European Union: Justice and Home Affairs

Baroness Smith of Basildon Excerpts

Thursday 8th May 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I concur with the noble Lord, Lord Hannay, in welcoming this “double header” debate. It would have been nonsensical to have a debate on the fourth annual report and not look at it in the wider context of the government proposals we have already debated on the opt-out/opt-in in relation to crime and justice issues. However, I share with other noble Lords a sense of déjà vu in relation to the debate.

The noble Baroness, Lady Corston, was more generous in her comments and rightly referred to the comprehensive discussions that we have had. We were right to have those. We have had several debates, Statements and Questions on opting into EU justice and home affairs measures and on the Government’s proposals to opt out of all the EU measures on tackling crime, but then, as we have heard, seeking to opt back into some of them—around 35.

The noble Lords, Lord Judd and Lord Kennedy, said extremely appropriately that these issues strike at the very heart of what we value about our society because, as the noble Lord, Lord Judd, said, the Government’s first duty is to the safety and security of its citizens. The noble Lord, Lord Faulks, said that this is a complex issue. It is quite technical but it is also in this sense a very simple and straightforward issue: will the Government’s proposed opt-out make our citizens safer and more secure? Will it ensure that we can better and more effectively tackle crime? The comments of the noble Lord, Lord Dykes, about the law enforcement agencies’ concerns in this area contrast sharply with the rhetoric we heard from the noble Lord, Lord Pearson.

We have to recognise that modern crime respects no borders, whether it be drug trafficking, people trafficking, money-laundering, kidnap, abduction, cybercrime, paedophilia and, of course, terrorism and threats to national security. These crimes are all the more dangerous and more complex because they transcend borders and the fight against them has also to cross borders. The Government have to be honest and admit that, despite the political rhetoric, they also accept that principle. The fourth annual report on the application of Protocols 19 and 21 regarding opt-outs and opt-ins reinforces how integrated and connected the fight against crime is, and has to be.

At the same time as the Government are boasting about how many measures they are opting out of, this report highlights those that the Government have opted into. The noble Lord, Lord Faulks, said that of 21 proposals eight were rejected and the opt-in was not taken up, but 13 were accepted and opted into. Why is that? It is because in these cases the Government look into, and make an assessment of, the content of the proposal, as the noble Lord, Lord Faulks, confirmed. They consider the advantages and disadvantages and the benefits to the UK. Those are the right questions that should be asked in every single case. In three cases those issues were debated in your Lordships’ House in very useful debates. The Government put their case and we had the benefit of reports from our own EU committee. I well recall that in the case of the EPPO debate, the Government received broad support for their position. However, this fourth annual report has to be taken in the context of the wider debate on the Government’s proposals for opting out of all EU justice and home affairs measures—around 130—and then trying to opt back into 35, although that figure may change.

It has been disappointing that the public debate about these 130 measures has been of a different tone and character to the debate that we have had on the fourth report. To many of us, it seems that the public debate on these issues seeks to obscure rather than present the facts. Too often—we heard a taste of it today—the debate on anything European becomes one of those in which those with very strong views try to persuade everyone else that they should share those views. It has been interesting for those of us who have been speaking to people during the run-up to the European elections that many people readily admit to being totally confused by the political rhetoric that they hear on TV and on their doorsteps—the conflicting figures and facts that they are given. My impression is that what people really want are hard facts, accurate information and the space to be allowed to make up their own minds on the issues. In contrast, the debates in your Lordships’ House have been rooted in those facts and information, and could have been of enormous benefit to the Government in their examination of the issues. The reports of our EU Committee on the implications of the opt-out and opt back in again have been forensic, detailed and extremely valuable to our debates here and for wider consideration.

The noble Lord, Lord Pearson, made an unsurprising speech. I welcome him to today’s debate because he failed to take part in any of our other debates on these issues. I recommend those reports to him.

My noble friend Lady Corston illustrated the commitment of our EU Committee and the sub-committees to the effectiveness of their scrutiny role. I was concerned at the point she raised about the lack of co-operation from the Government, and I hope that the Minister can respond to and address those relevant concerns.

I hope that our debates have had an impact on the Government. The initial government statements and comments about the opt-out were not about the value of individual measures. They said that this was going to be a historic transfer of powers. The UK was going to be liberated from the shackles of EU regulation and bureaucracy. That is not quite right, is it? When a serious look is taken at the individual measures and at what really matters—the interests of UK citizens—the response becomes very different.

We have had so many debates that I am slightly losing track of how many we have had, but I have been asking similar questions and have failed to get clear, concise answers from the Dispatch Box from various Ministers. Today I shall try again. Today is slightly different because I can ask as well as answer the questions. The relevant question that has echoed throughout our debate relates to the impact assessment of the measures that the Government seek permanently to opt out of. I have asked these questions again and again. How many of the measures that the Government want to permanently opt out of are relevant to the UK and currently being used? Eventually we received some clarity. We now know that the Government want permanently to opt out of measures to tackle racism and homophobia; but we have domestic legislation that deals with that issue. We are not going to seek to opt back into a directory on international crime; but, again, it has not been published for the past two years. Much of this is a sleight of hand.

Looking at the various documents that we have had for some time, my understanding is that the measures that the Government are seeking permanently to opt out of are basically harmless and irrelevant. Some are out of date and no longer relevant. Some we have never used and do not have to use. Others are agreements to co-operate, and the Government intend that to continue. Some relate to minimum standards that we have already met or exceeded. There is a temporary system for dealing with counterfeit documents that has already been replaced. A bundle of measures applying to Portugal, Spain and Croatia do not even apply to the UK. We have not yet been told if any of the measures that the Government are seeking permanently to opt out of are harmful to the UK. That is why I endorse the calls made today for a proper impact assessment of not just those measures that the Government seek to opt back into but those that they seek permanently to opt out of. It seems to me that the Government are prepared to risk those measures that they even consider essential by being strong and bold in jettisoning the totally irrelevant.

The Minister may correct me but my understanding is that the Government are seeking to opt back in to 35 measures, and that number is likely to increase when the European Commission adds any necessary partner measures. Where measures are important—where they make a difference to people’s lives—we are going to seek to opt back in. I may be wrong and we are opting out of something hugely significant. If so, what is it? However, we are opting out of all measures without any guarantee of being able to opt back in, even to those that the Government admit they need. It is a gamble but I am prepared to accept that, following negotiations, there will be a process of some kind for opting back in.

The point made by my noble friend Lord Kennedy is very important. We are not clear about whether there will be any gap in application or implementation between opting out and opting back in. This is not a historical moment for the anti-EU members of the Government but it is an illustration of the weakness of a Government who feel that they have to pander to anti-EU rhetoric.

I want to be clear on two points. One is the principle of the opt-out. We negotiated it but we were also clear that we would not exercise the opt-out without guarantees regarding an opt-in, particularly regarding the European arrest warrant. I am fully aware of the concerns and issues regarding the arrest warrant and I welcome any improvements and positive changes to it. However, let us really understand why it is so very important that we retain that mechanism for police co-operation and intelligence-sharing across borders, and that we do whatever we can to ensure that those who are guilty of some of the most appalling and truly shocking crimes, such as abduction, rape, people trafficking and drug trafficking, can be caught and brought to justice.

