Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Hamwee Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a pleasure to introduce my noble friend Lord Hendy’s Amendment 22. He is detained in the Court of Appeal—not by the Court of Appeal, you understand. I wish also to introduce other amendments in this group.

Amendment 22 has an object similar to those of Amendments 23 to 31. The intention of all of them in various respects is to limit the conduct for which CCAs can be granted as set out in Clause 1(5) and to exclude their use for the kinds of non-criminal objects of undercover policing that have been revealed in the Undercover Policing Inquiry, which began to hear evidence three weeks ago.

Amendment 22 would remove from the permissible objects of a CCA the prevention or detection of disorder other than disorder which also amounts to a serious crime, such as riot. It would require that the object of preventing or detecting crime is restricted to serious crime.

My noble friend Lord Hendy was particularly attracted to the definition of “serious crime” proposed in Amendment 31, refining it to an offence conviction for which would lead to the expectation that someone over the age of 21 without previous convictions would receive a sentence of imprisonment of more than three years. That amendment also requires that the serious crime involves the use of violence, results in substantial financial gain or is conducted by a large number of people acting in a common purpose. The latter requirement in conjunction with the expectation of a prison sentence of greater than three years is a welcome limitation on the use of the crime of conspiracy, which has been used against trade unions in particular for more than 200 years.

These restrictions on the objects for which criminal conduct authorisations—CCAs—can be given are vital in light of the evidence already emerging in the Undercover Policing Inquiry, in which my noble friend is participating as counsel to a number of trade unions. Several of your Lordships have already highlighted the pointless activities of undercover police officers “penetrating”—that is the term used in the special demonstration squad references—hundreds of entirely peaceful campaigns against perceived injustice, political parties and trade unions, all apparently behaving entirely lawfully in exercise of their rights to freedom of expression, assembly and association. Notoriously, some of those officers formed intimate relationships based on lies with more than 30 innocent women as cover.

Amendment 22 is designed also to remove from the Bill use of a CCA purportedly

“in the interests of the economic well-being of the United Kingdom”.

This ominous phrase is undefined here but clearly capable of being interpreted as encompassing lawful industrial action, which might inevitably have some adverse economic consequences. Without that amendment, agents could be authorised to commit crimes to prevent, minimise or disrupt legitimate trade union activity. I am sure that your Lordships would agree that that must be totally unacceptable.

Trade unions and industrial action ceased to be criminal in this country 150 years ago, with some cross-party consensus. Industrial action, since it was made lawful in contemplation or furtherance of a trade dispute in 1906, has been very closely regulated, most recently by the Trade Union Act 2016. Trade unions and their activities are also protected by international law, not least by Article 11 of the European Convention on Human Rights. The risk to trade unions posed by CCAs granted

“in the interests of the economic well-being of the United Kingdom”

should be removed.

At Second Reading, it was said that there was no risk to trade union activities in this Bill. The evidence given to the Undercover Policing Inquiry does not inspire confidence on the part of trade unions and trade unionists that they face no risk here from the issue of criminal conduct authorisations. We now know from the inquiry that the Metropolitan Police Special Branch maintained files on trade unions and had an industrial intelligence unit keeping watch on them for apparently no lawful purpose.

The report by Chief Constable Mick Creedon on police collusion in blacklisting in relation to Operation Herne and Operation Reuben describes the industrial intelligence unit:

“Formed in 1970 to monitor growing Industrial unrest, officers from the Industrial Unit used various methods to report on the whole range of working life, from teaching to the docks. This included collating reports from other units (from uniform officers to the SDS), attending conferences and protests personally, and also developing well-placed confidential contacts from within the different sectors.”


The inquiry has heard that undercover officers of the special demonstration squad penetrated both unions and rank-and-file campaigns by trade union members. The undercover officer Peter Francis has apologised to the unions he spied on. One undercover officer testified that the first chief superintendent of the special demonstration squad was of the view that the trade union movement was infested with communists who took their orders from the Soviet Union, and he subsequently joined the blacklisting organisation, the Economic League. No doubt, this view was dated and dismissed when expressed, but the fact is that spying on trade unionists did not cease when he left. We know from the Creedon report that the modern equivalent of the Special Branch industrial intelligence unit is the National Domestic Extremism and Disorder Intelligence Unit’s Industrial Liaison Unit. It is clear that this kind of process continues.

If the Government do not intend legitimate trade union activity to be within the scope of activity allegedly threatening the economic well-being of the United Kingdom, they ought to amend the Bill in the way suggested and accept Amendment 28 in the names of my noble friends Lord Rosser, Lord Kennedy of Southwark and Lady Clark of Kilwinning and the noble Baroness, Lady Jones of Moulsecoomb, which is to be debated in a later group. I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, it is clear that there is a lot of unease—I choose a mild term—around the House about the threshold for granting criminal conduct authorisations, although there seems to be general acceptance of the ground of national security. My noble friend Lord Paddick will speak about the threshold for disorder, and I will say a word about crime. Economic well-being and other matters that have just been referred to are in separate groups, so I will not anticipate those debates.

To prevent or detect crime without qualification seems to us to be, bluntly, wrong. I appreciate the requirement for proportionality, but the more certainty about what level of crime justifies going to the next stage of assessing whether a grant can be made, the better, and on the face of the legislation. I am sure the Minister will say is not intended that a trivial crime should prompt such an authorisation, but the legislation must make clear the threshold for granting so serious an authorisation.

Amendment 22, in the name of the noble Lords, Lord Hendy and Lord Hain, has chosen

“crime triable only on indictment,”

which is certainly one way of going about this. It strikes me that there might be too wide a mesh in that net. We have proposed a definition of serious crime taken from the Regulation of Investigatory Powers Act, as authorising intrusive surveillance. Amendment 31 sets out the definition. I note that the noble Lord, Lord Hendy, has said to the noble Baroness that he is attracted to this, and I welcome that support.

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Moved by

[Baroness Hamwee]

27: Clause 1, page 2, line 30, at end insert “so far as those interests are also relevant to the interests of national security”
Member’s explanatory statement
This would only allow a criminal conduct authorisation to be granted on economic grounds if it is also relevant to the interests of national security.

[Baroness Hamwee (LD) [V]]

My Lords, we have covered a good deal of the ground of Amendment 27 in the previous debate. I will try not to repeat too much of that. The basis for a criminal conduct authorisation under new Section 29B(5)(c) is the economic well-being of the United Kingdom. Amendment 27 seeks to qualify that with the words,

“so far as those interests are also relevant to the interests of national security”.

I said that I was not going to repeat too much of the previous debate, but I have made a note that I want to echo the wise words of the noble Lord, Lord Judd. Of course, today is not the first time that Parliament has been presented with grounds for doing something that it considers unappetising or justifiable only in quite extreme circumstances or where it is concerned that the grounds are too wide. I am not referring only to today, but the range of public authorities that fall into this Bill is wider than we have seen before by quite some margin.

Under the Investigatory Powers Act 2016, which allows for bulk acquisition warrants to be issued for the acquisition of data, if the Secretary of State considers it necessary in the interests of national security, the warrant is authorised. It is also authorised for the purpose of preventing or detecting serious crime or in the interests of the economic well-being of the UK, and then the words in Amendment 27 follow. Those qualifying words were not in the Bill as it was introduced. They were introduced and added after amendments and debate. I cannot now recall why we did not end up simply relying on the original national security grounds to cover economic well-being as well. These were words that the Government accepted; they were also words to be found in the Counter-Terrorism and Border Security Act 2019, to which the noble Lord, Lord Kennedy referred, in the definition of a hostile act that entitles questioning and detention at the border.

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[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, I have received no requests to speak after the Minister, so I call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

My Lords, I am grateful to those noble Lords who have contributed to this debate. My noble friend Lord Beith posed a number of new scenarios and he is right to prompt us to be thoughtful about these issues.

I have to say that I find it difficult to envisage what economic interests there might be which would justify a criminal conduct authorisation that do not fall within national security interests or the prevention or detection of what we think should be limited to serious crime. I do not want to repeat the arguments that I and others made in the previous debate or indeed in this one, but I will say in response to the Minister that she has introduced an element that perhaps we have not dealt with before: the need to anticipate what might happen. I may have got her words wrong, but that is the meaning I took from them. I would point to the word “preventing” crime as set out in subsection (5)(b).

I am sorry that we have not been able to progress this any further, but clearly at this moment I should beg leave to withdraw the amendment.

Amendment 27 withdrawn.

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[Lord Morris of Aberavon (Lab) [V]]

My Lords, I wish to speak briefly to Amendment 28, which I support. I was surprised at the breadth of the debate on Amendment 22 and others, as some of the comments on trade unions might have been more appropriate in this debate. Nevertheless, the noble Lord, Lord Paddick, made some worrying points in that debate in comparing RIPA and seeking justification for the words in this Bill. I suspect that he will want to return to them, given the inadequacy of the reply of the Minister, who gallantly recognised the points he made.

The state is sometimes minded to intervene in fields where it should not. The words in the clause,

“in the interests of the economic well-being of the United Kingdom”,

may need clarification and, indeed, very close scrutiny. In my view—I think I am quoting Shakespeare—they need to be “cabined, cribbed, confined”. The noble Lord, Lord Thomas of Gresford, also made some pertinent points in rightly parading some historical matters. Can the Minister refer to the precedents for words of this kind? I suspect they may have been used before. If so, it should be looked at very carefully as to whether they should be repeated, because as they stand, they are a licence to do anything. The line is a very thin one, from my past experience, between legitimate activity and activity in which the state is sometimes minded to intervene. In the Bill, there is no qualification of these words, but one is mightily needed.

I have no present interests to declare, but I was for many years a member of APEX, subsequently taken over by GMB, and I was in turn a Member of Parliament sponsored by those unions. As a retired member, I no longer have that interest to declare but, as a practising barrister, I had the privilege of giving legal advice to the south Wales miners during the miners’ strike. My junior counsel was Mr Vernon Pugh, later a very eminent Queen’s Counsel. The circumstances of that particular legal advice escape me—indeed it would not be appropriate to comment any further—but it was during that period that I believe the Thatcher Government crossed the line and intervened in lawful industrial activity. The freedom of the trade unions to assemble, protest, negotiate and represent was a battle that had been won over many years. My noble friends Lord Kennedy—in a very forceful speech—and Lord Judd made reference to these points. Nobody in their right senses would want to return to that and not follow the best practice of ensuring that trade unions are able to do their work.

The amendment seeks, with belt and braces, to protect trade unions from authorisation for a criminal activity. The words are a matter of great concern. It would be a sad day if we in any way return to the state interfering with trade unions and their activities and particularly condoning and authorising criminal offences involving the proper and lawful activities of trade unions. Amendment 28 is a clear warning: keep off the pitch. No normal Government would dream of crossing the line.

Regrettably, we have lived through a period when tempers were frayed, unfortunate incidents occurred and the Government did intervene. What we do not know is how infiltration occurred during that period. It is a fundamental point that we should know more. We are not talking of surveillance; that is the vital difference. Surveillance may be proper in some circumstances, but authorising criminal activity involving trade unions is not. To avoid repetition of what has happened in the past, and with those few words, I support the amendment.

[Baroness Hamwee (LD) [V]]

My Lords, if the noble and learned Lord was referring at the beginning of his contribution to the term “economic well-being”, I hope that the references made during the earlier debate will be helpful. I certainly agree with him about the breadth of what is in the Bill and the distinction between surveillance and authorising criminal conduct.

The amendments in this group raise the issue of whether we are concerned about the activity or the actor. My noble friend Lord Paddick questioned Amendment 29 and the term “legitimate political activity”. I had in fact made a note that that quite attracted me, but he and I have not had the opportunity to thrash this out between us. We may get it on the floor of the House if the noble Baroness brings the matter back at a future point.

On Amendment 78, on the equality impact assessment, frankly, the Government would be ill advised to resist this. I am mindful of the need to avoid the identification of agents. The noble Baroness, Lady Manningham-Buller, was very clear about that the other day but, as the amendment is worded, I do not think that there should be such risks—although of course I am not experienced in this area.

In Amendment 56A, my noble friend has stood back to look at the purpose. Again, it is the broader point of addressing the principle rather than producing a list or a detailed prescription. I hope that the Minister will accept that we are keen to address the problems that the Bill throws up without undermining it. I am sorry that, today at any rate, I will not get the chance to speak after she has responded to my noble friend, but I believe that he has come up with a formula that is well worth pursuing.

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken on this group of amendments. I start with the point made by the noble Lord, Lord Paddick, about people in this House with experience. This is important, because your Lordships’ experience in such a wide variety of areas makes legislation in Parliament better.

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Moved by

[Baroness Hamwee]

34: Clause 1, page 2, line 36, leave out “(for example, the requirements of the Human Rights Act 1998)”
Member’s explanatory statement
This amendment would provide that conduct in reach of the Human Rights Act could not be authorised.

[Baroness Hamwee (LD) [V]]

My Lords, we have both Amendments 34 and 36 in this group, the latter being the substantive amendment. I apologise that the explanatory statements as published refer to conduct “in reach” of the Human Rights Act; that should have been “in breach”—or, of course, not in breach. I can spell; it is just that my typing is not very good, though I suppose that “in reach” is what we were aiming at.

