chief Superintendent Snelling some questions about the provisions in the Bill relating to driving. An issue has been raised that somehow the progress being made by the Metropolitan police in particular in dealing with some of the problems relating to stop-and-search measures will be, in effect, hampered by the introduction of provisions relating to the search of vehicles that might be used by illegal immigrants. What do you say to that suggestion?
Chief Superintendent David Snelling: Perhaps I can give a theoretical example from an operational perspective of how this practice is most likely to be employed. It is most likely that we will have come across something by a vehicle that we would have had some reason to stop, which would then enable us to do a check on ownership of the vehicle using the police national computer. At that stage, what we would probably do then is speak to the driver and ascertain his or her details. Again, we would then again do a check on the national police computer about them, but at the same time we would also carry out a driving licence check. That would give us some indication of the type of driving licence they held, if any at all.
So, regarding what we would call the traditional stop-and-search provisions whereby we see somebody acting suspiciously in the street, we go and question them—stop and search them—our interactions would be merely reactive, following on from cause to stop a vehicle and then ascertaining other provisions about the driver from there.
The Solicitor General
Q 144 So this is intelligence-led policing, as opposed to what I will frankly describe as some of the random stops and searches that we know disproportionately disadvantage people from the black and minority ethnic communities.
Chief Superintendent David Snelling: If I were perhaps to take out some of the language from there and talk about this particular instance, yes, we would have had cause to stop a vehicle, and we would have done further checks on the driver of that vehicle, which would enable us to deal with them in whichever way is appropriate.
The Solicitor General
Q 145 On the new power relating to the detention of a vehicle relating to a person unlawfully here in the United Kingdom, how will that dovetail with existing powers to detain vehicles?
Chief Superintendent David Snelling: We have a variety of powers to detain vehicles. We have a power to stop any vehicle to ascertain ownership and driver details. What we would then do is inquire into whether the driver has authority to drive that vehicle. The power we use most often at the moment would be stopping vehicles where there is no insurance or the driver is driving otherwise than in accordance with their licence—we find a lot of people with provisional licences who are not driving with L plates. In that respect, I would see it as a staged process: we would stop the vehicle, then ascertain the circumstances of the driver.
To fall within the provisions of the Bill, we would most likely need to do a further check with the immigration authorities, which at that stage would give us reasonable grounds—whether or not you could use the term “proof” is another thing—based on a search on the immigration database, to believe that that person is driving as an illegal immigrant. That would fall within the provisions of the Act—should the Bill be made an Act of Parliament. At that stage we would have the power to seize the vehicle, as we would currently do under driving without insurance.
The Solicitor General
Q 146 So the extra dimension is then the ability to check the Home Office database?
Chief Superintendent David Snelling: Yes, that is something we would require to actually exercise the powers proposed in the Bill.
The Solicitor General
Q 147 Are you satisfied that these provisions will not cut through or cut across the excellent work being done by the police service on reforming stop and search and having a much more intelligence-led approach to it, as opposed to the random problems that we all acknowledge we saw in the past?
Chief Superintendent David Snelling: In terms of the example I have given, it is a series of steps that we can say objectively are what have led us to form the suspicion. We would be referring to an authorised database, owned by a Government agency. That should allay the view of various members of the public that we would just be, to use your terms, stopping people on speculation.
Keir Starmer
Q 148 Chief Superintendent Snelling, can I follow up on the questions about driving? You have talked us through the way in which a vehicle would be stopped at the moment, using current powers. I think a number of licences have been revoked as the result of the exercise of existing powers, and of course when you find someone in a car who is not legally allowed to be here or has an irregular immigration status, there are various enforcement actions that can be taken in any event. Have you, on behalf of the chiefs’ council or in any other capacity, asked for a further offence of driving while not having a regular immigration status? In other words, have you identified a gap in your powers that has led you to ask for further offences to be considered because you have found a problem?
Chief Superintendent David Snelling: Can I give you a short answer?
Keir Starmer
Q 172 To be clear, absent that co-operation and support, in a simple case of deport first and appeal later, is your answer as I understand it, namely, that it is simply impossible to assess whether deportation is in the best interests of the child because the exercise is never carried out?
Adrian Matthews: I would add one thing. There are enormous practical difficulties in appealing from abroad, particularly for families who have been destitute in the UK. They will be going back with virtually no resources at all; questions about how you organise an effective appeal from abroad in those circumstances need to be answered. But I do not think it will be, because once they are out of the country, they are out of sight and out of mind. Appealing from abroad is a really tricky problem.
Kamena Dorling: Presumably you can envisage a situation in which there is a mind to remove a parent or a family from the country so that they can appeal from abroad, and we would move the family unit as a whole. That might not be detrimental to the child. Families move all the time. I could remove my son from the UK with me and that would still be in his best interests. I go back to the point that we do not have an assessment of the impact on the children so we do not know.
Ilona Pinter: To put this into a little perspective, one thing that is often overlooked is that deport first, appeal later is going to affect a range of families, including those in which the children are British, those who have status, those who do not have status or those who have an irregular status. We know from the University of Oxford that 120,000 children are undocumented in this country and over half of those were born and have grown up here. Many will not have the language of the country that they are being returned to; they may have never been there, as they have grown up here. Effectively they will be going to a country to which they have never been before.
On the point about British children, which is important, we have had cases in which families have been removed where we believed that the children were British. Because there is no system for finding out the best interests of the child, or even for checking details such as whether the child is British, or whether they would be stateless if returned, there is a real risk that those families would be removed and find themselves in very difficult circumstances.
The Solicitor General
Q 173 You are making an assertion that the best interest of the child is not part of the consideration of the decision maker—for example, in this provision relating to certification of whether a deport first, appeal later procedure should be adopted—but is that actually right? Is not the evidence that, on a case-by-case basis, each individual family situation will be assessed? There may be occasions when it is in the best interests of the whole family to deport the entire family, and there may be instances when it is better for the child to remain in the UK while the subject of the application is deported. Is it not really an issue of looking at matters on a case-by-case basis, rather than the blanket suggestion that the best interests of the child simply do not come into it?
Ilona Pinter: I think we agree that it is on a case-by-case basis. We are saying that there is no assessment of children’s best interests. The UNHCR report highlights strong examples in which children’s best interests were not taken into account in the decision making.