There are numerous examples of the value of the European arrest warrant and I shared some of them with your Lordships in previous debates. It would have benefited greatly from the UK Government implementing the European supervision order to prevent British citizens being held in poor conditions in some foreign prisons while awaiting trial. No doubt other improvements could be made. However, I disagree most profoundly with the noble Lord, Lord Pearson, about the benefits of the arrest warrant. He said that he speaks for real people when he opposes the EAW. Perhaps I may quote from a real person. Beatrice Jones was the mother of Moira Jones, who was assaulted, abducted, savagely raped and murdered by an EU national. Beatrice Jones said:

“He fled the country but because of the dedication and determination of Strathclyde police along with the cooperation of Slovakian police, he was arrested and extradited back to this country ... EU police cooperation is essential for the safety of all”.

That comes from a family who directly benefited from the arrest warrant, and justice was brought because of the EAW.

[Lord Pearson of Rannoch]

My Lords, the noble Baroness tells us a heart-rending story but why could this criminal not have been returned to this country under normal extradition arrangements? Why do we need to give up our sovereignty in order to expedite this sort of thing? Why do we have to tolerate an Andrew Symeou case or any case involving a British citizen in order to achieve the result that the noble Baroness has just referred to?

[Baroness Smith of Basildon]

My Lords, changes could well be made, and I have already indicated one: this Government should have accepted the European supervision order. However, we are not ceding any sovereignty whatever by being able to go to another country to return criminals to the UK to face justice or by extraditing criminals to other countries to face justice there. That is not giving up sovereignty; it is bringing justice to those who deserve it. I am not prepared to say to a mother whose daughter has been murdered or raped that we will not continue with the European arrest warrant, which ensures that we are able to extradite criminals quickly. The noble Lord may be slightly older than me but I remember the days of the Costa del Crime, when this country struggled to extradite back to the UK criminals who had committed crimes and fled the country.

Real people want that protection and I welcome the fact that the Government have now made a U-turn and accepted that we need the European arrest warrant. However, we need assurances that they are not going to put public safety at risk through there being a gap between the opt-out and opting back in. The European arrest warrant is a legal framework and transition measures will have to be legally robust to ensure the satisfaction of the courts in dealing with extradition. Those arrangements have now expired so we need to ensure that there is no gap.

In conclusion, I am concerned about the whole process. Our EU Committee remains unconvinced by the Government’s arguments on the opt-out. Perhaps the most damning and worrying comments I have read in the whole of these debates are in paragraph 19 of the committee’s follow-up report, when it refers to the,

“lack of analytical rigour and clarity regarding evidence drawn upon”,

by the Government. That should give us all cause for concern.

Three Select Committees in the other place— the European scrutiny, home affairs and justice committees—have raised their concerns about the process in an unprecedented joint report. That echoes some of the questions that have been raised today. The Government need to respond to three key questions. Do they really need the re-opting list ready by June or next December? Is it on schedule to be ready? What arrangements have been made if agreement is not reached by that deadline? What are the transitional arrangements? It would be a tragedy for this country and for justice if the real things that matter to people in this country, such as the ability to tackle crime across borders, were sacrificed because of political rhetoric and campaigning against Europe.

[Lord Judd]

On the noble Baroness’s last point, should not the phrase about any gap be that it would be highly dangerous for the British people?

[Baroness Smith of Basildon]

It would be highly dangerous and I hope that the Government can say today that they are not prepared to put British citizens in that danger.

Immigration Bill

Baroness Smith of Basildon Excerpts

Tuesday 6th May 2014 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I am grateful to the noble Lord, Lord Avebury, for his explanation of his amendment. Immigration law is far more complicated than most people realise and he did a great service to the House in explaining his amendment, which of course we welcome and support.

Turning to Amendment 6 concerning the Long Title of the Bill, which the Government have amended, I share with your Lordships my confusion and hope that the Minister can give some clarification. I am grateful to the Minister for meeting me last week to discuss this and other issues. He gave me a letter explaining the amendments before us today, which was very helpful. But he also said about what was then Amendment 4 and is now Amendment 6 that,

“an amendment to the Long Title is necessary to ensure that it covers nationality matters”.

He then referred to the amendment moved by the noble Lord, Lord Avebury,

“with a view to appropriate amendments on the issue at Third Reading to create a new registration provision for persons born before 1 July 2006”.

However, he did not say that that was not the only amendment being made to the Long Title, because the amendment as printed—although not referred to in his letter—says that it also makes,

“provision about the removal of citizenship from persons whose conduct is seriously prejudicial to the United Kingdom’s vital interests”.

Yet when we debated that issue here in your Lordships’ House at both Committee and Report stages—they were very good and lengthy debates, unlike those which took place in the other place, which were rather cursory—it was decided, despite the length of the debate and the complexity of the issue, that an amendment to the Bill would be made removing the Government’s clause and inserting a new clause saying in effect that this was a complex matter which should go to a committee of both Houses. That amendment, in the name of the noble Lord, Lord Pannick, was passed by a majority of 62. Although that issue is not in the Bill, it is now in the Long Title.

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Perhaps I might now turn to the change to the Long Title of the Bill, under Amendment 6. Looking at the Bill, we still have deprivation as an issue under Clause 66. It is covered by that clause and it is quite proper that it should therefore be part and parcel of the Bill, but I will not suggest for one moment, while speaking at the Dispatch Box here today, what may be considered by the House of Commons when it takes on the amendments that we have made to the Bill. We have made a number of amendments and, as the noble Baroness will know, it is quite in order for the House of Commons to consider them and let us know what it thinks of the amendments that we have made.

[Baroness Smith of Basildon]

I am sure that, as a former Member of the other place, I was not suggesting for one second that it does not have the right to look at our amendments and come to its own decisions. This is about the contrast between the two issues. While I am happy to accept the explanation that deprivation will be considered further by a Joint Committee of both Houses once the Bill leaves your Lordships’ House, that contrasts with the issues of the trafficking of children and guardians for trafficked children. That provision was passed by your Lordships’ House and does not now appear in the Long Title, even though it has been amended to deal with something that is not in the Bill in the same way. It is just that contradiction between the two and I would hope that the Minister can reassure me that, since this House has committed to the guardians for trafficked children, the Government will also remain so and are not taking for granted the support from the other place on the issue of deprivation of citizenship and making people stateless.

[Lord Taylor of Holbeach]

It would not be in my nature to take anything for granted where Parliament is involved. However, I think I made the position of the Government quite clear on guardians for trafficking when the amendment was considered, and the noble Baroness herself has been well aware of that. I hope she will accept what I am saying. It will be a matter of our listening to the House of Commons, as we must now call the other place, and giving it an opportunity to present to us what it considers of our amendments. That is a reasonable position to take. Meanwhile, this change to the Long Title facilitates the adoption of my noble friend’s amendments, which I hope the House will support because they will be welcomed by many and assist individuals hitherto precluded from British citizenship by historical anomaly. They will therefore be able to register as British citizens if they wish to do so. I am extremely happy to be able to offer my support to my noble friend in this matter.