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With that, I ask the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD) [V]]

My Lords, I will pick up a number of points, if I may. First, the noble Lord, Lord Hodgson, raised important issues, although the whole of this debate is important. I think he will know that I agree with him because I have previously referred to rendition in this context.

Like the noble Lord, Lord Anderson, I cannot believe that crimes in the UK are worse or more intractable than those in other countries that are mentioned—although what do I know? He referred to new subsection (10)(b). I am interested that he reads the word “requirements” as being a prohibition. I find it a difficult word and am quite curious as to why it is not spelled out rather more clearly.

Like the noble Lord, Lord Rosser, I find new subsection (7) curiously expressed, or, if I might put it this way, certainly less than whole-hearted. The Minister says that nothing in it undermines the Human Rights Act, but why is it given as an example of matters

“so far as they are relevant”?

I agree with the noble and learned Lord, Lord Thomas of Cwmgiedd, that it is important to make our legislation accessible and understood by people who do not know the detail of a technicality, but a breach of human rights may be such a nuanced matter that, on this occasion, I have some hesitation about that. The Government refer to training, which I mentioned at the beginning. Although I also put it in a slightly quizzical way, we have been given that assurance.

Perhaps following on from that point, does listing outlawed conduct risk permitting what is not listed? I certainly do not share the view that it would be a checklist, because you could equally well test against the Human Rights Act, or indeed test an individual, without being technical about it, as to how far a suspected CHIS is prepared to go. I think that that really covers most of that issue but others may think that there is more sophistication to the point.

If, as I suspect we might, we gather round the JCHR amendment proposing new subsection (8A), I hope that we might add to it that it does not limit the other provisions of the section. I am looking ahead, of course, to the next stage.

These are not easy issues. On previous Bills, I found myself saying that it is hard to deal with arguments that amount to, “You don’t know what we know about how all this operates”, but I am pretty certain that we will return to this issue at the next stage. As of now, I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

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[Baroness Chakrabarti (Lab) [V]]

My Lords, it is an absolute privilege to follow the noble Lord, Lord Young of Cookham, to associate myself with every word he spoke just now and to have signed his amendment. Amendment 43 and, to some extent, the others in the group, go to the heart of who we are as a society and, indeed, to the heart of what dangerous, important law enforcement is all about if not, ultimately, to protect children most of all.

It is unconscionable that children should be used as agents per se. Unfortunately, as I have complained before, we cannot do anything about children being used as agents in the Bill, but we can amend it to prevent those children being put in even greater harm’s way by authorising them to commit criminal conduct, which is normally the opposite of the message we send to our children. Indeed, we condemn those who, elsewhere in the world, groom their children for crime or to act as soldiers even in grave situations of war, and such children have often sought refuge in the United Kingdom.

One of my fears in relation to children being used in this way is that many of them are particularly vulnerable children to begin with. Some of them may actually be wards of the state; they may actually be looked-after children who do not have a normal, viable, stable family to protect them. If these children are looked after by the state and then used by the state in this way, that is a double abuse, it seems to me, by all of us as a community.

There must be other ways to ameliorate this problem. There are young people, as I once was, who look far younger than their age well into their early 20s. There must be other, more proportionate ways to do some of the work that needs to be done, exceptionally. It is a very serious human rights violation for any state to put children as young as 15, as the noble Lord, Lord Young has said, into this kind of situation, with long-term consequences for their emotional health and, indeed, for their lives.

[Baroness Hamwee (LD) [V]]

The noble Lord, Lord Young, is very persuasive, and he is right. My noble friends Lord Paddick and Lady Doocey and I have Amendment 52 in this group, and I have also put my name to Amendment 60, because if the outcome of the debates is to restrict but not prohibit the authorisation of under-18s and vulnerable people to commit criminal conduct, then Amendment 60 is the amendment that deals with both groups—I do not really like the term “groups”; they are individuals, but noble Lords will understand what I mean.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Hamwee Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

Moved by

[Baroness Hamwee]

16: Clause 1, page 2, line 16, leave out “the person believes—
(a) that”Member’s explanatory statement
This amendment ensures that there is an objective test rather than a subjective test for granting a criminal conduct authorisation.

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[Baroness Hamwee (LD) [V]]

My Lords, my noble friend Lord Paddick and I have Amendments 16, 18, 20, 32 and 33 in this group, which is concerned with the test—the standard or threshold, if noble Lords prefer—for granting a criminal conduct authorisation.

The JCHR made the very good point in the conclusion of its report that

“it would be more effective for a test of objective reasonableness to be applied in the course of an independent judicial approval process”.

It also made the important point:

“If a test of ‘reasonable belief’ were applied to the making of an authorisation, a CCA made without objective justification would be invalid. However, the CHIS acting under the CCA would not know this. This could result in the CHIS being exposed to criminal prosecution or a civil claim, despite the fault being with the individual making the authorisation.”


The Minister has just reminded us of the duty of care to a CHIS.

New Section 29B(4) requires belief as to three matters listed on the part of the person granting the CCA. I am always keen to follow the noble Lord, Lord Anderson, and we go a long way together on this group and then part company a little towards the end. Is a simple belief that something is necessary and proportionate an adequate test, or is a simple belief—to read from new Section 29B(4)(c)—that “arrangements exist that satisfy” the Secretary of State’s requirements? We will come later to what those arrangements might be, but it is the same issue. I acknowledge that subsection (4)(c) is probably more procedural than substantive.

A person might honestly believe in all these things but be mistaken. But he could still assert that belief, hence the need for objectivity—at least, an objectively reasonable belief. As the JCHR said, that is a

“standard requirement for the exercise of police powers—from stop and search, to arrest, to applying for a search warrant. This prevents these powers being lawfully exercised without reasonable justification. It is a vital protection against overzealous or misguided officers.”

That is what is in the guidance. Although I of course welcome that, it is worrying that the term is not included in the Bill. I am not clear whether that is a deliberate omission. Certainly, the legislation and the guidance should be consistent.

The amendment in the name of the noble Lord, Lord Anderson, which was moved by my right honourable friend Alistair Carmichael in the Commons, imports objectivity. We are going further by asking whether the Government should justify why something is not actually necessary or proportionate, or satisfying the Secretary of State’s requirements.

New Section 29B(6) is a gloss on Section 29B(4) and tells us what is to be taken into account in authorising the conduct—

“whether what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime.”

We would take out “reasonably”.

The Government might say that its inclusion is a safeguard for what the noble Lord, Lord Anderson, and I are seeking in our respective amendments. What concerns us, however, is that anything that spells out how you reach a belief or conclusion is in danger of weakening what is central to authorising a CCA: the necessity and proportionality of it. Both of those contain an element of judgment and we do not want to weaken subsections (4)(a) and (b), hence our Amendment 32.

Amendment 33 is in the same family. It would remove “reasonably” from subsection (6) of proposed new Clause 29B, which I just quoted. That subsection lends itself more to being tested, so I am less concerned about it than other amendments. Perhaps, however, I should make it clear that we are not in the business of trading one “reasonably” for another. Our other amendments are consequential.

On the amendment from the noble Lord, Lord Rosser —I think that it will be spoken to by the noble Lord, Lord Kennedy—we think it preferable not to go down the route of listing matters to be taken into account, as that amendment does. I am sure that the noble Lord, Lord Anderson, could tell us about the case law. Simply, I would not be surprised if the Minister says this too, since she and I have had this discussion on many occasions: a list is bound not to be complete, and the more you list, the less scope there is to take into account something that is not spelled out. With that, I beg to move Amendment 16.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, it is a pleasure to follow the noble Baroness for at least part of her journey, as she says. I will speak to Amendment 17 and its Scottish equivalent, Amendment 72. They would require that the authorising officer’s

“belief in the necessity and proportionality of a criminal conduct authorisation, and in the existence of satisfactory arrangements, be reasonably held.”

In paragraph 67 of its report, the Joint Committee on Human Rights rightly said:

“It cannot be acceptable for CCAs to be made on the basis of an unreasonable belief in their necessity and proportionality.”


Despite the wording of the Bill, which makes no reference to reasonableness, the Government appear to agree with the Joint Committee. We know this from Second Reading in the House of Commons, when the Solicitor-General stated, in answer to Jeremy Wright MP, that

“the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate.”—[Official Report, Commons, 5/10/20; col. 707].

Is that a sufficient answer? I am afraid not—for two reasons. First, the draft code of practice, as I read it, does not plainly provide that belief be reasonable. Section 6.1 of the draft code, issued alongside the Bill, provides that a criminal conduct authorisation

“may be granted by the authorising officer where they believe that the authorisation is necessary”.

Section 6.3 states:

“The authorising officer must also believe that the authorised criminal conduct is proportionate”.


The requirement that belief be reasonable is not clear, even in the code of practice. Those sections of the code appear quite consistent with the requirement of a merely subjective belief. Secondly, and more fundamentally, the notion of reasonableness is—as I think the Government acknowledge—completely absent from the Bill itself, which the courts will of course treat as the authoritative source.

My point is very simple: why is the position rightly endorsed by the Solicitor-General—that belief should be reasonable—not reflected in the Bill?

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[Lord Stewart of Dirleton (Con)]

I am obliged to the noble Lord for that final submission. We do, I acknowledge, need to address these matters over the next period of time, as the Bill moves forward. I acknowledge to the noble Lord, and others who have contributed, that mistakes were made in the past around blacklisting and the penetration of bodies that need never have been penetrated, or of bodies that were engaging in legitimate activities. Acceptance of that will inform the manner in which we proceed further.

[Baroness Hamwee (LD) [V]]

My noble friend Lord Paddick has been using his experience of the past—experience is, by definition, the past—to inform and improve the future. That was rather what my noble friend Lord Thomas of Gresford was talking about, with his reference to the range of organisations from which authorisations for criminal conduct may come. He mentioned people entitled to give authorisations who will not have the same experience as those in the police and intelligence services.

I hope noble Lords will forgive me if I do not refer to every contribution that has been made, though I am grateful for all of them. However, I want to pick up the point about considering the position if things go wrong. That is a very large part of our task in this House, in scrutinising legislation, and it will necessarily mean positing hypotheticals. I will certainly want to pick up the points made by the noble Lord, Lord Mann, when we come to consider the term “economic well-being”.

I remain concerned about Section 29B(6). We have the test of necessity; you cannot really strengthen necessity but you could weaken it. If subsection (6) is to have any meaning, then I am worried that it must weaken it.

To go to the heart of all this, the argument from the noble and learned Lord is that we should be consistent with Section 29 of RIPA, which is about the authorisation of covert human intelligence sources. New Section 29B is about criminal conduct authorisations. I would regard that, as other noble Lords have said during the Bill’s passage, as much more serious than what is covered by the current provisions of RIPA in terms of covert intelligence and intrusive investigation as well. Yes, it will be a fast-moving, live environment, but I do not think that that is an excuse not to act reasonably. I really feel that we have to get the Bill right, and that means importing objectivity.

I have still not understood the points made in response to the noble Lord, Lord Anderson, about why we should not have the term on the face of the Bill. I think that the noble and learned Lord said that it would not be appropriate, but I might not have noted that down correctly. He did say that it would not be efficient. I hoped that he might develop that point, but we will have to pursue that after this afternoon’s debate. We are clearly gathering round Amendment 17 in the name of the noble Lord, Lord Anderson, and I think that Amendment 72 is its Scottish equivalent. My noble friend and I are very happy to cede the ground to those amendments; we went a bit far, but I cannot conceive of an answer to the points made by the noble Lord, Lord Anderson. We have not heard one so far, so would be delighted to support him if he pursues the matter at the next stage of the Bill, which we very much hope that he will. It will soon be 5 pm, so I beg leave to withdraw Amendment 16.

Amendment 16 withdrawn.

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[Baroness Chakrabarti (Lab) [V]]

To be short, my Lords, I agree with the noble Baroness, Lady Jones. Matters as grave as criminal conduct authorisations for state agents should be regulated in primary legislation and not be subject to delegated powers thereafter.

[Baroness Hamwee (LD)]

My Lords, I am afraid that we have a number of amendments in this group. I have quite a lot of sympathy with Amendment 19A, tabled by the noble Baroness, Lady Jones, but it seems to me that proposed new subsection (4)(c) is not anything like of the same order as proposed new subsection (4)(a) and (b). I read it as being procedural and think that it would not make it more difficult to satisfy the necessity and proportionality requirements. I hope the Minister can confirm that.

Amendment 21 deals with proposed new Clause 29B(4)(c), which provides that the Secretary of State can make an order imposing requirements for the CCA to be authorised, and the person authorising it must believe that there are arrangements which satisfy those requirements. If the Secretary of State believes—if that is an appropriate use of the word, given our last discussion—that further requirements are necessary and would be of wide interest, in the fullest sense of that word, consultation ought to play a part.