The Solicitor General
Q 174 Forgive me, but that is different, is it not? There may be some cases in which the view of the Commission is that the child’s best interests were not put front and centre, but that is different from saying that there is a blanket approach of not taking children’s best interests into account.
Adrian Matthews: There are cases, clearly, where it may be in the child’s best interest for the parent to be removed from the country—for example, if the child is affected by domestic violence. That takes individual consideration but, excluding those cases—the UN convention covers this—it is normally the case that it is in the best interest of the child to be brought up by both parents unless it is in their interest not to be. The sorts of circumstances you are envisaging would address that. Of course, decision makers will need to look at those factors but, in general, it is in the interest of the child to be brought up by both parents. We recently did some research on the family migration rules, and I was genuinely shocked to find out that missing parents for what might be considered, from an adult point of view, a short amount of time—a matter of months, but sometimes years and sometimes longer—has a profound effect on young children at a time of their life when they are forming bonds with their parents. It is essential that the state does not interfere with those early things, because that could be what you would regard as irreversible and serious harm.
The Solicitor General
Q 175 Which means that sometimes it will be in the interest of the family for the entire family and the children to temporarily leave the country together.
Adrian Matthews: It may be, but that would be very circumstance dependent. Of course, the immigration authorities have no power to remove a British citizen from the country. That might be in the family’s control, and families do make decisions to do precisely that.
Kamena Dorling: I think it comes down to a question of the current decision making that we see. We are not saying that there is a blanket disregard. I just do not think that in a lot of decision making there is meaningful engagement with what effect a decision will have on a child. As we have seen in guidance from the Supreme Court, you are first meant to assess what is in the best interest of the child before looking at competing considerations. No other considerations, not even immigration control, automatically trump what is in the best interest of the child. We do not really see that level of engagement in decision making; we see what I would call lip service: “We have a section 55 duty. Obviously we have considered this and it is fine.” I am paraphrasing, obviously.
There needs to be more onus on proactive assessment, and we have provided a case study in which the child was actually British—we were looking at the decision to remove that child—and because the mother could not show evidence that the child was British, she was going to be removed with that child. It was only in the process of the in-country appeal that the tribunal ordered the Home Office to look into the status of the father. It was then confirmed that the child was British and should not be removed. It is about that kind of proactive engagement.
Adrian Matthews: Part of the weakness of the system—you might be right that there is some consideration of the best interest of the child subject to immigration control—is that there is no consideration of the best interest of the child who is not subject to immigration control. That could be a settled child or a British national child. The decision-making process, because it is geared towards immigration, is not set up to look at the wider effects. A clear example is that the Home Office does not know how many children are affected by the family migration rules. It does not know how many British children and settled children are affected by the exclusion of a foreign national parent. The Home Office does not count them.
The Chair
That was an interesting and important exchange. I am conscious that Simon has been waiting patiently, and then I will bring in Anne, Craig, Mims and Kelly.
The Chair
I am sorry, but we are going to move on now. A number of people are indicating that they want to speak. I have Mims and Kelly down, but the Minister and Sarah want to make a brief intervention on this point.
The Solicitor General
Q 188 I was interested to hear the point about engagement in the process of deportation. Would you agree with me that there is an opportunity to do that, because people who are in a position of having had their leave refused and their asylum-seeking status rejected can apply for an extension of support from the Home Office, if they show that there is a genuine obstacle to their being removed; for example, ill health or a failure by the home state’s embassy or high commission to provide documentation? Do you think that mechanism is an opportunity for both sides to engage with each other, explore the obstacles and find a way forward that allows families to be deported?
Adrian Matthews: My understanding is that the precise conditions would be set by regulations. Is that correct?
The Solicitor General
Yes.
Adrian Matthews: It is very difficult to answer your question without seeing how those regulations will be set. The indication from the consultation was that they would be on fairly restricted grounds. You are correct that there was a mention of health but my experience is that—particularly where the Home Office engages with mental health issues—you are asking caseworkers to make decisions on things that they are really not competent to make decisions about such as the mental health of parents. We end up with quite a lot of distressing situations where the mental health of the parent might be a genuine obstacle but it is not recognised as such.
The Solicitor General
Yes, but my question was: is it not an opportunity for both sides to look at the evidence and come to an informed decision? I agree that people cannot make decisions on mental health unless they have evidence in front of them. If there is evidence that the applicant has a mental health problem, that should guide the decision making, should it not?
The Chair
Q 189 With a panel of three it is always difficult because each wants to give an opinion, so if we have one question to them, we will get the responses quickly. We only have four minutes. Two people want to ask questions and Sarah wants to make a brief intervention, so do not feel that you all have to respond to the questions.
Ilona Pinter: Can I make a point?
The UK’s Justice and Home Affairs Opt-outs
Robert Buckland Excerpts(10 years, 4 months ago)
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Mr Robert Buckland (South Swindon) (Con)
It is always a pleasure—nay, an honour—to follow my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who speaks with vigour and all the colour that we have come to expect from him. Those of us who have known him since long before 2010 know that he is characteristically forthright on these issues. Whether he is absolutely right on them is another matter, however, and it is to the issue about which he has rightly expressed concern today that I now turn, bearing in mind the time remaining and the need for other speakers to make their contributions.
Yes, the opt-ins do involve some concession of sovereignty. To try to deny that would be wholly wrong. The issue, therefore, is one of competence and the extent to which the European Court of Justice in Luxembourg determines issues that fall to be decided as to the interpretation and operation of the measures, subject to the opt-in. On that, to some degree I share some of the concerns raised by my hon. Friends on the Conservative Benches.
I am an opponent of judicial activism. As a politician who is philosophically of the centre-right, I do not believe that it is for judges to interpret treaties and other documents as living instruments that adapt according to their view of the world at any one time. We see that problem in the Court at Strasbourg and the Court in Luxembourg, but we also see that problem in the courts here in London, here in England, here in Wales, here in Scotland. This is not an issue that is particular to Europe and its institutions. That is a very important point when we remember the nature and scale of the task before us, because, to my mind, this is not a debate between Westminster and Brussels or Luxembourg; this is a debate about whether it is legislators—politicians—who ultimately determine the extent and ambit of our laws, or whether, as increasingly is the case, our laws are interpreted in different ways by judges.