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[Lord Taylor of Holbeach]

That the Bill do now pass.

[Baroness Smith of Basildon]

I concur with the comments made by the Minister and respect those about this being a much improved Bill. That is accurate. We are pleased that the Bill has seen significant improvements, with amendments and concessions from the Government addressing issues raised by noble Lords. I was also pleased that he thanked the noble Earl, Lord Attlee, for his help and advice during the passage of the Bill.

I also thank the Minister. Where he has been unable to address issues from the Dispatch Box, he has been prepared to meet and discuss them, and to clarify those issues in writing. All noble Lords who have taken part in these debates have contributed to the improvement of the Bill, and we hope that some of those improvements will remain as debates continue. There are others that we would have liked to have seen and have not been able to achieve, but we still agree with the noble Lord that this is an improved Bill from that which presented itself to your Lordships’ House.

I add my thanks to colleagues, not only on the Labour Benches but across all Benches, who have put a lot of work into and contributed much to the Bill. I also thank the Bill team for its efforts and for being prepared to meet, and the Labour research team that helps us on our side of the House. It is no surprise that Sophie Davis, who has been advising the Labour Front Bench on this, was the Labour researcher of the year, which we all thought was very well deserved. We look forward to another Bill and another debate in the next Session.

Muslim Brotherhood

Baroness Smith of Basildon Excerpts

Tuesday 8th April 2014 Lords Chamber

[Lord Taylor of Holbeach]

I cannot agree with the noble Lord, although he speaks with a great deal of authority. He will know that Sir John Jenkins has been asked to lead the review because he is one of our most senior diplomats, with extensive knowledge of the Arab world, and his role is to serve Her Majesty’s Government. He was not chosen because of his current role as ambassador to Saudi Arabia. He is not working alone, and will draw on independent advice from other places.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister referred to a review, but the Prime Minister used the words “an investigation” or “an inquiry”, and there may be some difference. It would be helpful if we could have some information on that. Has he taken the opportunity to talk about this to the noble Baroness, Lady Warsi, who always impresses your Lordships’ House with her knowledge of such issues? A report in the Financial Times says that a senior government figure reported on “tensions” between the Foreign and Commonwealth Office and the Prime Minister’s Office on this, saying:

“This cuts against what the FCO has already been doing in this area, both domestically and in the Middle East. It risks turning supporters of a moderate, non-violent organisation that campaigns for democracy into radicals”.

Is there a tension at the heart of the Government, and is this a review or an investigation?

[Lord Taylor of Holbeach]

Not at all, my Lords. My noble friend and I are at one on the issue.

Immigration Bill

Baroness Smith of Basildon Excerpts

Monday 7th April 2014 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I declare an interest as a trustee of the think tank British Future and as a member of the Joint Committee on Human Rights. In the time that has been allowed to the Joint Committee to scrutinise this legislation and whatever mechanism your Lordships’ House chooses, whether it is post-legislative scrutiny or the Joint Committee option, there are three brief matters on which I would still like to hear the comments of my noble friend the Minister. I thank him for outlining the important duties, privileges and obligations that naturalised British citizens have. As an 18 year-old on a gap year, I took what was perhaps an unwise journey to northern areas of Ghana, which were known at that time for their instability, but I had most wisely packed my British passport. When civil disturbance arose, I literally clung to my British passport, knowing that of course the embassy would help to rescue me if I needed it. At that young age, I realised what a privilege it indeed was to have British citizenship and a passport.

I will outline those three brief matters. First, much mention has been made of the potential to undermine the position of the United Kingdom in relation to human rights laws on the international stage. It is important to give two current examples. In November 2012, 31 Bahraini citizens were deprived of their citizenship for “undermining state security”. When given the opportunity to sit in front of some Bahraini politicians, I outlined the position in relation to those cases, which arose in the context of civil protest. I was met with the retort, “Well, you do this too”. “Yes”, I said, “but we don’t do it to leave someone stateless”. The second example would be that there has been much mention in your Lordships’ House of the plight of the Rohingya Muslims in Burma, who do not enjoy citizenship. I therefore struggle to see how representations could be so forcefully made about them being entitled to citizenship if the Burmese Government are able to use similar language to that being outlined in the legislation.

Secondly, although it may well be that this clause does not place us in breach of our treaty obligations in international law, as I understand it neither would reintroducing the death penalty, yet moving to re-enact that is not a trajectory that many of your Lordships would wish to see. One of the circumstances that were not commented on in Committee in your Lordships’ House is this situation. If it seems that we can deprive people of their nationality while they are, for instance, in Syria and do not then have to readmit them to the UK, what would happen in the unfortunate situation of having people within our borders who have managed to get some kind of visa to be in this country and are perhaps unsavoury if their country of origin deprives them of their citizenship, so that we are left with a little oasis of stateless citizens in the UK? I am slightly too young to remember properly the tit-for-tat diplomatic spats of the Cold War, but is it really too much to imagine that there could be a tit-for-tat deprivation of the citizenship of people in different jurisdictions around the world?

Thirdly, I would like to outline the impact on the next generation, which has perhaps not been fully explored in relation to this new power. There are, of course, implications for the nationality and citizenship of the children of those who have been deprived of their citizenship. I am grateful to my noble friend the Minister for clarifying that the power will not apply, as I understand it, to people who acquire their citizenship by way of registration, who are often the children of someone who is naturalised—such people who are under 18 acquire their citizenship by registration. I would be grateful if my noble friend the Minister could outline the views of the Government about the effect on the next generation of children, who potentially have parents who are stripped of their nationality. This would make contact with that parent perhaps not impossible but significantly more difficult. Perhaps we might be at risk of sending a message to those children and perhaps having the same unfortunate effect as did certain of the powers that we used in Northern Ireland when we had a similar security situation.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been a powerful debate. I am speaking to the amendment that I have been pleased to sign, along with the noble Lords, Lord Pannick and Lord Macdonald, and the noble and learned Lord, Lord Brown. There is a sharp contrast with the time which was allowed to debate this issue in the other place.

I am grateful to the Minister for his comments at the beginning of the debate. I do not want to repeat the points which have been made, particularly those made more eloquently than I could do by those with legal expertise. I want to emphasise a number of points, particularly around the issue of scrutiny, which was referred to by the noble Lord, Lord Lester. This new government clause was introduced—with other amendments—in the other place just 24 hours prior to Report, all to be considered in a five-hour debate. It therefore did not receive the scrutiny that such a substantial and far-reaching clause needs and deserves. In the other place the Home Secretary admitted that,

“Members have not had as long to consider it as they would perhaps have wished”.

The Home Secretary claimed to have been “incredibly generous” in repeatedly giving way to respond to MPs’ concerns and questions, although I do not think that that was a particularly wise turn of phrase. As was made clear by my colleague in the other place, David Hanson, we were seeking to ensure that the consequences of such a significant clause had been properly thought through. The response from the Home Secretary was that the Government,

“recognise that there are consequences, and they have been considered”.—[Official Report, Commons, 30 Jan 2014; col. 1047-48.]