Windrush Compensation Scheme

Baroness Hamwee Excerpts

Monday 23rd November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

I totally agree with the noble Lord that a culture change is badly needed. A culture change does not come in a quick timescale but over time. On the figure of 168 people, we need to move faster in processing claims, and I know my right honourable friend the Home Secretary is looking at that. We have also enlisted more resource to try to help process those claims. On complexity, yes, it is complex; people have complex lives, and each case has to be taken on the evidence and information that is brought forward. We do not want people to go short on what they receive but to get the full amount they deserve—and all these people are very deserving of the compensation they get. Regarding the slow progress on the recommendations, I do not contradict what Wendy Williams said at all. One thing she said was that we should reflect, rather than jump to action, in implementing some of the recommendations. That is not to say that we should drag our heels, but we are going as fast as we can in what is a very sensitive area indeed.

[Baroness Hamwee (LD) [V]]

My Lords, is it appropriate that, as reported, many officials working on the compensation scheme have immigration enforcement backgrounds, where the default response for so long has been to say “No”, rather than “Yes”?

[Baroness Williams of Trafford (Con)]

I cannot substantiate the point that the noble Baroness makes; that is possibly my ignorance rather than anything else. First and foremost, however, we must assist people to get the compensation that they deserve for the wrongs that they have suffered over the past 70 years under successive Governments.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Hamwee Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, I join others in welcoming the noble and learned Lord, Lord Stewart, and I say to him that every follower of Lancashire knows the joys of the damp cricket match. I also welcome the noble Lords, Lord McLoughlin and Lord Walney, who bring valuable—if very different—experience to this House.

The Bill is short but raises big issues. Some of them are not new, and we will use the opportunity of the next stage to address whether we are in danger of consolidating provisions that should be reviewed. Some of the issues are new, and my noble friend Lord Paddick has carefully and thoughtfully unpacked the status quo. It has been quite some years since the de Silva review, itself many years after Pat Finucane’s death. Since the announcement of the judge-led inquiry, the Bill is concurrent with the hearings of evidence of that inquiry. I do not need to stress our concern for the rule of law, as the noble Baroness, Lady Chakrabarti, has put it so clearly, and seeking to outflank a forthcoming judgment is, in my view, at best unseemly.

A statutory framework is welcome, but we already have a framework—more than a framework—in prosecutorial independence and the discretion applied. The public interest test serves us well, as noble Lords have said. The Minister said that “lawful for all purposes” is deliberate, and the House will note the authority with which the noble and learned Lord, Lord Thomas of Cwmgiedd, speaks.

I assume that the test will be used in the case of the handlers of CHIS and their controllers. Or does the immunity extend to inciting crime or being an accessory? Presumably, one cannot authorise oneself.

Perhaps, this is the point at which to ask about territoriality. The Armed Forces are mentioned. Inevitably, I started to think about how one would police, and indeed define, criminal conduct overseas. I thought about rendition, but I assume that this legislation does not, and cannot, authorise criminal conduct outside the UK.

Oversight and independent scrutiny are needed, and investigation and accountability before and after—everything that adds up to transparency to the greatest possible extent. I am tempted to say, “so far as is proportionate and necessary,” but like the noble and learned Lord, Lord Garnier, we regard the greatest possible transparency as necessary. These will clearly feature at later stages, and the noble Lord, Lord Rosser, has promised us amendments on this. I dare say he will not be alone. This is all part of the nub mentioned by the noble Lord, Lord Anderson, and I look forward to the amendments he will present to the House.

We must not lose sight of reviews and renewals of authorisations—I am not sure I have heard anyone mention them—or the governance, if you like, of the process. My noble friend Lord Beith made the point about the moral dimension.

Of course, we will consider who are the relevant authorities. My noble friends and I have often made the point about police officers having immigration enforcement added to their role. Today, I say we regard it as the police’s role to enforce the law, whether it is about gambling, food standards or whatever. My noble friend Lord Thomas was clear about that and much else. We are particularly interested in how it is envisaged that a government department should act as a relevant authority. Who within the Home Office will give authorisations? What position does this put the Home Secretary in?

The what as well as the who will certainly feature. On the issue of not providing criminal with a checklist against which a suspected CHIS can be tested, I today ask the Minister: what is envisaged by enabling the Home Secretary, by order, to prohibit the authorisation of, and impose requirements in connection with, conduct? That order will be a public document publicly debated, so its contents will be public. In any event, surely the European Convention on Human Rights and the Human Rights Act provide a checklist. Like the noble Lord, Lord Janvrin, I am troubled by some of the Government’s comments.

It would be helpful if the Minister could explain the Government’s view of the application of the Human Rights Act, as the noble Baroness, Lady Kennedy, has asked. Are CHIS agents of the state, or are they independent of the state? Like the noble Baroness, Lady D’Souza, I find it difficult to reconcile some of the Government’s statements.

As the JCHR points out, authorising criminal conduct has clear potential for engaging human rights, so the Bill must contain effective protections against their violations, including stringent safeguards against unnecessary or abusive authorisations. I look forward to hearing further ideas from the noble and learned Lord, Lord Hope, who rightly raised the issue of torture.

Many noble Lords, including from our Benches my noble friend Lady Doocey, have spoken forcefully of the use or, as the right reverend Prelate said, the abuse, of children—because juveniles are children—and vulnerable adults as CHIS. What does it say about us, as a society, that we contemplate exploiting children—often, as the noble Baroness, Lady Bull, says, disadvantaged children—in this way?

In a debate a few years ago, I recounted an example of the abuse of a child, and I have periodically been asked for more details. Let me say now that I have no more details, so could journalists please stop asking me. Whether that is out of abhorrence or concern or through some enjoyment of sensationalism, I do not know, but I have been asking myself whether recruiting and directing a child as a covert intelligence source is not itself a type of grooming, with all its predictable outcomes for mental health, development and life choices. I think that the same thought has occurred to the noble Baroness, Lady Young. She and the noble Lord, Lord Russell, made very powerful points, and I look forward to working with all noble Lords who share these concerns.

How can acting as a spy, let alone undertaking criminal conduct, ever be in a child’s best interests? I appreciate that the code deals with appropriate adults in some cases, but can a child give informed consent to these activities? Every child is by definition vulnerable, and a child who is in a position to be used and targeted in this way is by definition very vulnerable. We have progressed in our thinking and views on other vulnerabilities, and we will be discussing the issue of mental capacity and the position of, among others, the victims of trafficking, modern slavery and exploitation whom we should primarily protect.

We recognise—as I think the noble Lord, Lord Haskel, pointed out—that in many contexts, perpetrators are victims too. There are also victims who are not perpetrators. The Joint Committee on Human Rights, among the many issues it has raised, has reported its concerns about conduct being “lawful for all purposes” and victims being deprived of civil remedies. In its report, it referred to the Minister for Security, who said that any authorisation found to have been made in breach of Section 6 of the Human Rights Act, which requires public authorities to act compatibly with convention rights,

“would be invalid and the conduct of the CHIS would not be rendered lawful.”

However, the report goes on to say,

“it is not plain on the face of the Bill that this would be the consequence of an authorisation that was inconsistent with human rights. Nor is it clear what would be the consequence of a CHIS carrying out a validly authorised offence in an excessive or disproportionate manner.”

We are grateful to the Minister for circulating the revised code of practice, but—and she will know that this is not a reflection on her personally—how far should we rely on a code? It is not legislation. We have had 54 speakers today and a thoughtful debate on the Bill’s seven pages and two schedules and considerable back- ground. I do not expect subsequent stages to be brief.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Baroness Hamwee Excerpts

Consideration of Commons amendments
Monday 9th November 2020 Lords Chamber

[Lord Alton of Liverpool (CB) [V]]

My Lords, it is a great pleasure to follow the right reverend Prelate the Bishop of Southwark. When we travel on the London Tube, there is a warning to “mind the gap”. In their contributions, the right reverend Prelate and the noble Lord, Lord Dubs, have said that there is potentially a gap in provision between Dublin III and whatever is brought forward for January of next year. It is right that we should mind that gap.

On 21 March 2016, by a margin of 306 votes to 204, your Lordships carried an amendment on unaccompanied child refugees. Four years later, the noble lord, Lord Dubs, valiantly keeps us focused on the plight of refugee children. Four years ago, the noble Lord asked me to be a signatory to what in shorthand became known as the Dubs amendment. I readily agreed. I said at that time that the repeated use of the argument about the so-called pull factors—some of which were mentioned earlier by the noble Baroness, Lady Neville-Rolfe—cannot, in the case of children, outweigh our duty to do all in our power to safeguard and save any child at risk. Not to do so would leave a lasting stain on our reputation.

In the four years since we first considered the Dubs amendment, we have seen shocking reports of children dying, abandoned, disappearing, trafficked or exploited during perilous journeys. The recent death of two little children in the English Channel, after their boat capsized, simply underlines yet again why it is crucial that we find these safe and legal routes, and long-term solutions that hit hard the criminal gangs that profiteer and exploit desperation, while tackling the root causes that create such phenomenal displacement.

In 2015, we were all deeply affected by the harrowing picture of a little Syrian toddler, washed up like so much flotsam and jetsam on a beach near Bodrum. The tragic deaths of a five year-old and an eight year-old in the English Channel starkly remind us that little has changed since then.

The Dubs amendment will not save the life of every child. Family reunions provided for in the Dublin III regulation are, at best, a safety net. But its absence after 31 December—the gap mentioned—could make a bad and tragic situation even worse.

Against this background, the House of Commons has once again returned this amendment to your Lordships House. I know that the Minister, the noble Baroness, Lady Williams of Trafford, believes that the plight of children should be a top-tier priority for the Government—in her remarks a few moments ago, she used the phrase “a fundamental tenet”. She is justifiably proud of the help we have given. Thanks to parliamentary pressure, the Government have been able to tell a better story today than might otherwise have been the case. Surely that shows the importance of parliamentary debates such as this. However, she must also accept that the talk and rhetoric from others of nets and water canon to disable or push back boats and of the use of oil rigs or remote islands to lock up migrants, and the absence of any international initiative—ideally led by the United Kingdom—to tackle the root causes, are deeply dispiriting.

According to the United Nations High Commissioner for Refugees, of the 79.5 million people around the world who have been forced to flee their homes, nearly 26 million are refugees. The UNHCR estimates that 40% are children and 68% come from just five countries. It cannot be beyond our wit—our collective genius—to drive this issue to the top of Governments’ agendas. Even if they do not accept that there are altruistic and humanitarian reasons to act, there are plenty of self-interested reasons why they should do so.

As the noble Baroness, Lady Williams, reminded us, today we commemorate the anniversary of Kristallnacht—the night of broken glass—which included the destruction of 267 synagogues. Eleanor Rathbone MP established the Parliamentary Committee on Refugees. Two years later, on 10 July 1940, in a six-hour debate, she intervened on no fewer than 20 occasions to insist that Britain had a duty of care to the refugees being hunted down by the Nazis. She said that a nation had an obligation to give succour to those fleeing persecution—in her words,

“not only in the interests of humanity and of the refugees, but in the interests of security itself”.—[Official Report, Commons, 10/7/1940; col. 1212.]

She said that discussions about asylum seekers and refugees

“always begin with an acknowledgement of the terrible nature of the problem and expressions of sympathy with the victims. Then comes a tribute to the work of the voluntary organisations. Then some account of the small leisurely steps taken by the Government. Next, a recital of the obstacles—fear of anti-semitism, or the jealousy of the unemployed, or of encouraging other nations to offload their Jews on to us”.

In 2020, nothing much has changed, and it is hard not to see the parallels.

The noble Lord, Lord Dubs, was one of the few rescued by Kindertransport, and his commendable determination for us to remain focused on the needs of refugee children was born in those shocking times.

The clock is ticking towards 31 December. The Government’s amendment legislates for a review on safe and legal routes in the new year, including specifically on family reunion. I welcome that, but, on 1 January, children will potentially have impaired access to family reunion, and many may be left stranded alone in Europe. The amendment from the noble Lord, Lord Dubs, adds a requirement that current family reunion laws are kept until the review and report are complete, so that no child loses out from accessing this vital safe and legal route.

Like the noble Lord, I am pleased by the spirt and tone of everything which the noble Baroness, Lady Williams, has said this afternoon. However, I would prefer to see this written in the Bill, and I will follow the noble Lord, Lord Dubs—metaphorically anyway—into the Lobby and vote to send this back to the Commons one final time if he does not believe that the Government’s assurances go far enough.

[Baroness Hamwee (LD) [V]]

My Lords, as other noble Lords have said, safe routes are needed now. We know that people will not and cannot wait. And who can blame them?

I want to question the Minister about the review, particularly to seek an assurance about one aspect. Proposed new subsection (1) in the amendment refers to the review of ways in which protection claimants can enter the UK lawfully. This suggests that the review is to be limited to considering existing ways, when what is needed are proposals to enable safe mechanisms for family reunion without the current hurdles and restrictions. Siblings must be able to reunite and close family members—not only parents—able to sponsor entry without having to find fees or demonstrate that they have the means to look after the child.

I am concerned that there is no stated objective for the review; that seems to be missing. Also missing, as the right reverend Prelate has said, is a timetable for the completion of the review. The three months mentioned is the period within which the Government are to give further details. Can the Minister help us with the wider timetable and consultation, which surely needs to be wider than just unaccompanied children?