The old certainty of politicians passing and enacting the laws and judges implementing them and making determinations on a case-by-case basis gets more blurred with the passage of the years, and that worries me, as a Conservative, and I know it worries all my fellow Conservatives. I know it worries my right hon. Friend the Lord Chancellor. We discussed the matter only yesterday in the Justice Committee, and he made some very wise interventions about his concerns about judicial activism.
Therefore, I thoroughly understand and embrace the concerns that are being expressed by my hon. Friends. What I take issue with them on is this: the full extent to which the European Court of Justice will have jurisdiction over the general run of justice and home affairs in this country. I accept that on the opt-out issues it will have jurisdiction, and there are dangers that, as we have seen with other interpretations—for example, of the free movement directive—there could be judicial creep and an extension beyond the original intentions of those who framed the directives we are talking about. But when it comes to the fundamentals of English and Welsh justice, I see no threat to the long-established traditions, customs, laws and practices that we have in our criminal courts. I see no threat to the principle of trial by jury. I see no threat to the inferences that are to be drawn from the exercise by suspects of their right to silence.
We have had debates on these things. I recall going with my right hon. Friend the Chair of the Justice Committee to Brussels to discuss a directive, which is now coming to the fore, about the inferences to be drawn from the exercise by the accused of the right to silence when arrested. We had a lively discussion in the justice directorate-general about the inappropriateness of that directive in its application to the criminal law of England and Wales. That sort of detailed case-by-case, directive-by-directive discussion will be the surest safeguard against the general creep that my hon. Friends and others fear.
Mr Jenkin
I admire my hon. Friend’s intellectual honesty in admitting that in respect of the European arrest warrant the activities of the European Court of Justice may lead to judicial creep, which may lead to a “wheelbarrow situation” and so on. If such were to occur, who would be accountable?
Mr Buckland
My hon. Friend asks the fundamental question we should always ask, about not just European legislation, but domestic legislation and the way in which we in this House have legislated in an unsatisfactory and ambiguous way that has opened the door to more and more judicial review, more and more challenge and more and more interpretation by domestic courts in ways that were perhaps not envisaged by the legislators. So I repeat the point and turn it back to him: I do not think this is a particular problem at a European level.
Mr Jenkin
If a wayward British court makes a judgment that is clearly not intended by Parliament but has arisen because of a perfectly legitimate and understandable interpretation of one of our own statutes, we can hold a Minister accountable, we can ask them to bring forward an amendment to the law and we can change the law. If the same happens in respect of European legislation, how do we hold the law accountable?
Mr Buckland
We have mechanisms within the European structure to do that, via the Council of Ministers, renegotiation, treaty change—
Mr Buckland
I disagree, and I am more than willing to talk briefly about how we renegotiate these things. Talk about repatriation is unhelpful. If we are going to get actual reform in Europe, we have to look at it across the piece. Addressing the issues of judicial activism and the way in which the ECJ interprets the articles of the European treaties is fundamental to any meaningful renegotiation to deal with the democratic deficit argument that my hon. Friend and others posit.
Mr Jenkin
I am very grateful for my hon. Friend’s generosity in giving way. I have served in this House for more than 20 years and I have seen court judgment after court judgment from the ECJ, or indeed from our own courts—in the Factortame case, famously, even a political agreement reached between the member states about our fisheries was overturned by a decision of the court—where the Minister here says that nothing can be done about it. That has been the case time after time. We are moving these decisions, and their consequences, beyond the democratic accountability of the national Parliament.
Mr Buckland
But remembering that the competence of the ECJ deals with the application of EU law in the UK, we have to be very careful about the words we use, because very often people misunderstand the full ambit of that Court. Another example would be the way in which case law in Strasbourg is wrongly assumed to be the law of this land—it is not the law of this land and never has been, not even under the much-reviled Human Rights Act. There are little misunderstandings that germinate into a general feeling among the public that we have lost control.
Mr Buckland
I disagree. It is up to us in this House and elsewhere to show leadership and to explain to people that we have not lost the degree of control that has been suggested. As much as I admire my hon. Friend, I sometimes think that his is a counsel of despair when it comes to the future of Britain in Europe. It is time for us to remind ourselves that we are still a country with huge influence and that we still have a massive part to play in the affairs and future of the European Union. We are one of the biggest economies in Europe, and there are very many strategic interests that make our membership of the EU good not only for us but for other member states.
Before I resume my seat, I will return to the issues at hand. The European arrest warrant is not only in this country’s interest because we can repatriate UK citizens from other member states who are alleged to have committed crimes in this country; it also ensures that EU nationals who are fleeing and evading justice in their own country can be sent back. Those practical realities bring us back from the theoretical debate that we sometimes have here. We are talking about real lives and the tragedies that surround every criminal case about which we have heard this afternoon, which we know is a real issue for those involved. Let us not forget the human element.
I have gone through the list of measures, and it seems that the principle of mutual recognition of criminal offences, for example, will be very important not because of the way in which we operate the courts in England and Wales but because of the way in which other member states recognise UK criminal convictions, which is an important point. If UK citizens go to other member states and commit offences, it is right and in the general interests of combating crime and properly reflecting criminality that their convictions recorded in the UK are properly recognised. Those are practical measures that not only address the need to combat crime but help to increase trade and commerce—all the efficacy arguments that are a natural part of what it is to be a member state of a developing Union that is the biggest market in the world. It is the continent of which we are a part. I think, therefore, that the practical realities reflected in the opt-in measures are a proper reflection of the absolute need for this country to work hand in hand with other member states and to ensure that we can have a criminal justice system that works well for all British citizens, not just here in the UK but in other parts of the EU.
The European arrest warrant has been properly criticised on the grounds of proportionality. My hon. Friend the Member for Esher and Walton (Mr Raab) will shortly wax lyrical on the matter with his customary expertise and I look forward to his contribution with interest, but I would say that the introduction of the amendments on proportionality in recent legislation goes a long way towards addressing the concerns that he and others have repeatedly expressed. I have the same sorts of concerns about the disproportionate use of such a serious measure. The decision to extradite or to remove someone from one jurisdiction to another is a serious step to take.