However, when we debated this in Committee, the responses from the Minister did not provide your Lordships’ House with the assurance that all the consequences had been considered. The noble Lord, Lord Sherbourne of Didsbury, partly quoted my comments in Committee, and I will reiterate the same point that everyone in your Lordships’ House wants to do everything possible to protect UK citizens from potential terrorist activity, both at home and abroad.

We also have to recognise that we have international obligations in this regard, as terrorism is a global threat. We all know that Clause 64 is a response to the Al-Jedda judgment by the Supreme Court, as was referred to by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. It was clarified that the Secretary of State could not withdraw citizenship from an individual if it would leave them stateless. Clause 64 seeks to remove that barrier, and would allow the state to make an individual stateless if they are naturalised British citizens and the Government consider that they are involved with actions prejudicial to the interests of the UK. That would mean that either the former citizen remains locked in the UK, unable to leave, work or receive any support, but the Government still have obligations to that individual, or that they would be left stateless in another country and obviously not able to return.

When bringing forward such an exceptional power as this, the Government have a duty to consider the wider implications and the impact it will have. We understand that actions to tackle a threat to national or international security do at times curtail the freedom of an individual, but when such a measure is proposed it must be fully and properly considered. The process, the impact and the implications must all be fully thought through and understood.

The noble Lord, Lord Taylor, recognised the seriousness of this issue when we debated it in Committee. He said that it was right that we should have a thorough debate on the issue, after it was introduced at such a late stage and almost slipped in at the last minute in the Commons. However, the noble Lord has rejected the proposal in our amendment before the House today for scrutiny by a Joint Committee of both Houses, a dedicated committee to examine this in detail. He said that it should be debated during the passage of a Bill in your Lordships’ House.

For a debate to be effective, there must be answers to the questions raised. We are not a debating society. As the Minister has in effect acknowledged, our role in Parliament is to scrutinise and, if necessary, revise legislation. The noble Lord, Lord Lester, said in his comments that it was a complex issue. In Committee I and other noble Lords asked a number of questions in an attempt to understand how this clause would operate in practice and the impact on the individual, on public safety and on national and international security. To be effective in that scrutiny—the very scrutiny to which the noble Lord referred when introducing his amendment and rejecting our amendment—the Government must address the points we made, and answer the questions. On this very far-reaching clause, they have failed to do so.

In Committee we sought to understand the process and the full implications. What would the process be for making an order under the clause, and what would “seriously prejudicial” mean? What criteria would be considered by the Secretary of State, and what would be the process by which she would make her decision? I raised the specific case of Y1 with the Minister. In that case it appeared that the Home Secretary did not agree with the professional advice of the security services, following discussions with Cabinet members. I was not suggesting that that was necessarily wrong, but I wanted to understand if decisions could be made on political grounds. I did not receive much clarity on these points, but the Minister replied that this would affect only a small number of individuals. I have never considered that a few people being affected by a power makes it less important to consider the implications.

The Bureau of Investigative Journalism has identified 15 cases, to which the noble Baroness, Lady Hamwee, also referred, in which the person was overseas at the time. It has also shown that the use of that power gradually increased under this Government, from roughly one case each year in 2010 to eight in 2013. However, when asked for more precise information—for example, on how many of the individuals whose citizenship was removed were in the UK and how many were outside the UK at the time the decision was made—the Minister refused to give us more detail on the grounds of national security. I am not sure that I fully understand why giving the numbers involved, rather than specific information, is a danger to national security.

The Government have clarified that this new power could be used against people whether or not they are in the country, and whether or not they can acquire another nationality. They have stated that they would expect those who can acquire another nationality to seek to do so, but have no answers on what happens if that fails. There remains a lack of clarity on what happens to people who have their citizenship removed while they are in the country. This is an important point, as this clause is designed to deal with those whose activities are of concern, and indeed those who may be a danger.

Mr James Brokenshire, the new Immigration Minister, said that in the event of a person remaining in the UK they could be granted limited leave, “possibly” with conditions, and the UK would have certain legal international obligations under the UN convention. He expanded on that in a letter to the Constitution Committee, in which he wrote:

“For those living in the UK, we may grant another form of immigration leave, depending on the person’s circumstances … Crucially this will not attract all the privileges associated with being a British citizen; they would not be entitled to hold a British passport, to vote or to have full access to public services”.

The Minister confirmed this in writing to us after the debate. He also added that, in certain circumstances when the person cannot return to their country of origin, “it may be necessary” to provide them with exceptional leave to remain of some kind or another. Does this mean therefore that people would be trapped here, and we would not be able to deport them but would still have obligations towards them? How does that help to ensure that national security is protected?

What happens if someone is in another state when the decision is taken? What happens if they cannot be contacted? The Minister said that they would have the full right of appeal, but they cannot have this if they cannot be contacted. How can someone be notified in such circumstances, or avail themselves of any review of the decision? What about children who may be left behind? What will be the obligations of the state these children are in when their parent is made stateless? What will be the obligations of the state in which the person is made stateless?

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[Lord Taylor of Holbeach]

My Lords, I am sorry that the noble Baroness feels that my responses have been inadequate. It is a matter of pride that I have sought to answer noble Lords’ queries during the passage of this Bill. The noble Baroness has never implied that anything I have supplied her with has been inadequate, and I am sorry if she has taken that view.

[Baroness Smith of Basildon]

At all times the Minister has sought to be courteous and to give as much information as possible. However, he will recall that in Committee I asked questions and he apologised for not having available some of the information needed to answer them. It is no slight on him personally; he has made a great effort to try to answer. It is just that there have not been answers to some of the questions I have asked.

[Lord Taylor of Holbeach]

I have written a report on every day of this Bill, and I will be writing about today’s debate to tell all noble Lords of those things that have arisen where I am not in a position to give an answer. The noble Baroness is very generous. Indeed I do my best but there is a limited amount of time and I do not want to take up too much time on an issue that noble Lords have debated with great skill for the elucidation of the House.

As I made clear in my earlier intervention, this is an important and sensitive issue that goes to the heart of ensuring that the Home Secretary has available to her the necessary powers to respond to changes and threats to our national security. Amendments 56ZA and 56ZB were discussed in Committee, and I can assure the House that this power was drafted taking full account of the need to ensure consistency with our international obligations. The Home Secretary will personally review every case and in doing so will of course consider, in line with our obligations under the ECHR, whether deprivation is a necessary and proportionate action in response to the conduct of the individual and the threat that they pose to the UK. I hope noble Lords will be reassured by our proposal for a statutory independent review that will be able to look at these matters as part of its scrutiny of the operation of this power.

The noble Baroness, Lady Lister, asked a number of questions. She asked whether the independent reviewer would have access to information on whether the deprivation action was taken while the person was in the UK or abroad. The independent reviewer will be provided with information on all aspects of the operation of the power, including the circumstances—

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[Lord Taylor of Holbeach]

My Lords, if the Opposition were prepared to accept Amendment 56A, I should be prepared to move it.