Reference has been made to the use of guidance. Can guidance achieve what is proposed? It cannot override the rules. I endorse and support the points made by the noble Lord, Lord Dubs, about the importance of seeing drafts both of rules and guidance. Parliamentarians can then have input and amendments can be gently suggested, if not formally proposed. We cannot do this with unamendable rules.

It is beyond me that what is necessary now is to show

“serious and compelling family or other considerations which make exclusion of the child undesirable”,

in the words of the rules. Putting it that way round, rather than the converse, has always seemed perverse to me. So, too, is the policy that an application under Article 8 of the European convention, on the right to family life, will not succeed unless there are “exceptional circumstances” with refusal resulting in “unjustifiably harsh consequences”.

On the timetable again, one of the government amendments refers to two months from the date of commencement, which is beyond the end of the year. Can the Minister assure the House that there will be no lacuna as a result and that work on plugging the gap, as it were, will start immediately and apply notwithstanding the commencement date? If there needs to be a change, can it be made in the Commons? I appreciate that that would require the Bill to go back to the Commons.

In practice, it is very difficult to show that a child is in an unsafe environment. Other current problems that need to be considered are getting a child to a visa application centre to make an application under the rules, and the fees which, under one of the paragraphs of the rules, are well over £3,000. I make these perhaps slightly random points because, alone, they show the importance of consultation on the whole situation.

The Minister in the Commons referred to

“dangerous, illegal and unnecessary crossings”.—[Official Report, Commons, 2/9/20; col. 182.]

I stress “unnecessary”. Would the crossings be made if they were? And was it appropriate to refer to lives lost and profit made by criminals as if they were of equal weight?

The noble Baroness referred to bilaterals. If she can give us an update, it would be welcome, but I appreciate that it may be difficult to refer to negotiations with the EU at the moment. Bilaterals would have to come after the end of the year, but we should not depend on them being in place for some time yet.

I realise that I am not taking my cue from the noble Lord, Lord Dubs, as I should, who always succeeds in using the most moderate language. He started by welcoming Amendment 4C, so I will end by confirming that these Benches are pleased that he has again pointed the way forward. We support him. If he decides to divide, we will certainly go with him. In any event, like him, we will continue to seek a much more satisfactory arrangement for asylum seekers, who want the most natural thing in the world: to be with their family.

[Lord Rosser (Lab) [V]]

We welcome the government amendment providing for a review of legal routes to the UK, including for family reunion of unaccompanied asylum-seeking children and for a report on the outcome of the review to be published and laid before Parliament—which I hope will be within a matter of months, rather than years.

The concern that the amendment of my noble friend Lord Dubs seeks to address is what will apply in the interim, between the end of the transition period—and thus the end of the Dublin regulations—and the introduction of any revised or amended arrangements on legal routes to the UK, following the outcome of the review. In other words, there needs to be provision for those, including unaccompanied asylum-seeking children, who would have come in successfully under the Dublin regulations—had they still been in existence after the end of this year—still to have an equally accessible and achievable safe and legal route in that interim period, which would continue to enable them to come to the UK.

Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020

Baroness Hamwee Excerpts

Thursday 22nd October 2020 Lords Chamber

Moved by

[Baroness Hamwee]

As an amendment to the above motion, to leave out from “that” to the end and to insert “this House declines to approve the draft Regulations because the so-called ‘grace period’ of six months from 1 January 2021 for applications to the EU Settlement Scheme does not replicate the provisions which apply during the implementation period.”

[Baroness Hamwee (LD) [V]]

My Lords, I am grateful to the Minister for going through those detailed and technical provisions. I have tabled this amendment opposing the grace period statutory instrument not because I oppose the grace period as such—and, in any event, at least six months is required by the withdrawal agreement—but in the hope of persuading the Government to sit down quietly to discuss the detail with those who are concerned about some of its not immediately obvious effects: “A slow conversation”, as she might put it.

The limitations of parliamentary procedures lead me to this. We cannot amend the instrument and, although I share the regret of the noble Lord, Lord Rosser, merely expressing concern does not require anyone to do anything. Effective scrutiny should lead somewhere: if not to a change in policy, at least to a consensus as to exactly what an instrument means and how best to express it. Everyone needs to know where they are; immigration law is quite complex enough.

The widely held view is that the grace period is a straightforward continuation of the transition period, with no difference in any EEA citizen’s position. In our view, that is just what it should be, in every detail, because that is right in itself and because of that wide- spread understanding.

The Minister, Mr Foster, has spoken of the SI saving “relevant … rights” and

“broadly maintaining the status quo”.—[Official Report, Commons, 14/10/20; col. 4.]

The qualifying terms are significant. The savings under the SI apply to individuals and their families who, by the end of this year, do not have leave to enter or remain under the scheme. That is, they apply if your application has not been determined or if you have not yet applied but are entitled to status, provided you are “lawfully resident”—a very significant qualifying term in the instrument.

If you were not exercising treaty rights on 31 December this year, it seems you will not, in the interim period, have all the rights that go with that status. Crucially, you will not be able to access benefits or healthcare. Mr Foster said that you can “work and live” as now, provided that you are subsequently granted status. I will leave aside the retrospective effect on you and your employer if it is not granted. He has written that an EEA citizen or family member who is resident but does not have a right of permanent residence and is not exercising specific free movement rights will not have those rights protected during the grace period and will not be able to start exercising them.

If you have not been exercising treaty rights but are here, for instance, as a family member, can you apply for a job or a tenancy in this period? What about benefits or healthcare, as I have mentioned? I can do no more in the time available than flag up the issue of private health insurance and treaty rights. The term “lawfully resident” begs a question that would be answered by a change to simply “resident” or “present”.

I doubt I need to emphasise the difficulty of finding a job in the current circumstances so as to exercise treaty rights if someone has not previously done so, nor the problem of a last-minute surge in applications, or if a lockdown causes delays in decisions in the Home Office. I appreciate that the department is encouraging citizens to apply to the EUSS by the end of the year and we will shortly see the arrangements and the guidance for people who have a reasonable excuse for not having applied. However, the encouragement to apply by the end of the year will be seen as something administrative and I doubt whether it will be understood that a citizen who does not have status under the scheme will be in a different position after the year end. Ironically, however, today’s announcement on criminality rules may highlight this because it states:

“These changes do not apply to EU citizens protected by the Withdrawal Agreement, such as those with status under the EU Settlement Scheme.”


Briefly, on the restrictions instrument, perhaps I might ask about people who have criminal convictions, both those who are serving and those who have served their sentences; they have rights too, which should not be lost retrospectively. If they do not have status under the scheme by the end of this year, does the Home Office intend automatically to issue deportation notices where it could not do so at the moment? Will it ensure that EEA citizens in prison or on licence understand the importance of applying for status without delay? Briefly, Keeling schedules should be used in the SIs so that the reader can see exactly what is being proposed without following up dozens of references.

These are not easy points technically, never mind politically. I hope that noble Lords will understand my concern for clarity and shared understanding. That is why I seek at least to pause the process and ask that the Home Office should work with stakeholders, who have spent a lot of time analysing the grace period SI to this end. I beg to move and I will seek the opinion of the House when the moment comes.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I say to the noble Lord, Lord Bowness, that I wondered whether I might talk about the drafting for a full eight or nine minutes and decided that that would not be very appealing to your Lordships. To the noble Lord, Lord Foulkes, I say that I do not use social media—I am a dinosaur. I am sure that he knows far more about the dark arts than I do; he might regard that as a compliment, of course.

With regard to the substance, the Minister repeated many of the terms that your Lordships have questioned and did not, I think, answer the concerns that were expressed. I remain uneasy about approving an SI when I am still unclear about the detail regarding status during the grace period. I still think that there is a lack of clarity and an uncertainty affecting a very large number of people.

I made my objective quite clear: to seek to persuade the Government to discuss the detail and get a consensus on the meaning of what is provided. What I am proposing would not affect citizens if there was a consensus as to the meaning—even leaving aside what underlies it—so citizens, who are indeed our friends, would not be affected because there is time to get that consensus and bring an agreed SI back to the House. I refute the motivation that has been implied; it is not that at all.

Noble Lords are well aware of the constraints of our proceedings. This is the only step now open. Therefore, I seek to test the opinion of the House.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Baroness Hamwee Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 21st October 2020 Lords Chamber

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

Does anyone in the Chamber wish to speak? We have not received any requests as yet. Does the Minister wish to reply to the noble Lord, Lord Hunt? No? Then I call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

I am, of course, pleased to hear the Government’s decision on this. From and on behalf of our Benches, I added my name to the previous versions of this amendment. The point has been made throughout the Bill that the amendment is unnecessary, but, given that its proposers have kept on pressing, clearly they have not been satisfied. This is good news, but one always has to think around the subject, and I wonder what the correct level of scrutiny is. To me, it involves stakeholders very widely and the context for consideration of a proposal, which, in this case has to be more than just the immigration provisions which may apply. One thing on which I agreed with the Commons and with others who have spoken is that the social care crisis cannot be solved through immigration alone: it is much wider than that.

The correct level of scrutiny involves the organisation being scrutinised—in this case, the Government and their proposals—not being committed to its initial proposition but being prepared to listen to the responses. We are always faced with statutory instruments where there is no possibility of making a change. It would be tragic—I do not think that is putting it too highly—if the opportunity is not taken on this occasion to adopt a much more open-minded practice. Having said that, I welcome what the Minister has said.

[Baroness Williams of Trafford (Con)]

I apologise to noble Lords; I keep wanting to pop up at the wrong time during this debate. However, I thank all noble Lords who have spoken in this part. First, I come to the noble Lord, Lord Rosser, and absolutely commit to the timescales set out in his amendment. He asked, with a certain degree of cynicism, I think, who will carry it out and suggested the Migration Advisory Committee. It must be a hot contender for it, but I take his point about the skills of the people who carry it out.

When settling on the proposals for the new points-based system, we did not do it in isolation; we conducted an extensive programme of engagement with stakeholders— as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Hunt of Kings Heath, alluded to—across the whole of the UK, including in the social care sector, listening to people’s concerns and hearing about the unique challenges they face.

Both the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Hamwee, have in different ways pinpointed that the workforce challenges are not single silver-bullet issues—they will not be solved by continuing along the trajectory of low pay. It is incumbent on employers in what has been, throughout the last few months and years, a very valued occupation not to continue to rely on low-paid workers. As the noble Baroness, Lady Hamwee, said, social care cannot be solved just by immigration; progress needs to be made with a whole plethora of interventions in this area of a much-needed, well-respected and very much appreciated workforce.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, Amendment 2, in its previous form, was also disagreed to in the other place. It seeks to continue certain family reunion arrangements provided by EU law—the so-called Surinder Singh route.

Amendment 2B, tabled in lieu by the noble Baroness, Lady Hamwee, would require the Government to provide the right for British citizens resident in the EEA or Switzerland by the end of the transition period to return to the UK accompanied, or joined, by their non-British close family members on current EU free movement law terms until 31 December 2040—that is, for a period of 20 years from the end of the transition period. They would retain preferential family reunion rights for that period. For the next 20 years, family members of British citizens living in the EEA or Switzerland would continue not to be subject to the same Immigration Rules as family members of other British citizens. This would perpetuate a lack of parity, which the Government cannot accept.

Family members of British citizens resident in the EEA or Switzerland at the end of the transition period are not protected by the withdrawal agreements in terms of returning to the UK, but we have made reasonable transitional arrangements for them. British citizens living in the EEA or Switzerland will have until 29 March 2022 to bring their existing close family members—a spouse, civil partner, unmarried partner in a long-term relationship, child or dependent parent—to the UK on EU law terms. The family relationship must have existed before the UK left the EU on 31 January 2020, unless the child was born or adopted after that date, and must continue to exist when the family member seeks to come to the UK. Those family members will also then be eligible to apply to remain in the UK under the EU settlement scheme.

Family members will be able to come to the UK after 29 March 2022 but will then need to meet the requirements of the family Immigration Rules. Those rules apply to the family members of other British citizens, irrespective of where they come from, and reflect the public interest in preventing burdens on the taxpayer and promoting integration. This is a fair and balanced policy. It was announced on 4 April 2019, so those affected will have had almost three years to decide whether they wish to return to the UK by 29 March 2022 on current EU law terms and, if they do, to make plans to do so.

The Government’s approach strikes the right balance between providing sufficient time for British citizens and their family members living in the EEA or Switzerland to make decisions and plans for returning to the UK, and ensuring equal treatment of the family members of British citizens under the Immigration Rules as soon as is reasonably possible once free movement has ended. We must be fair to other British citizens, whether they are living overseas or in the UK. The same rules should apply to all, not continue for the next 20 years to give preferential treatment to those relying on past free movement rights, which will have been abolished. That is what a fair global immigration system means.

I hope that noble Lords will not insist on their Amendment 2 or agree to Amendment 2B in lieu. I beg to move.