We have to be practical about this issue, and the Government have done everything they can to ensure that, although we have opted out of the general swath of measures—I think that was the right decision—we are, after looking at the evidence on a case-by-case basis, making the proper decision to opt in to the measures that we are debating today. On that basis, I am happy to support my right hon. Friends on the Front Bench.
Communications Data and Interception
Robert Buckland Excerpts(10 years, 4 months ago)
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Mr Robert Buckland (South Swindon) (Con)
Will my right hon. Friend reassure the House that the principles of proportionality set out in the ECJ judgment will be adhered to in the draft legislation, and will the new privacy and civil liberties board be able, among other things, to consider the need for a properly codified law of privacy and data protection in this country?
Mrs May
On the second point, we are still looking at the exact form that that board will take and its terms of reference. It would be premature for me to suggest that it went down a particular route on an issue that it was looking at.
On the question of proportionality raised in the ECJ judgment, we have addressed that in two regards. One of its arguments was that the scope of the data retention directive was too broad, so we are explicitly limiting data retention to a strict list of data types—those that were specified in our data retention regulations of 2009. It also raised the issue of an absolute period of time for which data needed were retained and the possibility that no consideration was being given to whether all data needed to be retained for the same length of time. The new Bill therefore makes the data retention period not 12 months but a maximum of 12 months to provide for some flexibility if appropriate.
Child Abuse
Robert Buckland Excerpts(10 years, 4 months ago)
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Mr Robert Buckland (South Swindon) (Con)
As someone who called for an overarching review, may I warmly welcome my right hon. Friend’s statement? Does she agree that one of the possible causes of the seeming culture of impunity that existed in the ’70s and ’80s was the fact that the courts made no adjustment whatsoever for the evidence of children and young people and there was a statutory requirement that juries in England and Wales had to be warned about the absence of corroborative evidence in sexual complaints?
Mrs May
My hon. Friend’s experience of matters relating to the courts is, of course, greater than mine, but I think he is absolutely right that one of the things that has developed over the years has been a willingness of the criminal justice system as a whole to recognise the need to put in place more specific support for those vulnerable witnesses, to ensure they are able to bring their evidence forward. Of course justice requires that the evidence that people give is appropriately challenged, but it is important that over the years—not just in issues relating to child abuse, but in some other matters as well—the courts have recognised the need to make sure that witnesses are not put off coming forward by what is going to be their experience at trial.
Legal Highs
Robert Buckland Excerpts(10 years, 4 months ago)
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Toby Perkins
That is an important point, and the problem has an impact on all those Departments, as my hon. Friend says. We must get cross-Government and cross-party work on it. I pay tribute to him for the work that he is doing in Barnsley to try to rid his constituents of this nightmare, and we will look at that and learn from it.
The owner of Reefers, the store in question in Chesterfield, apparently told the Derbyshire Times that the packets of Clockwork Orange that he sold made it clear that the product was not for human consumption. However, his store has a provocative name, graphics of spliff designs were originally painted on the side and it sells products that are used in the consumption of drugs. It mocks the law by claiming that it does not encourage drug use.
The Minister is on record as saying that we are ahead of other countries in our response, but Ireland, through the Criminal Justice (Psychoactive Substances) Act 2010, has already sought to ban legal highs. I would like councils to be given much greater powers to stand up for their local communities. I would also like us to take a lead and say that we are not willing to try to pursue the problem on a substance by substance basis, because the people involved are always one step ahead of us. They change the compound marginally, change its name and say, “You have not banned this.” I want us to get on the front foot and say that the producers of psychoactive substances know what they are doing and we know what they are doing, and that we will work collectively to get such substances off our streets.
We have rightly, over many years, taken the approach of refusing to legalise illicit and illegal drugs, despite the call from some quarters to do so. It is absolutely right that we treat legal highs, which are just as dangerous in many cases, in the same way. It is no good saying that products such as cannabis are illegal, but allowing producers of legal highs effectively to mock the law by creating new substances that have the same effects while we attempt to chase them item by item. It is time for us all to work together to develop a more constructive approach.
Mr Robert Buckland (South Swindon) (Con)
I congratulate the hon. Gentleman on securing this important debate on an issue that affects the constituencies of all Members, regardless of party. Does he agree that the approach taken by the US in the Federal Analogue Act, which banned substances that are similar to certain chemical compounds, could be a way of dealing with the whack-a-mole approach that he has correctly identified when it comes to proscribing so-called legal highs?
Toby Perkins
There is a lot of potential in that, and I think it is well worth investigating. My hon. Friend the Member for Kingston upon Hull North (Diana Johnson) has more expertise in that area.
When our communities feel under siege, we must not simply wring our hands and say, “There is nothing we can do. We know that there is a problem, but it is up to you to deal with it.” Our colleagues in local government and in the business world, and those in the police and the health service who are left to deal with the problems caused by legal highs, are looking at us and asking what action we will take. The time has come for us to act, and the steps that have been taken in America and Ireland offer us a potential way forward. There has to be a real sense of urgency. We should not seek to legislate in haste, but the situation is a national emergency. The scale of the response I have received since I secured the debate suggests that legal highs are a problem in communities up and down the land and that communities want action to be taken.
Alongside the potential for legislation, which I hope the Minister will confirm the Government are considering, I would like councils to be given greater powers to stand up for their local community. In the same way as they can deal with antisocial tenants, they should be able to curb the activities of antisocial retailers. We are facing a growing epidemic, and we must stand here impotent no more. It is long past the time for action. We must work together to cleanse our streets of this blight, and to protect our young people and communities. To do anything less would be a dereliction of our duty to our constituencies. The time for hand-wringing is over. The Government need to get back into the driving seat. Let us clean up Chesterfield and Britain, and rid our streets of legal highs once and for all.
Mark Pawsey
My hon. Friend is right—we need to raise awareness; but we should not use the term “legal high” when we do so. In this place, and in all work that is done on the matter, we need to start using the term “new psychoactive substances” rather than an expression that includes the word “legal”.
Mr Buckland
I appreciate my hon. Friend’s valiant attempt, but I worry that that is a bit of a mouthful. I prefer the term “chemical high”, which sums up where we are and does not place undue emphasis on the word “legal”.
Mark Pawsey
I am more than happy to adopt the expression used by my hon. Friend. The issue that I am raising is the use of the word “legal”; we must get away from using it when we talk about the issue.