[Baroness Smith of Basildon]

My Lords, I am not sure whether the noble Lord has moved his amendment formally but, as the matter has been referred to a committee, should this not also be referred to a committee? It would seem more sensible to us that, if a committee were discussing something, it would then decide the nature of any review that would take place after implementation.

[Lord Taylor of Holbeach]

The point that I was trying to make was that, if this were to form part of the substantive Bill, it would be possible for it to be considered as part of the Government’s proposals in this respect. I do not want the House to have another vote on the issue, but I feel that this is not in conflict with the amendment successfully moved by the noble Lord, Lord Pannick. However, I am told from the Box that there is no need for Amendment 56A, so I will not move it.

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[Baroness Smith of Basildon]

My Lords, I have very little to say on this, as it is not something on which I have a great deal of knowledge. The issue would have benefited from debate in Committee. I understand why the noble Lord did not bring the amendment forward in Committee, although I think he probably wishes that he had done so. We would have welcomed a debate on it. I know of the noble Lord’s persistence on issues. He and I have discussed issues such as litter previously and I look forward to him coming back to that matter as well.

However, I would be interested to hear the Minister’s views on this. From what the noble Lord, Lord Marlesford, has said, he expected this issue to be in the Bill. I think he thought it was agreed that it would be included in the Bill but it is not. I hope that the Minister can enlighten us on that, on whether the issue is being considered by the Government and on their reasoning in relation to it. That would be extremely helpful for this debate.

Immigration Bill

Baroness Smith of Basildon Excerpts

Thursday 3rd April 2014 Lords Chamber

[The Earl of Sandwich (CB)]

My Lords, I congratulate my noble friend on speaking so powerfully on behalf of a vulnerable group. This is an important amendment. I spoke on this issue at Second Reading and I am sorry to have missed the Committee stage, when I think the noble Earl, Lord Howe, gave another response, but I am still not satisfied that the Government have taken a serious interest in this. When I spoke at Second Reading the report of Médecins du Monde seemed to me very compelling. Has the Minister seen it? The noble Baroness quoted several authorities and I will not repeat them but I think this has serious consequences, not only for that group but for the population at large, especially in the field of mental health.

[Baroness Smith of Basildon (Lab)]

My Lords, briefly, when we look at the Second Reading and Committee debates, one area of the Bill where there has been the least clarity for noble Lords is in trying to understand the implications beyond what are now Clauses 37 and 38. It is not necessarily the words of the clauses but some of the rhetoric that the Government have used in describing the Bill, such as “health tourism”. I know that there are expectations of what this Bill was going to do and concerns about the implications. I think there is an opportunity for the noble Lord. The noble Baroness, Lady Masham, is to be congratulated on bringing this forward to give some clarity to what is involved. I have had several e-mails and letters from organisations that are extremely concerned. They are not trying to scaremonger; they are trying to understand the public health implications.

In a meeting I had with noble Lord, he was very helpful in explaining that he did not feel that there would be any public health implications and that people who needed treatment would receive it at the point at which they needed it. However, I think a little clarity would be helpful. The two issues of the public health of the nation and cost-effectiveness have exercised your Lordships in looking at this matter. If the Minister can bring some clarity to the two issues raised by the noble Baroness, Lady Masham, it would be extremely helpful and perhaps helpful to the wider audience outside your Lordships’ House, who have genuine concerns and are trying to ensure that they operate in the best interests of public health and within the law. There is considerable confusion as to what that will be.

Immigration Bill

Baroness Smith of Basildon Excerpts

Tuesday 1st April 2014 Lords Chamber

[Baroness Hamwee]

My Lords, when I raised issues about bail and mental health in detention at the previous stage, the Minister gave me assurances about the Home Office policy presumption in favour of release or temporary admission—a “presumption of liberty”, so called. He said:

“Wherever possible, alternatives to detention are used. Detention must be used sparingly and for the shortest period necessary”.—[Official Report, 3/3/14; col. 1163.]

As this is a more focused debate than in Committee, when we had, I think, six amendments and the Minister had to cover a lot of ground, perhaps I may ask him some questions of which he is aware.

Can the Minister expand on the criteria applied for detention or conversely release, and say something about Home Office guidance and case law? The issue of the periods applied by other EU member states has also been raised. Like the noble Lord, Lord Bourne of Aberystwyth, I am curious not just about the periods but the legal systems within which those periods sit and how other countries deal with the “abscond” risk. Although I suspect not, does the Home Office have any profile of those who are detained for more than the 28 days that we discussed previously and the more than 60 days we are considering now?

Finally, I cannot resist sharing with your Lordships a case study from the Movement Against Xenophobia, which is one of the many very helpful briefings that we have received. It refers to a man who had been born in the Ukraine and had moved to Poland. He was unable to get a passport and bought a false passport. He was picked up and imprisoned. One might say, “Fair enough”. After his imprisonment, he was held in detention. Post the imprisonment sentence, the detention was 18 months. Eventually, he was successful in challenging that. The irony is that he was trying to leave the UK when he was picked up.

[Baroness Smith of Basildon (Lab)]

My Lords, we have heard some extremely powerful speeches in today's debate, especially on the concerns about overlong detention. Some of the individual cases that we have heard about strike the humanity of all noble Lords—to take a phrase from my noble friend Lord Judd. We certainly understand the reasons for the amendment and agree that it should always be the objective to reduce the length of time that any individual is in detention. I would hope that in the vast majority of cases it is possible to deal quickly with the process for individuals or find alternatives to detention. As we have heard, that is in the interests of the individuals detained—we have heard that there are 30,000 detainees each year—and in the interests of the taxpayer.

The comments of the noble Lord, Lord Ramsbotham, and my noble friends Lord Judd and Lady Lister, led to a greater concern about the regime of detention centres and the way in which rules are enforced. We agree that immigration rules must always be enforced, but the responsibility of government is to ensure that all detainees are treated humanely, with high standards and safeguards in place. As this amendment seeks to draw attention to, the process of administrating and assessing claims or arranging deportation should be undertaken as quickly and as fairly as possible.

Long delays and long periods of detention bring with them other problems. I am sure that the Minister is aware of the research undertaken by Women for Refugee Women which illustrates concerns about access to healthcare and support for physical and mental health. Only this week, we heard the extremely sad and distressing account of a woman of 40 who died at Yarl’s Wood detention centre. I was pleased that yesterday the Minister announced an investigation and review into that sad and tragic death.

Will the Minister also confirm that there will be a full investigation into the reports of sexual abuse of vulnerable women at Yarl’s Wood by Serco employees? What action has been taken as a result of the report of the inspector who said that abused and trafficked women are being held at Yarl’s Wood? The chairman of the Home Affairs Select Committee in the other place said yesterday that Serco has confirmed to him that in the past few years seven employees had been dismissed for inappropriate behaviour. The Minister will also be aware that there are ongoing police investigations and criminal proceedings, although Nick Hardwick, in his most recent inspection report, said that—I paraphrase—good progress was being made but more needs to be done. There are real concerns that have been illustrated across the House today.