Motion B1 (as an amendment to Motion B)

[Baroness Hamwee]

Moved by

At end insert “but do propose Amendment 2B in lieu—

2B: Page 3, line 8, at end insert—
“(5A) Regulations made under subsection (1) must make provision to enable UK citizens falling within the personal scope of—
(a) the Withdrawal Agreement,
(b) the EEA EFTA separation agreement, or
(c) the Swiss citizens’ rights agreement,
to return to the United Kingdom before 31 December 2040 accompanied by, or to be joined in the United Kingdom before 31 December 2040 by, close family members.
(5B) Regulations under subsection (1) may not impose any conditions on the entry or residence of close family members of UK citizens which could not have been imposed under EU law relating to free movement, as on the day on which this Act comes into force.
(5C) For the purposes of subsection (5A)—“close family members” means—
(a) children (including adopted children), and
(b) other close family members where that relation subsisted on or before 31 January 2020 and has continued to subsist;
“Withdrawal Agreement”, “EEA EFTA separation agreement” and “Swiss citizens’ rights agreement” have the meaning given in section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).””

[Baroness Hamwee (LD) [V]]

My Lords, I am moving an amendment similar to that moved at a previous stage but with a change to meet one of the points made against it.

It came as a shock to me to learn that there will be restrictions on, and conditions applying to, a UK citizen wishing to return to the UK with a non-British family. In Committee, I asked what the Minister would advise a couple with elderly parents in both countries, for both of whom they wanted to care. This rather follows on from the previous amendment. Following that, I received many emails describing many, varied families affected. They all explained the anxiety they felt.

The minimum income requirement will apply, as the noble Baroness said, after March 2022 as it applies now to a UK citizen wishing to bring a non-UK—currently non-EEA—family to this country. I have always felt that the MIR is very harsh. It presents real difficulties, including as regards the spouse’s contribution to the household income. In the 21st century, most households are necessarily two-income households. In response to the point that these families should be treated the same as families that include non-EEA citizens, I say that it should not apply to them either, but that would not be within the scope of this Bill—although I would have liked to have taken that opportunity. Those families will, in very many cases, have been aware of the situation when the family unit was created.

I understand the Government’s concern that EEA citizens should be treated the same as citizens in the rest of the world after the end of free movement, but the situations are not exactly the same. When marriages were made and families created after we had acquired rights of free movement, who would have given a thought to what might happen if those rights ended, or indeed given thought to whether those rights might end? And who in the British military who met their spouse when they were serving abroad would have contemplated this situation? I do hope that the Secretary of State has read their letters.

The provision may not be retrospective in a technical sense, but in an everyday sense it is. This is not something that is widely understood, even now. The Government’s original proposal in June 2017 did not deal with the issue. As the noble Baroness said, the public announcement of the 2022 date came out in a paper in April 2019 and was presented as a concession. The paper said that the Government recognised that UK nationals needed certainty—this was after we were supposed to have left the EU.

I wondered whether I had missed something here, so I checked on what had been done, and when, to make people aware of the position. Had the Foreign and Commonwealth Office attempted to draw this to people’s attention? Had our embassies raised it in local town hall meetings abroad? One, rather dry, comment made to me was that, if these citizens had voting rights, the embassies would have been able to make direct contact with them. I understand that the targeted FCO campaigns have focused largely on rights in the host country, advising people to register and to change their driving licence, for instance.

On the “Living in France” and “Living in Italy” pages on GOV.UK, I clicked on “Ending your time living abroad” and, after a couple more clicks, found—because I was looking for it—“bringing your family”, which told me that a visa would be needed for them. One might easily stop there. Immigration rules required further clicks, and so on. I understand that all this is still coming as a surprise, and of course a shock, to those who happen to trip over it.

An EU citizen here now or by the end of this year can bring in family members—and quite right too. But is it not right for our own compatriots? This is discrimination against UK citizens. It is not as if what we propose would open any floodgates. It is self-limiting: no-one would qualify after free movement had ended; it is not a “perpetual” or “for ever” right, as it has been badged.

Criticism was made on Report that there was no cut-off date by which a UK national must return to the UK. Ministers say that three years gives a reasonable period to plan. This version of the amendment includes a cut-off date—deliberately long—of 20 years after the end of the transition period. By then, most of those affected, who will have formed settled relationships and families, are likely to be over 50 with parents of 70 or 80, so their families would be in a better position to know whether returning to the UK was likely to be necessary. The Minister in the Commons presented the 2022 date as reflecting a need

“to be fair to other British citizens”—[Official Report, Commons, 19/10/20; col. 804.]

as if there is something “other” about UK people who have married people from the EEA. He also said that the Government would keep the policy “under review”, so I would be grateful if the noble Baroness the Minister could expand on that today: when, how, with whom? She has described the policy as simple fairness. We disagree. What we are proposing is what I would describe as fair, and I will wish to test opinion of the House.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The following Members in the Chamber have indicated a wish to speak: the noble Baroness, Lady Ludford, and the noble Lord, Lord Oates. I now call the noble Baroness, Lady Ludford.

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[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken. I start with the noble Lord, Lord Rosser, who rightly points out that the Commons did not divide on this matter on Monday. We should remind ourselves that the British people voted to leave the EU in 2016; we are now four years on from that point.

I will answer the noble Baroness, Lady Hamwee: of course we keep all legislation and policy under review, and we are assisted by MAC in that endeavour. We recognise that UK nationals who moved to the EU expected free movement rights to continue. That is why we have provided for these transitional arrangements, but we have to be fair to other UK nationals whether they live overseas, beyond the EU, or in the UK. The UK family Immigration Rules reflect the public interest in preventing burdens on the taxpayer and promoting integration. UK nationals protected by the withdrawal agreement because they are living in the EEA before the end of the transition period do, of course, have lifetime rights to be joined in their host state by existing close family members. This mirrors the rights of EEA citizens living in the UK by then.

The noble Baroness, Lady Ludford, challenged me about the date of 29 March 2022 being arbitrary. It represents three years after the date when the UK was originally supposed to leave the EU. For me, it strikes the right balance between providing sufficient time for UK nationals and their family members living in the EEA or Switzerland to make decisions and plans for returning to the UK, and ensuring equal treatment of the family members of UK nationals under the Immigration Rules as soon as reasonably possible, once free movement to the UK has ended.

[Baroness Hamwee (LD) [V]]

I am of course grateful to my noble friends who supported this amendment. I hope that I never give my noble friend Lady Ludford cause to look up what I have said in the past. I am particularly grateful to my noble friend Lord Oates, who—if you will—embodies the point I was making about the differences between those who married EU citizens, not knowing what was coming down the road, and those in his position.

I am disappointed in Labour’s response to this because it is a legislative opportunity to get this sorted quickly. The noble Lord, Lord Rosser, and I asked about keeping the policy under review, but it sounds from the Minister as if this is no more than the normal keeping of a policy under review: no detail, no particular plan, no timetable. What she said is not a reason not to pursue this amendment. As my noble friend says, this is not fair and I beg to test the opinion of the House.

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[Baroness Hamwee (LD) [V]]

My Lords, I very much regret the rejection of the clause to which your Lordships had agreed regarding children in care. The Minister said on a previous occasion that we were united on children in local authority care needing a secure status. But insisting on this being achieved for this cohort—and we all understand the difficulties—through the EU settled status scheme rather than on a declaratory basis seems to indicate that the Government are more concerned not to acknowledge that the scheme cannot perfectly deal with every situation rather than to acknowledge the special situation of these children and young people.

The Commons formal reason is that local authorities are supporting this cohort, and the Government are funding support. Well, good—but what do the Government have to lose? The Minister in the Commons said that the idea of applying such a provision retrospectively runs counter to the general operation of the Immigration Rules. But when it is not a tightening of the rules, I do not understand the comment—but there it is.

I also of course regret the rejection of applying a time limit to the detention of asylum seekers and others. The suite of amendments applies clear criteria for detention, and national security would disqualify a detainee from the time-limit provisions. I do not think that it is right to use the position of foreign national offenders as if all detainees were offenders. The amendments would also prevent cat-and-mouse redetention.

The great majority of detainees are released eventually into the community, but they do not know when this will be. Again, the Commons Minister said that it was not possible just to detain someone indefinitely “as such”. That misses the point that there is no time limit, and that means a loss of hope. For months, people in the UK whose lives are restricted to some extent have been saying that they need to know when all this will end, which is understandable—and there is something of a read-across.

The Commons formal reason is that there are already procedural safeguards to ensure the lawfulness of the period of detention. They work so well that, as my right honourable friend Alistair Carmichael observed, £7 million in compensation was paid out last year for 272 cases of wrongful detention.

But I can at least use this opportunity to say how much we welcome the Court of Appeal’s judgment today quashing the judicial review and injunctions policy on the application of medical justice, with the intervention of the Equality and Human Rights Commission and the good work of the Public Law Project—not, if I have the Minister’s word correctly, an “unmeritorious” application.

We shall not pursue this matter today, but we will be back soon on the issue, because it is a matter of fairness and humanity.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, the decisions taken by the other place on all these issues are most disappointing. I thought my noble friend Lord Dubs made a convincing case, but sadly it was not listened to in the other place, as is so often the case now. I hope the Government will take a constructive attitude in working with local authorities to protect vulnerable children. Many local authorities have considerable pressures on them in terms of looking after children in care, and I hope the noble Baroness will confirm that there is a positive attitude from the Government to address these concerns, even if they are not prepared to accept my noble friend’s amendment today.

I note the comment—the noble Baroness, Lady Hamwee, also made the point—that the other Motions in this group make reference to all these dangerous criminals who would potentially be released into the public. I think we have to accept that the people we are talking about here are vulnerable people, and that if there are people who are dangerous criminals, there are other procedures to deal with them. We should not be wrapping people up like that: these are vulnerable people who need our help and support. There is an issue about people being locked up in detention when they have done nothing wrong and not knowing when they will get their release date.

The noble Baroness may well say that they are normally released into the community. That is obviously really good news, but if you are locked up in a cell or in a detention centre and you do not know when you will be released, the fact that you will be released at some point in the future may not be a huge comfort to you. Again, we are not going to pursue these issues any further today, but the fact that the Government rely on those arguments underlines the weakness of their case in this respect. The noble Baroness, Lady Hamwee, said that we will return to these issues at a later date, but we will not be pressing any of them today.

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[Baroness Meacher (CB) [V]]

My Lords, I support most strongly the amendment of the noble Lord, Lord Dubs, which provides for refugee children to come to the UK from EU countries if they have family here with whom they can reunite.

The Government say they have proposals to deal with family reunion, but as the noble Lord has pointed out—I will not repeat his explanation—those proposals would not provide a secure route for child refugees to join their families here in the UK. Why is this country so much less willing than our neighbours in Europe to accept these vulnerable children? Germany stands out as the most generous and morally correct European country on this issue, having taken 71,000 children in 2019, but we do not even measure up to France, Greece or Spain—and two of those countries are a great deal less well off than we are.

It is important to note that local authorities, if adequately funded, are willing to welcome refugee children from Europe and, as my noble friend Lord Kerr pointed out on Report, the Government will have public support if they accept the amendment of the noble Lord, Lord Dubs. Surely the Government want some public support, do they not? They have enough problems on other issues at the moment. The British public understand the importance of refugee children being able to join their families, whatever the reason they became separated in the first place.

In her introductory remarks, the Minister referred to the costs of housing asylum seekers. Will she clarify that the Government would not have to fund the housing of unaccompanied children who come over here to live with their relatives? It is quite important that there is not that financial hit for the Government.

If the Government reject this amendment and children are not able to join their families under the Government’s proposals, many will inevitably resort to the traffickers and the rubber dinghies, with inevitable loss of life. Surely, it is only a matter of time before the Government are challenged under the Human Rights Act, in particular Article 8, on the right to respect for your family life. I would be grateful if the Minister responded to that point.

As the Minister will recognise, this amendment has huge cross-party support and public support across the country. I hope she can persuade her colleagues to accept it.

[Baroness Hamwee (LD) [V]]

My Lords, at every stage, tributes have been paid to the noble Lord, Lord Dubs—rightly so, but I imagine he must sometimes be shouting at his screen, while on mute, “Forget the tributes, just accept the amendment.”

The Commons reason is that leave to enter to make an asylum claim, and a strategy to ensure that an unaccompanied child can be relocated in the UK if it is in the child’s best interests, would be, in their words, as the noble Lord said, a “charge on public funds”. Like him, I appreciate that this is a standard response, but it in no way reflects the debate. They trust that we will regard it as sufficient; it is not a sufficient reason.

We were told that it would not be right to undermine negotiations with the EU, with which, it must be said, agreement on this issue shows no sign of life at all. Domestic legislation must be the least threat in this context. It is still not too late to do the right thing.

Our Immigration Rules are inadequate, and applications outside them rarely successful. The Government have announced that they are looking at safe and legal routes for those seeking sanctuary next year. We on these Benches will not subscribe to the notion that this is an issue for next year. The routes are unsafe now, and we could make them considerably safer. We support the amendment.