Mr Robert Buckland (South Swindon) (Con)
It is a pleasure to serve under your chairmanship, Mr Chope. I have already paid tribute to the hon. Member for Chesterfield (Toby Perkins) for securing the debate. I echo the comments made by the hon. Member for Strangford (Jim Shannon) about the need for my hon. Friend the Minister to act on the recommendations of the Advisory Council on the Misuse of Drugs on tryptamines. I know that he has had the report for a few weeks now; I think it was issued in the middle of June.
My hon. Friend knows of my continuing concern about AMT as a result of the tragic death of 23-year-old Christopher Scott in my constituency last year. Since that tragedy, Christopher Scott’s parents have been campaigning assiduously for the drug to be banned, and I have been working closely with them to achieve that. More than that, they, I and everybody in this room and beyond want a change of approach and culture. We want phrases such as “legal highs” consigned to the dustbin. We should be talking about “chemical highs” and reminding people that often, such drugs are mixed with already illegal substances, so they are not legal. Above all, we must emphasise that “legal” certainly does not mean “safe”.
My involvement with this issue spans my many years as a barrister prosecuting and defending in drugs cases and dealing with the Misuse of Drugs Act 1971 and its limitations. More latterly, as the Member of Parliament for South Swindon, I worked closely with Swindon police on an issue relating to mexxy, or methoxetamine, a so-called legal high causing severe problems to users in my community back in 2011. I thank the Government for changing the law to create temporary drug banning orders, which have now been used hundreds of times to ban such chemical substances. Mexxy was one of those substances, but as a result of the early warning system and police intelligence provided to the Home Office, the Government took action to ban it within the short period of 28 days. The supply of that drug was made unlawful, and it is now a controlled drug under the Misuse of Drugs Act 1971.
The Government have therefore already taken action to keep step with the rapidly changing scenario of chemical highs, but as is clear from this debate, more needs to be done, which is why the review that my hon. Friend the Minister is conducting is so important. I echo and adopt all hon. Members’ concerns about the situation, and I commend to my hon. Friend the work of charities such as the Angelus Foundation, which have done much to highlight the issues involved with legal highs and campaign hard to influence policy makers. Here are a few ideas for the review that I commend to him. They are the product not just of my thinking and representations but of organisations such as the Angelus Foundation.
I have mentioned the US Federal Analogue Act, which I commend to my hon. Friend. The Act bans chemicals that are “substantially similar” to any controlled drug listed in the schedules if they are for human consumption. At a stroke, it deals with the problems of definitional limitation inherent in including anything in classes A, B or C under the Misuse of Drugs Act 1971. We clearly need a massive public awareness campaign that is national and reaches out into our schools and colleges.
We need to reverse the legal presumption on synthetic psychoactive substances. Instead of playing whack-a-mole, we now need to make illegal the supply of such substances. That could be done by making it a civil offence to sell them, with clear exemptions for alcohol, tobacco, medicines and some specified consumer products. Any establishment selling banned substances could be issued with an order, and any breach would be a criminal offence with penalties attached. That is one idea.
Another idea is to make the misrepresentation and mislabelling of substances an offence. The sale of products that are clearly for human consumption but are labelled the opposite should be treated as a criminal offence. Let us use civil orders to target head shops both online and offline—I must make the point that 80% of chemical high sales take place online. We must acknowledge that the internet is a real problem and a real challenge when it comes to this issue.
We could allow injunctions to be issued to head shops and websites that seek to sell chemical highs, and then we could treat breaches as a criminal offence. The attraction of using a civil approach, of course, would be that the balance of probability test would apply, as opposed to the higher criminal standard. To draw an analogy with consumer law and trading standards law, we could then apply a series of presumptions, meaning that defences would be limited. That is already done under legislation such as the Food Safety Act 1990 and the Consumer Protection Acts of the 1990s. I myself have cited those Acts in prosecutions, and they are entirely human rights compatible if anybody is worried about burdens and standards of proof. We could boost the penalties for regulatory offences, because we are dealing with products that kill people—plain and simple.
We also need to look at some of the existing legislation that is underused. There is section 222 of the Local Government Act 1972, which allows local government to take any proceedings
“for the promotion or protection of the interests of the inhabitants of their area”.
I know that there are pressures on trading standards authorities. They have limited resources; local government is under the cosh, as we all know. However, that approach should be part of my hon. Friend the Minister’s review. We should also have a look at part III of the Enterprise Act 2002 (Part 8 Domestic Infringements) Order 2003, which provides that a breach of one or two of the general rules of law contained in it will be a domestic infringement. Those laws are:
“An act done or omission made in breach of contract for the supply of goods or services to a consumer”
and:
“An act done or omission made in breach of a duty of care owed to a consumer under the law of tort or delict of negligence”.
In other words, there is a general power that could deal with the sale of dangerous substances such as the ones we are discussing. I urge my hon. Friend the Minister to review those existing pieces of legislation, to see whether they could be used as a basis for stronger concerted action.
The National Crime Agency should assist in tackling websites that sell legal highs. There is some important work going on with extreme pornography; the NCA could take a similar approach in relation to legal highs. Leadership from local authorities is, as I have already alluded to, also absolutely essential.
We have done enough hand-wringing on this issue; we now need action. I know that my hon. Friend the Minister is absolutely committed to seeing the sort of changes that we all want, and I look to him for leadership and the sense of purpose that I know he shares with me.
Home Affairs
Robert Buckland Excerpts(10 years, 5 months ago)
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Mr Robert Buckland (South Swindon) (Con)
It is a pleasure to follow the hon. Member for Linlithgow and East Falkirk (Michael Connarty), who has campaigned assiduously on the issue of modern-day slavery. I pay tribute to him for the work he has done and for the attention to detail he has shown, which is so important when it comes to landmark legislation such as this.
My experience of modern-day slavery stemmed from my own professional contact with people who at that time were still being treated as defendants, but whom we now know increasingly must be treated as victims. It first manifested itself when I started to see a number of cases involving young Vietnamese people who had come into this country unlawfully, having spent tens of thousands of pounds to get here through many different member states of the EU and further beyond, and who were now in effect the prisoners of those who had brought them here, press-ganged into work as gardeners looking after cannabis or other crops, or press-ganged into prostitution and other crimes. These people were treated as defendants; it is clear that they are as much the victims of the crimes of their gangmasters as wider society.