However, that is not the amendment before us today. This is specifically about the length of time an individual can be held, and we heard examples of overlong detention from the noble Baroness, Lady Williams, and the noble and learned Lord, Lord Lloyd. My concern about the amendment is that it is slightly clumsily worded and does not necessarily achieve what it sets out to do. It has an arbitrary time limit of 60 days. Within that, there is no risk assessment of the issues of whether or not someone is likely to abscond or any assessment of the reasons for the delay.

More importantly, and this gives us the most concern, foreign criminals who have completed their sentences may be detained while they await deportation. That may take a little longer than 60 days to resolve—to get all the paperwork in place, ensure that they are treated properly and make an assessment of where they can be deported to. We would then be faced with the prospect of releasing those who do not have a legal right to be in the UK and who have become convicted offenders who have received a custodial sentence. That could lead to complications in the paperwork or the complex nature of the deportation. If the amendment were passed today as it stands, we could have a difficulty with former offenders who have been held in detention prior to deportation.

Unless I have missed something, there is no process in the amendment to allow for any extension in any circumstances, whether for a genuine risk of absconding or because of deportation for previous criminal offences. There is no qualification at all in the amendment as it stands. Having said that, I think it was my noble friend Lord Judd who used a phrase—which is well worth this House returning to on a number of occasions—about the humanity and the principle of the issue. The noble Lord, Lord Ramsbotham, referred to the amendment being a “stimulus”, because the Government should be aiming to achieve far shorter detention periods.

I fully appreciate that this amendment could focus the Government’s attention on being far more efficient in dealing with cases but there is a risk here, as I have outlined, and I am not convinced that the Government would necessarily take note in that way. I would like to hear some assurances from the Minister that action will be taken to deal with any abuses of the rules and regime in any detention centre. I hope that he will not dismiss the objectives of the amendment before us today because, whatever flaws there may be in the detail, this amendment raises issues of serious concern across your Lordships’ House, as he has heard, that have to be addressed. Although we cannot support this amendment as it stands, we would hope for a very sympathetic and helpful response from the Minister.

[Lord Taylor of Holbeach]

My Lords, I am very grateful to the noble Baroness for that contribution. I think she recognises the burdens on the Government in dealing with this matter. I also say to her that, clearly, if there is evidence of wrong-doing at a detention centre, it will be investigated. However, I would like to write to the noble Baroness in more detail on that because I cannot address from the Dispatch Box the particular issues that she raises.

However, as to the general principle, we have had a really good debate today on detention. The truth of the matter is that no Government want to detain people more than they have to. I think the figure was quoted of £36,000 per annum for each detainee, which is enough incentive for any Government, not just on humanitarian grounds but on hard-nosed business terms. We do not want people detained, but these are difficult issues and we have vested, quite rightly in my view, the determination of these matters in the courts. It is the courts that determine the period of detention. Although the noble and learned Lord, Lord Lloyd of Berwick, has talked about the legal background to these issues, this is a case where that balance between the Executive and the court system determines outcomes.

I will now try to address the issues in the amendment, which my noble friend Lady Williams characteristically presented with the passion that has driven her through a most distinguished political career. Amendment 9 would require the release of any individual in immigration detention subject to a removal decision after 60 days’ detention, no matter how imminent their removal was. Removal might be due after 62, 64 or 70 days, but 60 days would be the effective limit. There is an absconding risk in that, which I think noble Lords will recognise. Having a finite limit would give people an incentive not to co-operate with removal. Much of what we have been discussing here has been discussed in very high-minded terms, but there are people in detention who will do everything that they can to ensure that they are not removed. If an individual refused to co-operate with arrangements for their removal—for example, in obtaining a travel document, which requires the co-operation of the detainee—they would be able to benefit from their non-compliance when making a bail application after 60 days of detention, even if the sole reason for their detention and for their not being removed was their lack of compliance. Even if a limit were to be imposed, 60 days is not the right limit, and I hope I can convince noble Lords of that. The Government’s view is that it is not appropriate to legislate to set a time limit for immigration detention.

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[Lord Hope of Craighead]

The reason why I suggested the word “previously” is because that is in new subsection (6) and would link in new subsection (5) with new subsection (6) to show that what one is talking about is exactly the kind of matter being referred to in the definition in new subsection (6).

[Baroness Smith of Basildon]

My Lords, I rise briefly to comment that the noble Baroness, Lady Berridge, has done a service to your Lordships’ House because she has given the Minister the opportunity to think again and to take advice from some of the best legal minds that the country has. I hope that he will take that opportunity.

I am not a lawyer, but one thing that strikes me is the issue of fairness. The noble Baroness, Lady Berridge, raised the point when she used a football analogy—not something that I would normally do in any event whatever. My noble friend Lord Bach laughs, because he knows my loathing of the obsession with football. But the idea that the scope of the tribunal’s jurisdiction should depend on the consent of one of the parties to the appeal is something that offends a great many noble Lords and their sense of justice and fairness.

My only question to the noble Baroness, which I asked her when I saw that she had raised this matter, was whether the Government had ever raised any concerns and whether this proposal would make it more difficult for them, given their problems in deporting foreign criminals. She was able to assure me that it has never been raised by the Government as causing any concern whatever. I think that the Minister should take the opportunity that has been presented to look at this again. The noble Baroness says that the amendment is not perfect, but it does not need to be perfect to take it away and give some further consideration to what has given a lot of concern to noble Lords across the House.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I am grateful to my noble friend Lady Berridge for introducing this amendment, which, as the noble Baroness, Lady Smith, said, has given rise to many learned contributions in the course of debate. As has been indicated, the amendment would place the tribunal in a position of the primary decision-maker; it would allow matters to be considered and decided by the tribunal without the Secretary of State having considered and decided them.

The tribunal exists to consider appeals against the refusal of an application by the Secretary of State. That is why the Bill provides that the tribunal may not consider matters that have not first been considered by the Secretary of State unless the Secretary of State consents to it doing so. Picking up the point made by the noble and learned Lord, Lord Woolf, nothing in the proposal in any way reflects on the work that has been done by the tribunal. Indeed, the point he made from experience about it being more appropriate than the cases that went to court is in no way a reflection on the tribunal.

The Joint Committee on Human Rights stated in its report that the provision relating to the Secretary of State’s consent may not be compatible with the principles of equality of arms, right of access to a court and the separation of powers because it allows one of the parties to an appeal, the Secretary of State, to determine the scope of the tribunal’s jurisdiction. Of course, ultimately Parliament sets the jurisdiction of the parameters within which the tribunal will operate.