[Lord Rosser (Lab) [V]]

Currently, the only legal way to reach this country from the EU in order to claim asylum, including for unaccompanied children, is through the Dublin III regulation on family reunion. That route, as we know, will cease to be available at the end of the transition period in a few weeks’ time. The Government have no comparable proposals to replace Dublin III, since their alternative removes the mandatory requirement to facilitate family reunion, removes a child’s right to appeal against refusal and further narrows the definition of “family”, since a child or teenager would no longer be able to join, for example, an aunt, an older sister or someone who could look after them when they have been separated from their parents

Safe Passage, to which reference has already been made, which supports child refugees, has said, I believe, that more than 90% of the young people and children it has supported through the Dublin III legal pathway would be unlikely to qualify under the Government’s alternative system. The numbers involved are not large and are very small indeed compared with the numbers of those from outside the EU whom the Government, by choice, each year, have enabled to come to this country. Before the mandatory Dublin III provisions came into effect, about 10 or 11 children per year came to this country under the scheme. Since 2016, when it became mandatory, the average number of children per year has been just over 500.

We support the amendment in lieu, Amendment D1, moved by my indefatigable noble friend Lord Dubs, which represents the guaranteed continuation of a decent and humane approach, particularly to children and young people in real need, including in real need of a safe and legal route to safety.

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[Baroness Meacher (CB) [V]]

My Lords, I shall speak in support of the amendment tabled by the noble Lord, Lord Oates. He has removed the only apparent government objection to his original amendment —that no fee could be charged—and, in her opening remarks, the Minister produced a few rather more minor costs. However, he undermined that argument, so perhaps she can clarify that point in her summing up.

As I understand it, this amendment will do no more than bring EEA nationals into line with all other immigrants residing in the UK. The Government have argued in relation to many amendments to this Bill that they are determined to treat EEA nationals in exactly the same way as other people who are resident in this country. Surely the Minister cannot then argue in relation to this amendment that EEA nationals should be treated differently when compared with immigrants from other countries. If she does not accept this amendment, can she explain this apparent inconsistency of approach?

The noble Lord, Lord Oates, has cogently set out the case for this amendment and his arguments need no repetition. For me, the two most powerful are first, that, as others have mentioned, IT system failures and technical faults are all too frequent, while the second is that large numbers of people have limited IT skills. The Minister responded to that point by saying, “That will not be a problem because there will be department-to-department communication.” Let us suppose that someone goes to a doctor needing medical help, but the Home Office system has gone down or some other technical problem has arisen; the doctor cannot treat them. I do not think that it is good enough to say, “Oh, do not worry, it will all be fine on the night.”

Just imagine, as an example, that we no longer had physical passports, merely an entry online to prove our UK citizenship. We could arrive at an airport and not be entirely confident that our details would be found to enable us to board an aircraft. How many of us would be comfortable with that? I certainly would not be. I wonder, when the Government talk about these things, whether they are actually planning to abandon physical passports, because that would be the logic of this situation. I will support this amendment if it is put to the vote.

[Baroness Hamwee (LD) [V]]

My Lords, it is rare for a campaign to take off in the way that the call for physical proof has done. The Government have made their arguments over a number of stages and those who have been calling for this have not been satisfied—they certainly have been following what is going on. I regret that the Minister in the Commons did not address the issue but, apart from the standard financial privilege response, said that the issue had been debated many times. Yes, it has, but no one seems to have changed their position.

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[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

My Lords, I have received no notice of unlisted speakers. Does anyone in the Chamber wish to speak? No. In that case, I now call the noble Baroness, Lady Hamwee, and hope that she has been unmuted.

[Baroness Hamwee (LD) [V]]

This stage does not need a long speech, so I will say only that I understand why the noble Lord, Lord McColl, is not pursuing matters today. I know that he will continue to press for all the things his Bill covers with regard to victims of trafficking and exploitation, and no doubt many other things as well. Of course, we support him. We, too, are concerned about this dreadful crime and the importance of supporting all those who have been victims of it.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I was pleased to hear that the noble Lord, Lord McColl of Dulwich, has received assurances. I am particularly pleased that the noble Baroness, Lady Williams of Trafford, has given him assurances regarding what she will do to help progress this, and it was also good to hear that he has accepted them.

We all know that the noble Lord, Lord McColl of Dulwich, is highly respected, not only by me but by the whole House. He is a wonderful Member of this House, both in his previous professional career as a surgeon and in his work on the Mercy Ships. While I have been in this House for the past 10 years, he has consistently campaigned on violence against women and violence against people in general and on modern slavery. As I have said before, it is high time that the Government agreed with the noble Lord and moved things forward. The noble Lord’s Bill, which he referred to, which he and Iain Duncan Smith are promoting in the other place, is reasonable, sensible and practical, and the Government should be proud to support it. I hope that, in the not too distant future, we will see the Government give active support to the Bill because, sadly, it has left this House twice only to be wrecked in the other place by a group of people who seemed to get pleasure out of wrecking good Private Members’ Bills, so I hope that will stop and that we will get the Bill through. In his Private Member’s Bill he asks only that people are treated with dignity and respect and that if you are accepted as a victim of modern slavery in England and Wales, you should be treated exactly the same as you are treated in Northern Ireland and in Scotland, because their legislation is superior to ours, and we want it all the same.

I am therefore delighted that there will be a discussion and that the Minister and the noble Lord will be involved in that, and I hope that we will have some good news in the weeks and months ahead.

Extradition (Provisional Arrest) Bill [HL]

Baroness Hamwee Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 14th October 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I add my regret about the position on the European arrest warrant. Our post-Brexit arrangements in the realm of security and policing seem precarious or, at best, a poor substitute for what we have now.

When noble Lords debated what went to the Commons as new Section 74B(8)—the subject of Amendment 3 —the noble Lord, Lord Kennedy, said that the conditions were a “reasonable and proportionate” process. I say they are more important than a process; they are about consultation, assessing the abuse of the Interpol Red Notices system, and trust in the system. The Government gave assurances then that they would not include countries likely to abuse the system and that the amendment would not conflict with how the Government plan to deal with the regulations.

I will focus on what was our amendment, which is currently the new Section 74B(9), which the Government seek to remove by Amendment 4. That provides for regulations to Schedule A1 that can add specified category 2 territories. That is jargon for something quite important.

The amendment has an impeccable pedigree. The noble and learned Lord, Lord Judge, and the noble Lords, Lord Anderson of Ipswich and Lord Kennedy, supported it at previous stages—I am glad that the noble Lord, Lord Anderson, will be speaking on it shortly. I can think of no reason for the Government resisting this provision other than “It is not how we do things”, or possibly “It was not invented here”. I took comfort that I was not on the wrong track by the support that I received from Cross-Benchers, eminent lawyers whose perspective could not be thought to be distorted by party-political considerations, although I do not think that this issue is party-political.

The provision that the Government seek to remove allows regulations to designate only one country at a time. There is a simple reason for that: to enable Parliament to play its proper part. We all know that such instruments cannot be amended, so if we are presented with a list of countries including one bad apple, in human rights terms, could we expect Parliament to agree to the bad apple to avoid losing the arrangements with all the others, or to reject them all when only one is an issue? I used the examples of an order applying to both the Netherlands and Turkey, or to Sweden and Venezuela. No two countries are quite alike. I could extend the first pairing to a trio, as someone said to me yesterday: France is quite different from Turkey, and Turkey is quite different from Syria.

At previous stages, noble Lords explained their concern that the Government’s judgment could be swayed by factors unconnected with the assessment of a country’s human rights record. Favours for trade concessions were mentioned. That has happened. The noble and learned Lord, Lord Judge, put it neatly, saying that the time may come when another Government seek a favour from this country or we seek a favour from them. He gave an example: “Do you really want our safety equipment? Do you really want our artificial intelligence? Let’s have a mutual extradition arrangement.” He could also envision the possibility—not immediately, but not remotely either—of the Government of the day wishing to associate themselves with a country that shared their political views but was nevertheless not a desirable country with which to have these arrangements. The noble Lord, Lord Anderson, described the provision as meeting the problem of a non-amendable instrument without insuperable difficulties for the Government.

The Government have argued that countries can be added in multiples under the parent Act and so there is no need to make a change, but should we not always be on the lookout for better ways of doing our job of scrutiny? They also said that the courts would throw it out if a country did not respect rule of law. However, the courts can only consider applications from individuals, case by case. They can only consider what the Government put in the regulations when those regulations are applied and the individual affected challenges the action.

The Minister has told the House that she would not present an SI that she knew would run into trouble. I say this so often that the Minister must think that I have got it in for her—I really have not, not personally—but we must depersonalise these things. She may be the Minister for longer than I am here, but she will not always be the Minister. There may be a Government whose judgment she questions. She says that the House could vote down an instrument. The House is responsible and would not want to because of one bad apple.

At Second Reading in the Commons, the Minister said that the Bill was not concerned with the UK’s extradition relationship with other countries, but it is. He said that when a fugitive is wanted for a serious offence by a trusted country, he is brought before a UK court, but that is not the issue. The Commons were told that the amendment is not required and is unnecessarily burdensome. It had not occurred to me but, as a Member put it, considering the Government’s vocal support for the Magnitsky Act to deter human rights abuses, it would be hypocritical to oppose an amendment that has the same purpose.

In Committee in the other place, the Minister, James Brokenshire, said:

“Any additions will be dictated by the will of Parliament”—


that is what this provision would put in place—

“not by an unusual process such that this would impose. If a country is proposed that Parliament does not agree should be specified, then the regulations will be voted down in the normal way. We judge that that remains the rightful process.”—[Official Report, Commons, 8/9/20; col. 567.]

It may be an unusual process, but why is the process invariable? Voting down regulations listing 10 or 20 countries would cause a lot more nuisance for the Government than voting down regulations relating to a single country and there would be very little pressure on parliamentary time.

We are not challenging the premise of the Bill, but we are defending the sovereignty of Parliament, as distinct from the Executive. I still do not understand the technical, practical or political arguments. We would deal with a bundle of instruments, one after the other, which is a bit tedious, but does that matter? There is no delay, just a sensible opportunity for each House properly to give or withhold approval. I fail to see why the Government feel threatened by such a common-sense proposal. When the moment comes, I will seek the opinion of the House.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, the following Member in the Chamber has indicated their desire to speak, so I call the noble Baroness, Lady Ludford.

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Moved by

[Baroness Hamwee]

Leave out “agree” and insert “disagree”.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Baroness Hamwee Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 12th October 2020 Lords Chamber

[Lord Rosser (Lab) [V]]

Along with my noble friend Lord Kennedy of Southwark, I thank the Minister and congratulate her on her stamina and patience throughout consideration of the Bill, if not, perhaps, on the number of government concessions. We also thank her for her typical willingness to meet and discuss matters relating to the Bill; that is much appreciated. We appreciate, as well, the contribution of the noble Lord, Lord Parkinson of Whitley Bay, and the work of the Bill team. In addition, perhaps I may be permitted to thank Grace Wright in our office for all her work and invaluable advice on the Bill.

This Bill has of course had its own unique incidents, not least the temporary hiccup over the voting arrangements. Let us hope that that remains unique to it.

As the Minister said, the Bill now goes back to the Commons—in my view, certainly a better Bill than when it left the other place. All that we can now do is wait to see what the Commons make of the amendments passed by your Lordships’ House.

I reiterate on behalf of my noble friend Lord Kennedy of Southwark and myself our thanks to the Minister, the noble Lord, Lord Parkinson, and the Bill team, and indeed to all noble Lords who have participated in the lengthy and interesting debates during the passage of the Bill.

[Baroness Hamwee (LD)]

My Lords, as the Minister said, the Bill is about ending free movement. From these Benches, we are no more enthusiastic about that than when the Bill started; if anything, perhaps less so, particularly because the debates have vividly demonstrated the impact on UK citizens resident in the EU and EU citizens living in the UK.

In our view, it is not surprising that the opportunity has been taken to pursue issues relating to the ending of free movement that have a wider context—a rather softer way of describing the various amendments that all sailed through the Public Bill Office, which is particularly careful in that regard. All the amendments have been very people-focused, which shows that there is a view of a fair and firm asylum system that is very different from the Government’s.

This is not the moment for long speeches, nor to rehearse the arguments on the amendments that were agreed by our House with such notable support. The noble Baroness, Lady Williams, and the noble Lord, Lord Parkinson, bore with good humour all that was thrown at them, although I do not know whether they took it out on the cat when they got home.

I express my thanks to our colleagues on the Liberal Democrat Benches and elsewhere in the House; to the Bill team for all their work; and, since the noble Lord, Lord Rosser, has paved the way, to Elizabeth Plummer in our whips’ office, whose assistance on the Bill has been magnificent.

We would like to think that we will not be discussing the various amendments again but I realise that we may well do so. In the meantime, with the obvious caveats, we support the Motion that the Bill do now pass.

[Lord Alton of Liverpool (CB)]

My Lords, it is a privilege to have been asked to make the concluding Cross-Bench speech at the end of our consideration of the immigration Bill. I thank not only the noble Baroness, Lady Williams, and the noble Lord, Lord Parkinson of Whitley Bay, for their unfailing courtesy and diligence but also the unsung heroes, the Bill team.

During one of my interventions I drew the attention of the House to the tragic story of a Ugandan refugee, Mercy Baguma, who in August was found dead in a Glasgow flat while her one year-old son was found crying beside his mother’s body, weakened from several days of starvation. Stories such as hers and of those caught up in the underlying themes of this Bill—from the vast displacement arising from movement of refugees, to the criminal gangs who profiteer from this tide of human misery and the consequences of the so-called hostile environment—have provided the backdrop to our proceedings.