That increasing realisation on my part—as somebody playing a small role in the criminal justice system—has been added to by people from all parties and none and by people from outside this place with great knowledge and understanding of the experiences of those who are trafficked, culminating in us dealing not just with the issue of trafficking, but with the more general issue of slavery. The definition of what that means in the modern age is an important one. Unfortunately, the criminal mind moves very quickly and as soon as existing types of abuse are found and stamped out, new and ingenious ways to continue that criminality emerge. That is why, when the Bill has its Second Reading and goes into Committee, it is important that we make sure that the definition of slavery does not in any way end up being a victim of a lack of foresight. In other words, it has to be future-proofed so that the examples given within the statute are non-exhaustive and allow prosecutors and the police to take action to deal with developing forms of that criminality. That is vital. We in this place are pressed for time and we do not have the resources to continue to return to the criminal law. The best criminal laws in my opinion are those that stand the test of time and prove up to the task of fast-moving developments in criminality.
That brings me to a more general point. It is clear from my examination of Professor Jonathan Shepherd of Cardiff university’s annual study of accident and emergency admissions that, while violent crime seems to be declining in society, crime is increasingly taking place online. That online criminality is now entering the experience of thousands of our constituents—day in, day out—and they come to us with problems that sometimes seem to be beyond the police’s ability to deal with. That, to me, is the greatest challenge we face in the modern era. We are patting ourselves on the back about a society that seems to be becoming less violent, but at the same time we ignore the online risks at our peril.
I know that the Government understand the problem and that the police understand it, as the need for more training and greater expertise of police officers in dealing with online criminality becomes ever greater as the years pass. I see a role not only for this House in framing legislation to combat online criminality, but very much one for our police and crime commissioners and all those charged with the responsibility of meeting the needs of the people we represent.
I commend the Queen’s Speech in respect of measures on home affairs and justice. As a humble Back Bencher, I am particularly encouraged to note that my pleas are being listened to. I perhaps sound a little surprised when I say that, but it is encouraging to know that the ideas of Members of Parliament can find their way through the process and result in some action. To my mind, that certainly restores some of the faith I have in the ability of individuals in this place of whatever party to try to influence the process for the better.
I am particularly encouraged, too, by the fact that the Government recognise the challenge they face regarding the recovery of confiscation assets. It is disturbing that only 18% of confiscation orders worth over £1 million are, in fact, recovered. That is a huge amount of money. It is not only a huge resource that we are missing; it is a standing affront to the justice system itself. Why pass court orders at all if they will have no meaning in reality? Why do we go through the rigmarole of applying the Proceeds of Crime Act 2002 and its strong measures without clear results—not only for the taxpayer, but for society as a whole?
The justice of the situation is important, but it is also about good old-fashioned efficiency. That is why the package in the Serious Crime Bill to increase from 10 to 14 years maximum sentences for those in default on orders over £1 million, together with an increase in sentencing powers for orders worth over £0.5 million, is a wise one. The issue of automatic early release—we have heard it mentioned in other contexts—is particularly relevant when it comes to those who are serving sentences in default of payment. It has already been rightly established by the Proceeds of Crime Act 2002 that the liability to pay the order is not extinguished by the service of a term in default, but to allow an automatic early release for those in default seems to me not only an affront to common sense, but hardly any incentive whatever for the wrongdoer or criminal to pay the compensation made out in the confiscation order. In other words, we need more of a stick approach when dealing with offenders who are consistently in default of important court orders and think that they can just while away their time and hope that all will be forgotten. That is not good enough.
The 18% figure has to rise. I will carefully watch out in the years ahead to see how it improves and how we can change the law, while improving the way in which we undertake confiscation. I urge all prosecutors and those charged with this important responsibility to use their judgment carefully and not constantly seek huge theoretical figures of benefit, but to look for what is realisable and discover what can be converted into cash or an asset that can be confiscated for the purpose of further law enforcement.
I also want to see an end to the rather depressing catfights that I have sometimes observed between different arms of law enforcement in relation to their particular roles. For example, a certain type of forfeiture has required money to go into one pot rather than another. Division of that kind is unhelpful, and does not lead to a properly co-ordinated approach to the confiscation of criminal assets.
I was interested and stimulated by some of what has been said about immigration. I think it incumbent on all of us to show leadership when it comes to such issues. We hear a great deal on the doorstep, and read a great deal in the newspapers, about the myths of migration, but we do not hear or read enough of the facts and the truths. Over the centuries, this land has benefited from migration. We are a land of migrants. We are a rich mosaic of people whose blood comes from all sorts of lands, and we should rejoice in that. We should remember that it has made this country truly great.
At the same time, leadership demands that we listen carefully to those who have justified concerns. When people are scared, we should not fan the flames of fear; we should offer the hand of reassurance, the strong arm of guidance, and the leadership that I believe will take us through these difficult years and demonstrate that, as a country, we are not only tolerant, but welcoming and accepting of people who want to come here, to play their part in our nation story, to make their contribution—whether through work or by other means—and to be a responsible part of our communities. That is what we want. That is what everyone with an understanding of what it is to be British wants. We have heard today about British values, and I believe that a sense of acceptance and a rejection of separation are very much part of what it is to be British.
We cannot go far wrong if we start on that basis. Then we can talk about the issues here: then we can make proper distinctions between non-EU and EU migration, and talk in a reasoned way about what the free movement directive actually means. It is not an unqualified right for people to come here, fold their arms and do nothing, and it never was. It applies to people who fall into certain categories—who are workers, or are self-sufficient—and who have a right to remain here. That is the reality, and it is a far cry from the nightmare scenarios being painted by those who wish to whip up the flames of separation and to profit in some way from fear. The vast majority of the people whom I see coming here want to work and to make a contribution, and many, after they have done their work, will return home to their countries of origin.
Let us not forget that while 1 million people or more are coming here from other EU countries, an equivalent number of UK citizens are going to other EU countries. Where is the mischief in that? What can possibly be wrong with a free-market system that allows such movements?