However, the principal reason why the Government have proposed this measure is that we do not believe it is right for the tribunal to be the primary decision-maker. I certainly will reflect on the points made on that principle. I noted that the noble and learned Lord, Lord Woolf, said that it was more practical for the tribunal to deal with this matter although, technically, the decision-making body was the Secretary of State. I think that my noble and learned friend Lord Mackay of Clashfern made the point that the primary decision-maker in these matters is the Secretary of State. Therefore, I do not think it is such a clear question of principle as perhaps has been suggested. The noble and learned Lord, Lord Woolf, maintained that there were compelling practical reasons. However, the primary decision-maker is, indeed, the Secretary of State. The role of the Secretary of State—

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Moved by

[Baroness Smith of Basildon]

11: Clause 15, leave out Clause 15

[Baroness Smith of Basildon]

My Lords, we now return to what many consider one of the most controversial clauses in the Bill. Noble Lords will recall that we had a number of debates on this clause in Committee. We raised our concerns about the principle of removing the right to appeal against an application to refuse a visa. We saw that against the backdrop of what appears to be poor-quality decision-making, when so many appeals succeed.

In the debate last week on the Question for Short Debate introduced by the noble Lord, Lord Steel, the noble Earl, Lord Attlee, referred to the decision-making process as a matter of judgment and said that when a tribunal overturns an original decision by a caseworker that does not mean the original decision is wrong, merely that a different judgment has been made. He was very clear that these are balanced judgments. The noble Lord, Lord Steel, made a helpful point that, on the issue of judgment, the caseworker should be able to go back to the sponsors of an application to double-check its veracity. The noble Earl, Lord Attlee, agreed to write to us on that and I look forward to receiving his reply. The point made by the noble Lord, Lord Steel, contributes to our discussions today. Despite the Minister’s best efforts, both in your Lordships’ House and in writing, and the generosity with their time of the noble Lord, Lord Taylor, and the noble Earl, Lord Attlee, in meeting to discuss this and other issues, he has failed to convince us of the need to remove the right of appeal and replace it with an internal, administrative review. We remain of the view that the efforts and resources would be better employed ensuring accurate, timely initial decisions.

We remain deeply concerned about the clause and have therefore retabled our amendment to delete it from the Bill. We have also tabled Amendment 13 to ensure that appeal rights cannot be abolished until the quality of Home Office decision-making for managed migration is deemed, by the Independent Chief Inspector of Borders and Immigration and the Secretary of State, to be efficient, effective and fair. This reinforces my previous point about our priority being the quality and accuracy of judgment on initial decisions.

As your Lordships will know, only three types of decision will remain appealable under this clause: a decision to refuse a claim of asylum or humanitarian protection; a decision to refuse a human rights claim; or a decision to revoke asylum or humanitarian protection. A decision by the Home Office to refuse an application which does not involve one of these claims but is made, for example, on erroneous grounds or without reference to highly relevant information, could not be challenged before a tribunal. That even includes a simple mistake being made or not including a document that should have been included. As noble Lords who have been through this process with anybody or advised them on it will know, it is sometimes very difficult to know all the documents that should be included. Instead, the Government plan to set up an administrative review system which will provide a proportionate and less costly mechanism for resolving caseworking errors. We obviously support a process that gives timely, accurate decisions with a facility to swiftly address any errors. However, taken in context, this clause does not do that.

In Committee, we heard about the impact that the clause might have on students, undermining our attractiveness to the best students in the world. We heard about the impact that it would have on children, and noble Lords will also be aware of its impact on businesses. Organisations representing students’ best interests and student bodies fully support Amendment 11 as the preferred way of dealing with this. This may offer reassurance to the noble Lords who have spoken specifically about students.

The system that provides for appeals is even more essential, given that we know how flawed the current system is: the balance of judgment referred to by the noble Earl, Lord Attlee. It is well documented that the department is already struggling to deliver a high-quality service and there are huge casework backlogs. In Committee, I provided some shocking statistics to show how serious the situation is. I do not intend to repeat those today but it is clear from the evidence that there are huge pressures on the service and on those whose job it is to clear the backlog and assess new applications. Yet the Government now propose a new administrative review system with no additional staff. We should not be surprised, or allocate blame to individuals working under such pressure, that so many decisions are overturned on appeal. The latest statistics that I have seen show that 32% of deportation decisions, 49% of managed migration appeals—that is, work and student appeals—and 49% of entry clearance applications were successfully appealed last year.

Although the department had no statistics on why those appeals were granted, since then it has, rightly, undertaken an exercise looking at a sample of 2% of cases, which showed that 60% of appeals allowed are due to casework errors. Extrapolating that figure indicates that almost a third of all appeals allowed are due to casework errors. In Committee, the noble and learned Lord, Lord Wallace, said that these figures had to be looked at,

“from the perspective of the end-to-end immigration system”,

and that the majority of applications are successful. What he meant was that the majority of applications are not appealed against.

However, what matters here is the principle. When so many decisions are found to be flawed and when even the Minister acknowledges, as he puts it,

“historic problems with decision quality”—[Official Report, 3/3/14; col. 1195.]—

should we really be trying to remove the current system of appeals and replace it with administrative reviews? I have said before, and I think it still holds, that it cannot be right that the Home Office’s response to its own inefficiency is simply to stop people challenging that inefficiency. I come back to my earlier point, which makes all the more sense to us: the Government should be focusing on improving the efficiency of those initial decisions and making sure that there is little need for appeals in the first place.

As evidence of the appropriateness of the new system of administrative appeals, the Government rely on its use overseas by people who are refused entry clearance. However, as the Government themselves have admitted, not only are these very different decisions with fewer grounds—and so, it is hoped, with fewer mistakes made—but just 21% of original decisions are overturned in that process against the 50% of appeals granted under the current system. Therefore, given the difference in the types of decisions and the fact that less than half the number of overseas administrative reviews are successful compared with appeals, I am not convinced that the Government’s reliance on that as evidence for making the change is sound.

The Government have said time and again that the person reviewing the decision will not be the person making the original decision, but the reviewers will still be a cohort of immigration staff drawn from the initial decision-makers, so it is not an independent process.

In his response to me in Committee, the noble and learned Lord, Lord Wallace, insisted that the administrative review process will be quicker and less costly. He said:

“Immigration judges at the tribunal will no longer need to consider caseworking errors. Applicants will have those errors considered faster and more cheaply, and those types of case will be removed from the tribunal system, which will reduce overall expense”.—[Official Report, 3/3/14;. col. 1191.]

That is all very well: who would not want a system that is simple, fast and cheaper? However, do we not also want one that is accurate? If mistakes are being made one way, with people being denied visas when they should have received them, can we be certain that no mistakes are being made in the other direction—that is, people being granted visas when they should not be? People are certainly not going to appeal against that. Therefore, we need a system that gets it right.

I think that our comments and concerns have been taken on board to some extent, particularly with regard to the lack of oversight. The noble and learned Lord, Lord Wallace, quoted the statement of intent in relation to the Bill, saying:

“‘Within a year of the … review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan’”—[Official Report, 3/3/14; col. 1196.]—

and that the chief inspector could have the power to undertake an inspection off his own bat. A government amendment was tabled to that effect, and another not dissimilar amendment will be coming soon from the noble Baroness, Lady Hamwee. However, that remains after the event. Why not have a review first to see where improvements can be made? Alternatively, we can monitor those improvements before forging ahead and adding another layer of chaos to an already overstretched service.