Last week, by a majority of 101, the House supported the amendment of the noble Lord, Lord McColl, on human trafficking. The Commons will now have the opportunity to reconsider that issue and other changes, such as the amendment of the noble Lord, Lord Oates, on physical documentation, which we have incorporated into the Bill. Although the primary purpose, as the noble Baroness, Lady Hamwee, has said, is to end the exercise of EU rights of free movement in this country, noble Lords have focused again and again on the position of children and young people of European parentage who were born here or who have grown up here.

In conclusion, I remember what the noble Lord, Lord Naseby, said from the government Benches: that it would be deeply upsetting for any of us to find our children or grandchildren experiencing this exclusion from their rights to British citizenship. Thanks to the amendments we are sending back down the Corridor, the House of Commons now has the opportunity to correct this profound and damaging injustice, but also to improve the legislation. I hope it will seize the opportunity to do so.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Baroness Hamwee Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, I rise to express concern about Amendment 24 in the name of the noble Baroness, Lady Bennett of Manor Castle. She has highlighted some hard cases in the cause of her apparently wide-ranging proposed new law. That is an approach that I always discourage. I think legislation of this kind has to be carefully thought about, assessed for cost and consulted on.

In Committee, the main focus of amendments on this issue was to seek greater support from public funds during coronavirus. The Minister explained that some of the Government’s coronavirus measures—quite generously, one might say—applied to those with no recourse to public funds, who are the subject of the amendment of the noble Baroness, Lady Bennett.

I believe that migrants coming into the UK should be able to maintain and support themselves and their families without posing a burden on our hard-pressed benefit system. I do not know much about the detail of the arrangements for prohibiting access to public funds, but I know that taxpayers already foot large bills for lawyers to prioritise immigrants’ needs and to block the deportation of those who do not have the right to remain.

We cannot introduce an immigration system, as posited here, that has the effect of attracting migrants—whether from the EU, which is today’s subject, or elsewhere—for welfare benefits and not for work. This will not win the support of UK citizens who are struggling to make ends meet and are facing job losses and fiscal deficits as a result of the coronavirus crisis. In short, those who are, in reality, economic migrants should be contributors to the public purse, as I think many are. I hope that the House will reject this amendment.

[Baroness Hamwee (LD)]

My Lords, in replying to this and the other amendment on no recourse to public funds in Committee, the Minister, the noble Baroness, Lady Williams, said, according to Hansard, that Home Office analysts were looking at the data to determine what figures could be “reduced”. I would like to think that that might have been about reducing the numbers of people with no recourse, but I suspect that it was a misprint for “produced”. The noble Baroness is nodding.

Almost all the speakers have lit on the issue of lack of data. It occurs to me that a lack of data indicates something of a shortfall in interest among the policy makers on the impact of the policy that they are making. Like much that relates to the immigration system, this amendment is about humanity and common sense: common sense because of the important public health argument about ensuring that people are not prone to disease that can be prevented and that children are fed well enough to be educated and to grow into good citizens, and humanity for obvious reasons.

Hard cases are not to be excluded when we think about policy; they have to be considered to bring attention to bad law. I do not think that the taxpayer is a single cohesive figure. Taxpayers have a wide range of views and there are quite a lot among us who would like to see our taxes spent differently and better. If that means more tax being raised, that is a price that we understand we have to pay.

[Lord Rosser (Lab) [V]]

My Lords, Amendment 24 in the name of the noble Baroness, Lady Bennett of Manor Castle, would prevent regulations being made under Clause 4 until the Secretary of State had provided legislative measures to ensure that EEA and Swiss nationals in the UK are not subject to no recourse to public funds. This includes repealing or amending relevant no recourse to public funds provisions in the Immigration Act 1971 and the Immigration and Asylum Act 1999. I assume this means any regulations under Clause 4 and not just regulations relating to no recourse to public funds.

We had an amendment in Committee that would have had the effect of not applying the no recourse to public funds rules during the current Covid-19 pandemic, and then until such time as Parliament decides. To keep the amendment within the scope of the Bill it applied only to EEA and Swiss nationals. We have been calling since April for no recourse to public funds to be suspended for the duration of the coronavirus crisis. We asked the Government to lift no recourse to public funds as a condition on a person’s migration status to ensure that nobody was left behind in the public health effort undertaken in the fight against the coronavirus. In June, the Home Affairs and Work and Pensions Select Committees recommended that the Government should “immediately suspend NRPF” for the duration of the pandemic on public health grounds. The Work and Pensions Committee said:

“As a result of the no recourse to public funds condition, many hardworking and law-abiding people are being left without a social safety net and at risk of destitution and homelessness.”


Our amendment found no favour with the Government —as, indeed, may prove to be the case with every amendment on this Bill, with the exception of perhaps just one. As set out in Hansard, I asked—as did my noble friend Lady Lister—for some numbers in relation to no recourse to public funds. The Minister said they were not part of published statistics, but that Home Office analysts were looking at the data to determine what figures could be produced. As has been pointed out by the noble Baroness, Lady Hamwee, it said “reduced” in Hansard, but it has now been confirmed that it should have said “produced”. Whatever the situation, it would be very helpful if the Minister could say exactly when the Home Office analysts expect to complete the exercise that they are undertaking in relation to figures, information and data available.

This amendment goes further than our amendment in Committee on no longer applying NRPF, in that it does not relate only to the period of the pandemic and does not leave it for Parliament to decide if and when its terms are no longer to apply. Like the noble Baroness, I await the Government’s response.

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[Baroness Hamwee (LD)]

My Lords, discretionary leave is a precarious response, as we have heard, and it is not frequently granted. We support the amendment and the Private Member’s Bill of the noble Lord, Lord McColl, as I have said on many occasions.

Some victims—though one would prefer to say “survivors”—want to get back home as quickly as possible. Others want to stay in order to recover—as far as recovery is possible—and for other reasons, as set out in proposed new subsection (2) of the amendment. One of the frequently expressed concerns about our response to slavery is the limited period provided for recovery after rescue, and 12 months is hardly a big ask.

One of the findings of the independent review of the Modern Slavery Act, published last year, was that few victims pursued or were granted civil compensation where that was possible. I therefore particularly support paragraph (c) of proposed new subsection (2).

Participating as a witness seems to be a factor that leads to the granting of discretionary leave. That can be a very big ask—I have used that word before—of the victim. Evidence is obviously important in prosecuting traffickers and exploiters, but granting leave to remain—the immigration response—should not be a transaction balanced by the person being prepared to give evidence. The issues that have been raised of course go far beyond the Bill. In Committee, we were reminded of the Government’s commitment to a world-leading system—and we have led the world.

Regarding the programme to transform the identification of and support for victims, and the legal framework, this is the second debate this afternoon in which data has been mentioned. Data is important. It indicates, among other things, a real interest in the impact of policy. That framework could, if we get it into the Bill, repeal the current provisions and be extended to all victims, which is what the noble Lord, Lord McColl, seeks—as do all noble Lords who have spoken. Having that framework in prospect should not preclude agreement to the amendment.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 27, proposed by the noble Lord, Lord McColl of Dulwich, has been signed by the noble Lord, Lord Alton of Liverpool, the noble Baroness, Lady Hamwee, and myself. The noble Lord, Lord McColl, has been tenacious and resolute in his efforts to speak up for victims of modern slavery, and it is very much to his credit that he has continued to be a voice for the victims of these appalling crimes. It is a matter of much regret that, so far, the Government have not been minded to listen to him. I join the noble Lord, Lord Alton of Liverpool, in his warm tribute to the noble Lord, Lord McColl. I have respected and admired the noble Lord since my earliest days in this House. He is a thoroughly good and decent man, and an example for all of us to follow. He set out a powerful case for the amendment. If it is not accepted, I have no doubt that it will be carried by a large majority when the House is divided. It was good to note his confirmation that he had the support of the honourable Member for Chingford and Woodford Green in the other place—not somebody who would normally be described as a lefty do-gooder.

The amendment provides for the circumstances whereby a person over the age of 18 is to be granted leave to remain in the United Kingdom, and proposed new subsections (2) and (8) set the necessary parameters for granting this status. The amendment is of course confined to EEA and Swiss nationals, but that is to get it within the scope of the Bill. Many victims of modern slavery are vulnerable people who are British and so do not need this additional protection, but that does negate the importance of helping those victims from abroad.

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Moved by

[Baroness Hamwee]

27A: After Clause 4, insert the following new Clause—
“Rights and applications after the commencement of this Act
(1) In the event that a person with settled status granted pursuant to the Scheme applies for British citizenship, the period of residence in the United Kingdom which was the qualification for settled status must be treated as not being in breach of any provisions referred to in subsection (6).(2) A person resident in the United Kingdom on or before 30 June 2021 shall be treated as not being in breach of any provisions referred to in subsection (6) if he or she is in scope of eligibility for leave to remain under the Scheme.(3) The Secretary of State may not refuse an application by a person for settled status or pre-settled status under the Scheme made during the period ending on 30 June 2021 on the basis that he or she does not hold or has not held comprehensive sickness insurance.(4) The Secretary of State may not refuse an application for settled status under the Scheme made after 30 June 2021 by a person with pre-settled status on the basis that he or she does not hold or has not held comprehensive sickness insurance.(5) “The Scheme” means the scheme known as the EU Settlement Scheme for settled status or pre-settled status under Appendix EU of the Immigration Rules and the terms “settled status” and “pre-settled status” are interpreted accordingly.(6) The provisions referred to in this subsection are all provisions applicable to the person’s residence including the Immigration Acts and the Immigration Rules.”

[Baroness Hamwee (LD)]

My Lords, the amendment was written with the aid of anti-migraine tablets after some perhaps slightly unfocused exchanges in the previous stage and on the first day of Report about the grace period for the EU settlement scheme and comprehensive sickness insurance. I will not be seeking the opinion of the House.

I have tried to note situations that are giving cause for concern. I am aware that we now have a statutory instrument, and I hope that today’s debate can contribute to our consideration of that. As I said last week, those who know the subject were still poring over the SI, and I do not know whether they have yet come up for air.

I am seeking assurances, through this debate, that the propositions set out in the amendment accurately reflect, and are reflected by, the statutory instrument—I suppose it should be the latter. If what I am asking for cannot be put on the record today, a letter would be very welcome.

The first assurance I seek is that once someone has settled status he can be confident that he will be treated as not having been in breach of immigration provisions during the qualifying period; in other words, that nothing will come back to bite him—not the sort of language one uses in legislation. The second is that a person resident in the UK before the end of the grace period, and eligible for leave to remain, will be treated as not being in breach of those provisions. The third is that an application for status, whether settled or pre-settled status, may not be refused because the applicant does not, or has not had, comprehensive sickness insurance. I acknowledge that there could be another basis for refusal. Fourthly, I would like an assurance that the lack of CSI may not be a reason for refusing settled status after the same date to someone who holds pre-settled status.

I do not for a moment believe that the amendment is perfectly drafted but I hope that my objective is clear. It would be helpful if the Minister’s response is as jargon-free as possible and in the sorts of terms I have used.

On 16 September, the Minister said:

“The grace period statutory instrument does not change the eligibility criteria for the EU settlement scheme and those criteria do not include CSI.”—[Official Report, 16/9/20; col. 1340.]


Later, however, she said that the grace period maintains CSI as a requirement for lawful residence during the grace period, for students and people who are self-sufficient, and that

“EEA citizens’ rights to live and work in the UK will not change during the grace period, nor does the grace period SI change the eligibility criteria for the EU settlement scheme. Therefore, there is no change to the Government’s policy that comprehensive sickness insurance is not required to obtain status under the EU settlement scheme.”—[Official Report, 30/9/20; col. 244.]

My amendment is directed at what that means in practice because, with regard to the scope of the regulations, the Minister went on to say:

“People need to exercise free movement rights to benefit from the savings in the grace period SI. We are not inventing rights of residence to save them, because that is not what the withdrawal agreement says.”—[Official Report, 30/9/20; col. 244.]


What the withdrawal agreement does say in Article 18(3) is this:

“Pending a final decision”,


and I stress that phrase,

“by the competent authorities on any application referred to in paragraph 1”—

in the case of the UK this relates to applications to the EUSS—

“and pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities”,

and I stress the next bit as well,

“all rights provided for in this Part”,

which are residents’ rights and all related equal treatment rights in the agreement,

“shall be deemed to apply to the applicant, including Article 21 on safeguards and right of appeal, subject to the conditions set out in Article 20(4).”

On the first day of Report, the noble Lord, Lord Rosser, explained the concern raised with both of us by the3million that:

“In their current form, the regulations appear to exclude a large cohort of people from having a legal basis to live in the UK during the grace period and whilst their application is pending. The regulations limit a legal basis to live in the UK to those who were ‘exercising treaty rights’ in accordance with existing EEA regulations by the end of the transition period.”—[Official Report, 30/9/20; cols. 240-41.]