Andrew Percy
I will tell my hon. Friend what is wrong with it. It means an uncontrolled influx into towns such as Goole, in my constituency, which has not been planned or prepared for properly, and which places a massive strain on public services. My constituents are very welcoming: they will even accept folk from Lancashire. We simply want to know how many people are coming, and we want the resources that will enable us to control the numbers properly. Unfortunately, the free movement directive does not allow us to control them at all.
Mr Buckland
My hon. Friend has made a fair point, but I am afraid that he is in error. The directive provides a power that allows member states to have a registration system for people who wish to stay here for longer than three months. Let us not propagate the myth that the directive is an open door. It is not, and, with domestic enforcement, it can be better managed.
My hon. Friend makes a proper point about planning and public services, but we must also remember that without some migration some of the jobs that need to be done in our economy are not going to be done, and the question we have to ask is, who will do that work?
I am a great campaigner for the rights of people with disabilities, and I passionately believe they have their role to play in our growing work force. I know that is what they want, and that is also what they deserve, but getting to that ideal stage takes time. It takes time for employers to start to understand the benefits of employing people who perhaps have more challenges than others. While I want to get there, I understand the pressure on employers who, for example, cannot collect their crop or who cannot find a suitable person to fulfil a care role. Working with employers to encourage more employment locally—more indigenous employment, as it were—is a laudable aspiration and is the right thing to do, but to try artificially to close a door is bad news for our country and our economy and is not a realistic approach to a problem that has deeply complex origins and should not be viewed through the prism of cheap headlines and political slogans. That is what happens far too often in the debate on migration, and it is time we stopped that misleading and unhelpful approach. Let us show leadership on that issue.
Turning to issues relating to the UK passport agency, may I thank it for having helped a constituent of mine reach the beaches of Normandy last week? Mr Harry Prescott is now 92 years of age. The last time he was in Normandy he was a 21-year-old Royal Marine in Operation Overlord. By an odd quirk, he was not classified as a British citizen. He was born in Canada to UK parents, and for various reasons never ended up with a British passport. He wanted to play his part in the 70th anniversary commemorations, however, but when the time came for him to apply for a passport, he encountered a number of blocks to his application—the sort of bureaucracy that I know drives Members of this House quietly round the bend and which was certainly causing him a degree of frustration. I was contacted by 47 Royal Marine Commando Association about his predicament, and together we were able to prevail on the passport service to pull its finger out and get on with the job of issuing him with a passport. He was therefore able to join his comrades and colleagues and play his part in commemorating the momentous events that took place in Normandy 70 years ago. I therefore offer my genuine thanks, via my hon. Friend the Minister, to those in the passport service who made that possible.
With the help of Action for Children, one of our leading children’s charities, and other parliamentarians, I have been campaigning for a number of years now for a reform to the criminal law of child neglect. Paul Goggins has been referred to in many other contexts, but it would be wholly wrong of me not to pay tribute to him for the work he did on this important issue. The Crime and Courts Act 2013 was in Bill form when Paul presented an amendment in his and my name which will, in effect, be the basis of a provision that will appear in the Serious Crime Bill. The argument is a simple one. The criminal law of child neglect was drafted way back in 1868—some 150 years ago. It served an important purpose in its time, but times move on. Just because a law is old does not mean it is a bad law—far from it—but with the knowledge and understanding we now have about the full effects of all types of abuse of children and young people, I think it was remiss, to say the least, that we had not before now updated the criminal law to keep pace not only with developments in science and understanding, but with the developing civil and family law that already recognises varying types of abuse, including emotional abuse, when considering issues of family protection and whether or not a child is at risk or has experienced significant harm.
Very often, emotional abuse does not come alone. It will be accompanied, sadly, by physical and sexual abuse. Daniel Pelka is one of many well-known cases in which the signs of emotional abuse were emerging before the physical abuse took its toll on that poor young lad. It pains me to think that the police, the prosecuting authorities and all those with responsibility for child protection did not have that extra tool in the box when it came to dealing with emotional abuse. I am not saying that it might have changed the course of young Daniel’s life, but it could have made a difference to his life and it certainly will make a difference to the lives of hundreds of children and young people in this country if and when we amend the law to include emotional abuse. The criminal law is an interesting thing for those who have been imbued with it for the past 20 years, as I have. I believe that a lot of people would have been shocked to realise that section 1 of the Children and Young Persons Act 1933 covered only physical harm, but it was made crystal clear in a House of Lords case back in 1981 that that section was limited to the
“physical needs of the child and does not cover other aspects such as moral and educational”.
That meant that the door was firmly shut on emotional abuse.
A lot of people have asked me in the past few months how one defines emotional abuse and whether the new measure will not be a problem when it comes to parenting. Are we in danger of criminalising the firm but fair parent who deprives their child of an Xbox if there has been a misdemeanour in the household? Not a bit of it. It is not about firm but fair parenting. It is not about people who administer reasonable chastisement on their children. It is not about the millions of decent men and women who, like many of us in this Chamber, learn every day what it is to bring up a child. It is about the systematic abuse of children by people who either should know better or in some sad cases do not know better.
Nicola Blackwood (Oxford West and Abingdon) (Con)
My hon. Friend has touched on an important point about this measure to protect children from neglect. Does he agree that it will be exceptionally important that the guidelines for the Serious Crime Bill define emotional abuse carefully so that statutory agencies are able to understand what they will be enforcing and parents understand the new legislation? Safeguarding sections on school websites will be a valuable resource to help parents to understand exactly what it is intended to protect against.
Mr Buckland
I am grateful to my hon. Friend. Her point about guidance will be key to all this. While we may be good at passing a law, it is for the prosecuting authorities and child protection agencies to enforce it, so we would be failing in our duty if we did not explain through debates in the House what we mean.
Empirical research shows that emotional abuse may be the most damaging form of child maltreatment because those who are responsible for administering it almost invariably are those responsible for enabling children to fulfil their developmental milestones. What do I mean by emotional neglect? It can include forcing a child to witness domestic violence, scapegoating a child, inflicting systematic humiliation and enforcing degrading punishments.
The effects of emotional neglect have been shown to be potentially lifelong and as profound, if not more so, than some of the physical effects on children. They can include depression, post-traumatic stress disorder, personality disorder, aggression, dissociation, mental illness and even suicide. Children who experience rejection or neglect are less able to learn and achieve good educational outcomes than their peers, so in addition to the psychiatric evidence that we have of the harm caused by emotional neglect, there is growing evidence from neuroscience that brain development is inhibited as a result, which itself leads to significant harm. We cannot ignore the developing science; we would be failing in our duty if we did.