The organisation amplified this by saying:

“Crucially, there will be people who are eligible for status via the EUSS who will not have a legal basis to live in the UK during the grace period. Furthermore, anyone who has … submitted an application to the EUSS before the end of the transition period … is pending a decision after the transition period ends … Will have to demonstrate they fall within the scope of the regulations to have the benefit of its protection.”


Generally, those protected by the regulations will be economically active at the end of the transition period, and they will have the benefit of legal protections during the grace period and while their application is pending. However, that is not the case for those who are not economically active by the end of the transition period, such as an EU citizen dependent on a British spouse and without private health insurance. As my noble friend Lady Ludford said, the technical term is comprehensive sickness insurance, but really in this country we know it as private health insurance, which fulfils what is meant by comprehensive sickness insurance.

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[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken in this debate, particularly the noble Baroness, Lady Hamwee, who has tabled Amendment 27A. I hope I can provide clarification.

The new clause has three main purposes. First, it seeks reassurance that comprehensive sickness insurance is not, nor will be in future, an eligibility criterion for applications to the EU settlement scheme. Secondly, it seeks to provide that if someone is eligible to apply to the scheme, their previous residence should be deemed lawful, whether or not that was the case under the EEA regulations. Thirdly, the new clause seeks to remove the lawful residence requirement from British citizenship applications by those who hold settled status under the EU settlement scheme.

Let me address the noble Baroness’s concern about comprehensive sickness insurance, which has been raised several times during consideration of the Bill. Subsections (3) and (4) of her proposed new clause concern eligibility to apply to the EU settlement scheme. I can assure the noble Baroness that currently, there is no requirement for comprehensive sickness insurance or previous lawful residence under the EEA regulations in order to be eligible to apply under the scheme. This will not change for applications made after the transition period, nor after the grace period. I can reassure the House that an application made before or after the deadline of 30 June 2021 will not be refused for failure to hold comprehensive sickness insurance. Accordingly, the amendment is not necessary.

I turn to proposed new subsection (2), which seeks to provide that the previous residence of anyone who is eligible to apply to the EU settlement scheme by the deadline of next June will be deemed to have been lawful whether or not it in fact was. In doing so, the intention is to support applications for citizenship, which I will come to shortly. However, the effect of this amendment is wider. It would create new residence rights for those who do not have them at the end of the transition period, as they are not complying with free movement law and have yet to apply to the EU settlement scheme. Those who are currently here without residence rights will continue to have no residence rights until they apply to the EU settlement scheme; that is why we are encouraging them to apply to the scheme.

In line with the withdrawal agreement, the Government are using secondary legislation under the European Union (Withdrawal Agreement) Act 2020—the so-called “grace period SI”—to save the existing rights of those EEA citizens and their family members who are lawfully resident in the UK at the end of the transition period under 2016 EEA regulations. The noble Baroness, Lady Ludford, asked me to set out the existing rights; they are pre-settled or, indeed, settled status. This means that an EEA citizen, or their family member, who is resident in the UK at the end of the transition period but is not exercising free movement rights will still be able to apply to the EU settlement scheme by the deadline of 30 June next year. However, they will not have any residence rights under free movement law protected during the grace period. This is for the simple reason that they do not possess these rights at the end of the transition period. This reflects the current situation, as set out in the free movement directive and the EEA regulations.

The noble Baroness’s amendment seeks to create new EU rights of residence beyond those saved by the grace period SI once free movement has ended. That cannot be right, nor accepted by the Government. Having an EU “right to reside” provides other rights beyond the right to stay in the UK, as it can confer access to social security benefits. I am sure noble Lords would agree that, at this juncture, after we have left the EU, it would not be appropriate to widen EEA citizens’ benefit eligibility any further than those groups who are already entitled to it.

This brings me to the final limb of the new clause, which I think is probably its main objective, concerning how EEA and Swiss citizens who hold settled status might then proceed to naturalise and become British citizens. The noble Baroness will be aware that the power to determine naturalisation applications from all migrants—not just EEA and Swiss citizens—is set out in the British Nationality Act 1981. Under Section 6(1) of the Act, an applicant is required to show that they have sufficient residential ties here. For example, they must have resided here lawfully for at least five years and they must no longer be subject to any immigration time restrictions. Proposed new subsection (1) would require any residence before the granting of settled status to be treated as lawful, regardless of whether it actually was or the circumstances under which it occurred. That cannot be right, and I do not consider it unreasonable to ask anyone wishing to become British to have resided here lawfully.

Amendment 27A seeks to treat those with settled status under the EU settlement scheme differently from other EEA and Swiss citizens, and also non-EEA citizens. I believe the noble Baroness is most concerned about those who—as the noble Baroness, Lady Ludford, outlined—are here as students or are self-sufficient. This is because free movement rules require them to hold comprehensive sickness insurance after their initial three months of residence in order to be lawfully resident. This is not a new issue. Had a student or self-sufficient person previously made an application for permanent residence documentation without holding CSI, they would have been refused.

The noble Baroness may be aware that, even where CSI has not been held by a student or self-sufficient person, it does not mean that a naturalisation application must be refused. The British Nationality Act permits the application of discretion to this requirement in the special circumstances of a particular case. Caseworkers will therefore continue to examine each application to understand why the individual did not comply with the EEA regulations, as well as any reasons which can nevertheless allow an application to be granted. This is already set out in published guidance for decision-makers. However, it is right that we assess on an individual basis, rather than having a general rule to overlook any non-compliance.

The noble Baroness, Lady Whitaker, made a point which we went over in detail yesterday, about people who are applying either to the EU settlement scheme or for citizenship, which are two different things. There are a lot of voluntary organisations to help people who might need assistance through this process, but naturalisation as a British citizen is not part of the EU settlement scheme; nor is it covered by the withdrawal agreement. We welcome people who make the personal choice to become British citizens, but there is no need for any new arrangements because of our leaving the EU. The existing system already applies equally and fairly to all applicants. I hope that I have given the noble Baroness the assurance that she sought and that she is happy to withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, I am grateful to those who have taken part in this debate. My noble friend Lady Ludford asked whether this was a chessboard, but I think it is more like snakes and ladders: up you go, you think you are settled and then you slither downwards into what she called the “crocodile-infested” waters of CSI.

When the Minister referred to “lawful residence” under the British Nationality Act I wrote a question to myself about whether this meant treaty rights—which you would need to have had CSI to exercise—to which I think the answer is yes. She then mentioned discretion. One always has a concern about discretion because the law should provide, not leave things to caseworkers, but the situation that we have posed is not unusual.

I do not intend a pun here, but the issue is not settled. I am glad that we have had this exchange. I do not pretend to know whether I am comforted. I think I am not, as noble Lords will understand from my last remarks, but much better that I leave the experts to use what the Minister has shared with us when they are considering the regulations. I thank her and beg leave to withdraw the amendment.

Amendment 27A withdrawn.

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[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

The noble Lord, Lord Naseby, has withdrawn, so I call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD)]

My Lords, on the first day of Report, on an equivalent amendment to Clause 4, the Minister gave an assurance that the Government have absolutely no intention of acting incompatibly with the citizens’ rights provisions in the withdrawal agreement. However, as the noble Lord, Lord Flight, has said, that is not the point. He set out very carefully the social security provisions which are the issue here. The concern is that the use of regulations, or secondary legislation, to modify the primary legislation that is the basis of the various benefits could wittingly or unwittingly modify them—“modify” is a polite legislative word for “cause a lot of people a lot of problems”. If this amendment were part of the Bill, it would protect against this.

Last week, the noble Lord referred to the establishment under the 2020 Act of the Independent Monitoring Authority, and I was grateful for that. I share a rather wry smile with noble Lords because provided for in the authority’s powers is that it may make applications for judicial review—we all know the Government’s expressed position on activists and lawyers using applications for judicial review and generally not liking frequent resort being made to them. There is of course a review of the use of judicial review going on at the moment. So I thank the noble Lord for that moment of amusement in this complicated area. I support the amendment.

[Baroness Sherlock (Lab) [V]]

My Lords, as we heard from the noble Lord, Lord Flight, this amendment would prevent regulations made under Clause 5 including any provisions that could be inconsistent with the withdrawal agreement. I presume that the aim is to avoid any action that might serve to undermine the rights of UK citizens in the EU and EU citizens here that were guaranteed under the withdrawal agreement.

As the noble Baroness, Lady Hamwee, said, we have had this debate at earlier stages and on Clause 4. On the basis of those past debates, I think there is a decent chance that the Minister will say that this amendment is unnecessary. But as the noble Lord, Lord Flight, pointed out: what is the downside? Given the uncertainty caused by statements elsewhere about the nature of the withdrawal agreement and the extent to which the UK is committed to it, the Minister will understand why some noble Lords are nervous and want the kind of assurances that one would hope she should be able to give without difficulty.

The noble Lord, Lord Flight, explained the terribly important issues that are covered by Clause 5. This will be our only engagement on Report with the subtle joys of this clause. I raised many of the issues about social security co-ordination at Second Reading and in Committee, and felt that I did not get satisfactory answers in Committee. However, I have now received a letter from the Minister, the noble Baroness, Lady Stedman- Scott, which has provided more information. In the light of that, I do not intend to move Amendment 29 in my name in the next group.

I remain very concerned about the implications for too many people of the loss of reciprocal arrangements for social security co-ordination, but I recognise that we will not get anything more at this stage of the Bill. I hope that the letter I mentioned will be placed in both Libraries. Because it contains information about new developments which were not reflected in the draft regulations shared with us in Committee, it would be helpful if the letter were displayed as soon as possible in the relevant place under the “will write” section of Bills before Parliament, so that its contents are readily accessible to those who are interested.

These are very important issues. I look forward to hearing what the Minister has to say.

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Moved by

[Baroness Hamwee]

31: Clause 8, page 5, line 34, at end insert “except sections—
(a) (Time limit on immigration detention for EEA and Swiss nationals),(b) (Initial detention: criteria and duration), and(c) (Bail hearings)which come into force six months after the day on which this Act is passed.”Member’s explanatory statement
This amendment provides that new Clauses "Time limit on immigration detention for EEA and Swiss Nationals", "Initial detention: criteria and duration" and "Bail hearings" come into force six months after the Act is passed.

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[Lord Beith (LD)]

My Lords, my name is attached to the noble Lord’s Amendments 32 and 33 because they address two long-standing concerns of the Constitution Committee. The first is the broad and unjustified use of Henry VIII powers. The second is the confusing and counterproductive complexity of immigration law, which we believe needs to be clear and consolidated. That is why I support these amendments. I welcome the fact that the Government have addressed the first of these issues by tabling Amendment 32A, which makes more specific the scope of the power, confining it, as the noble Lord, Lord Pannick, has said, to Articles 2 to 10 of the workers regulations.

I would have welcomed a similar willingness to move on the issues that the Constitution Committee has raised in relation to paragraph 6 of Schedule 1, which nullifies EU-derived rights and remedies. The noble Lord, Lord Pannick, has quoted some parts of paragraph 6 and they are really extraordinary: rights should disappear because

“they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts”

and, even stranger, because they are

“otherwise capable of affecting the exercise of functions in connection with immigration.”

I can think of all sorts of functions that people might consider were “in connection” with immigration, but we really need laws that are clearer than that.

Adrian Berry, chair of the Immigration Law Practitioners’ Association, said when he gave evidence to us:

“How is the ordinary person, never mind the legislator, to know whether the law is good or not in a particular area if you draft like that?”


I know that parliamentary draftsmen have had a pretty heavy diet of work lately, not least with Covid-19 orders, but it is possible to do better than that, unless the instructions given to them were so unspecific as to leave things so wide open that they had to draft the legislation in that extraordinary way.

Paragraph 69 of the Explanatory Notes tries to explain why this is necessary, but fails to do so—at least I find it completely unpersuasive. I did learn a little more about Chen carers than I knew previously, which was almost nothing. I am sure that my noble friend Lady Hamwee thinks of little else at some stages of the Bill than the quite obscure provision that resulted from the Chen case before the European Court of Justice. However, I certainly found the argument unpersuasive.

The committee says:

“The statute book requires clarity rather than obscurity and provisions such as these threaten to frustrate essential ingredients of the rule of law.”


An essential ingredient of the rule of law is that it is on record and visible and capable of being understood, particularly by those who practice it professionally, but preferably by a wider range of people as well, including those who may face either a penalty or, in this case, the inability to have a right to which they believe they are entitled as a consequence of wording as vague as this.

There is still time to improve this: the Minister could come back at Third Reading with an amendment that makes clear the purpose of this paragraph, and I am only sorry that she has not done so thus far.

[Baroness Hamwee (LD)]

My Lords, the explanation of the noble Lord, Lord Pannick, of how unsatisfactory the Bill is, particularly Schedule 1, was a model of clarity, unlike the schedule. He has also left us, from the earlier stage, with a vision of straining to read the Emperor Caligula’s laws, and that will stay with me, possibly longer than Schedule 1.

The comments of the Constitution Committee on the complexity of immigration law being a serious threat to the ability of lawyers and judges to apply it consistently were, in a way, reassuring to those of us who struggle with it, but otherwise not reassuring at all, as the noble Lord and my noble friend made clear in their speeches. I am very sorry to disappoint my noble friend by not wandering off into comments on case law. I support the amendment.