The language of section 1 of the 1933 Act is antiquated. It uses words such as “wilful”, which has been defined by the courts as meaning “reckless”. Well, why does the Act not say that? It would be so much easier if we amended the law to make sure that people given the task of interpreting it did not misunderstand “wilful” as requiring specific intent or as being more intentional than the law requires. Why should we put people through their paces in that way by relying on archaic language?
Similarly, terms such as “unnecessary suffering” were good for the time of Dickens, but are not necessarily appropriate now. The term “significant harm” is the one that I strongly advocate. It replicates the term already used in civil law and it is the threshold test used when child protection issues are dealt with. Why not just streamline the system by bringing the language into line with that already used? The term “significant harm” can be understood but still sets a high threshold, and it goes a long way towards allaying some of the concerns of those who say that this will open the floodgates to prosecutions of the firm but fair parents about whom I was talking earlier.
The police and those involved in social work welcome the proposed reform. As I said, there was concern about the inability of the police to intervene in cases of non-physical harm, and the dislocation between criminal and civil law was leading to problems in enforcement and in interpreting the role of the police. We are making the law clear not only for members of the public but for those in the law enforcement agencies who have to do this difficult and sensitive work.
We should look at what is happening overseas. Action for Children commissioned research from 31 jurisdictions across Europe, Asia, north America, Africa and Australia, including common law jurisdictions with which we can draw direct parallels. In 25 of those 31 jurisdictions, the criminal law explicitly encompasses emotional abuse. We can see from that trawl of other countries’ legislation that emotional abuse is already recognised in other parts of the world.
How emotional abuse is defined will obviously be important when it comes to presenting evidence in court, and assistance will be gained, as it is now, from experts in the field who are trained in understanding the intellectual and psychological capacity of children. There is concern in the community of expert witnesses that, with pressure on resources, their job will become more difficult. I understand that, and it will be important to acknowledge that during our debates and to work out ways in which the criminal justice system can accommodate expert testimony. It must do so in a way that is fair to all parties while serving the interests of justice and allowing objective expert evidence to be relied on by juries when discharging their duties and applying the high test of the criminal standard of proof. The combination of significant harm and the criminal standard of proof is protection enough for those who say they are worried that the floodgates will be opened upon responsible heads.
We therefore move away from words and phrases such as “neglect”, “wilful” and “unnecessary suffering” to the term “maltreatment”, which covers the gamut of different types of harm that are caused, sadly, to our children. At a stroke it makes clear the options available to the courts. It allows sentencers the ability properly to reflect criminality by those responsible for the care of children in sentencing them appropriately. Finally, it deals with a long-standing anomaly that I am surprised we allowed to continue for so long.
This law will not apply retrospectively. We cannot, and it is right that we do not, make something criminal that was not criminal at the time it happened. I know that for those people who contacted me and other colleagues in recent months about the enduring effects of the emotional abuse that they suffered that may come as a bitter pill, but it would not be right to try to change a well known and well respected principle of law, a principle that is recognised internationally. We have to look to the future, but in doing so we should not forget the victims of the past who until now have had to suffer in silence and who have not had the justice that they deserve.
I am proud to support a Government who listened to a consultation that was conducted in recent months and who listened to the calls from my hon. Friend the Member for Ceredigion (Mr Williams), who had a private Member’s Bill in the last Session, to my hon. Friend the Member for Erewash (Jessica Lee), to me and to Members of the Opposition and former Members, such as the late Paul Goggins. Let this stand as one of his epitaphs. Let it stand as an acknowledgement of the power of politics when people come together, recognise a wrong and seek to make it good.
I have said a lot about child neglect. It is something that I saw in my own working life, and I found those cases some of the most difficult to deal with. Hon. Members who have been in practice well understand what I say. However, I do not stand here on an emotional basis; I stand here on the basis of evidence, a sense of responsibility that we as legislators must always do what is right in terms of developments in science, and a genuine and steadfast belief that when it comes to the criminal law, not only must we try to keep pace with developments, but—to use the phrase that I used earlier in another context—we must do everything we can to future-proof it. I thank my hon. Friends on the Front Bench for listening and taking appropriate action.
I have mentioned human trafficking and slavery, but I want to finish on a positive note. Unless every town, city and village in this country wakes up to the reality of human trafficking and slavery in its midst, we are not going to solve the problem. We have an increasingly aware police force, which increasingly understands the challenge and is sourcing important training and support.
Graham Evans (Weaver Vale) (Con)
Is my hon. Friend interested to know that Churches Together in west Cheshire, part of Weaver Vale, held a conference attended by churches from the whole of Cheshire West, as well as the police force and the local authority, to make sure that all the villages and all the communities throughout Cheshire are aware of human trafficking?
Madam Deputy Speaker (Dawn Primarolo)
Order. Before the hon. Member for South Swindon (Mr Buckland) resumes his speech, I gently point out that he has now been speaking for 33 minutes, it took the Home Secretary only 34 minutes to launch the debate, and other Members are waiting to speak. We are grateful for his tour de force across an area in which he has great expertise, but not necessarily over the entire Queen’s Speech.
Mr Buckland
I will bear your exhortation very much in mind, Madam Deputy Speaker. I am still a minute behind the Home Secretary so I will take that as a target and I will do my best.
I am grateful to my hon. Friend the Member for Weaver Vale (Graham Evans). I just wanted to make the point that in Swindon we are doing exactly the same. The 100-plus people who came to St Joseph’s Catholic college to see the films about child slavery and trafficking shown by ECPAT UK, one of the leading charities, showed that there is a real interest, understanding and concern. It is through the work of local organisations, together with our police and crime commissioners, who are increasingly becoming involved in encouraging the training of police, that we will start to see a rolling back of the almost systematic blindness that we have had to the reality of trafficking in our midst.
Before I sit down, I pay a warm tribute to the Wiltshire police and crime commissioner, Angus Macpherson, who is recovering in hospital in Bath after a serious heart attack last week. He has been doing an outstanding job for the last several years as our PCC, and on behalf of everyone who cares about crime and policing in my neck of the woods and generally, I wish him the speediest of recoveries.