The Government have also relied on the availability of judicial review as a recourse, despite the change that they are making to judicial review and despite the fact that the impact assessment could not make a proper assessment of the cost. However, this process has the potential to be far more expensive, despite the noble and learned Lord’s comments about it being cheaper and quicker. The Government’s own assessment shows that an extra 5,600 reviews and up to 1,000 judicial reviews could be granted. That would cost more than appeals, and costs can be sought from the other party and damages may be claimed.

The noble and learned Lord, Lord Wallace, said on a number of occasions in our previous debate that he understood the concerns in relation to the clause and he understood the reservations that were expressed about decision-making in immigration cases. Despite that, the Government are still ploughing ahead with a radical reform. We have not seen the evidence for this clause and we do not believe that the evidence is there. It is ill thought-out and unfair, and I hope that, even at this late stage, the Government will be prepared to consider the points that have been made throughout the passage of the Bill. I hope that the Minister can give greater reassurances on this issue than he has been able to provide so far. I beg to move.

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[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for his full explanation. He is right: there has been some movement to address the concerns that we raised in Committee, and I welcome the Government’s new clause. I must admit that he has gone further tonight than I thought when I read the new clause when he said in response to the noble Baroness that the chief inspector would look at the substantive issues and not just those such as the effectiveness mentioned in the amendment. That is certainly welcome. I wonder whether the inspector will be able to deal with possibly thousands of cases every year.

Although the Minister says that the majority of applications are successful, it remains that a third of all appeals succeed due to casework errors. I take his point about speed. It seems that the Government are more concerned with the cost and speed of decision-making than with accuracy and fairness. I would point to the system at the Department for Work and Pensions, where there is a process for administrative review but that does not prevent an appeal taking place as well if that remains the decision of the person who was refused. I have already said that I think the Government’s reliance on the overseas system of administrative review is flawed for a number of reasons. I am also surprised that the Minister seems to be at odds with the noble Earl, Lord Attlee, who referred to case working decisions being a judgment decision on a balanced decision, yet the Minister referred to it as following rules. We seem to be being informed about two different systems.

As much as I welcome the comments that the Minister has made—and I am grateful to the noble Lord, Lord Pannick, the noble Earl, Lord Clancarty, and the right reverend Prelate the Bishop of Leicester, who is unable to be with this us at the moment—I feel that the Minister has not really addressed the reasons why the Government are removing a fundamental right of appeal for judicial review. The explanation and the evidence were not there and I feel that I have to test the opinion of the House on this issue.

Metropolitan Police

Baroness Smith of Basildon Excerpts

Thursday 27th March 2014 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, it might help the noble Lord if I just say that I have made it quite clear that we recognise the sense of duty with which our police officers undertake their tasks, and indeed our confidence in the Commissioner of the Metropolitan Police.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for the content and tone of his answers. The further revelations published in the Independent newspaper today of a secret investigation into persistent corrupt networks within the Metropolitan Police are really beyond shocking. I am grateful to the Minister for his answers today, but can he tell us what action the Government will be taking in regard to these allegations as well?

[Lord Taylor of Holbeach]

I think the noble Baroness is referring to Operation Zloty and the discovery that some of the material that we were hoping to be able to use to investigate further may have been destroyed. There is a determination among everyone who is currently engaged in this matter to get to the bottom of it and to get to the truth. I am confident that we will achieve that. It may take time and there may be obstacles in our path but we are determined that the truth should be known. Indeed, by finding the truth, we will also help the police themselves regain that confidence that they should surely have about the way that they protect us.

Licensing Act 2003 (Mandatory Licensing Conditions) Order 2014

Baroness Smith of Basildon Excerpts

Tuesday 25th March 2014 Lords Chamber

Moved by

[Baroness Smith of Basildon]

As an amendment to the above motion, at end to insert “but regrets that Her Majesty’s Government have failed to demonstrate a coherent link between the permitted price policy and the evidence quoted in the Impact Assessment and Explanatory Memorandum, meaning their claims are completely speculative; and further notes that the Secondary Legislation Scrutiny Committee in its 35th Report (HL Paper 149) again criticises Her Majesty’s Government for failing to make the policy link as asked by the Committee in its 32nd Report (HL Paper 137).”

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for his explanation, and for his comments on the report of the Secondary Legislation Scrutiny Committee. I beg to move my Motion of Regret, which reads as an amendment to the Motion moved by the noble Lord.

I seek clarity from the Minister on the evidence he has produced and the information presented to your Lordships’ House in the Explanatory Memorandum and in the impact assessment. It seems to be a regular theme when looking at Home Office legislation—I feel that I come back to these three points again and again—that we need to probe further to understand: the evidence base for the measures brought before us; how those measures will work in practice and the impact they will have. That is, whether the measure can achieve the objective the Government state and any unintended consequences, such as whether groups or individuals other than those whom the policy targets are affected and whether that is reasonable. I have tabled this amendment to the Motion today because of the lack of clarity on these points in the order before us.

Most noble Lords would agree that alcohol can be both a pleasure and a pain. The vast majority of those who enjoy a beer or a glass of wine—or something stronger—do so responsibly, without causing any significant harm to themselves or others, and do not cause any disruption or drain on public services. However, we are also aware of those who, because of the amount of alcohol they consume, cause significant harm to themselves, and harm and disruption to others. That can be a considerable drain on public services, to the detriment of others. The challenge is to effect such change that will impact on the behaviour of those who have and cause significant problems, without unfairly impacting on responsible drinkers. The question for your Lordships’ House is whether the order before us today achieves those objectives.

I found the Secondary Legislation Scrutiny Committee’s 32nd report, and the 35th report with the publication of the correspondence from the Minister, Norman Baker, very helpful, and I was glad that the noble Lord referred to them briefly in this comments. The committee has proved—I have tried to follow this in reading the papers myself—the discrepancies and the contradictory information supplied by the Government in evidence for the policy. I am particularly grateful to the committee for its scrutiny, and I always find its reports particularly helpful and invaluable to your Lordships’ House.

After the committee’s initial scrutiny, the Government withdrew their original Explanatory Memorandum that claimed that the benefit to the public sector was £17 million a year from this policy and replaced it with the significantly more modest claim of less than £1 million —and I have to say that the evidence base for that £1 million remains a bit woolly. The 35th report published correspondence with the Minister, Norman Baker, with the initial questions and concerns of the committee. Having read the order, the Explanatory Memorandum, the impact assessment and the committee’s reports, I had anticipated a fuller response from Norman Baker. I share the concerns that the committee expressed in its 35th report, when it said:

“We found the letter to be no more convincing on the merits of this policy than the Explanatory Memorandum. The House may wish to press the Minister to explain the policy of the instrument more clearly in debate”.

That is the challenge for the Minister this evening: to explain that and to assist your Lordships’ House in understanding the rationale and impact of this, as well as bringing clarity to the evidence on the impact.

I am going to refer to parts of the Explanatory Memorandum and impact assessment as I make my comments. Page 2 of the impact assessment provides the Government’s assessment of the economic benefits of this policy. It identifies a best-estimate annual cost of £5.3 million and £9.5 million of benefits, giving a net annual benefit of £4.2 million. I am still a little puzzled by the figures. If the Minister has the impact assessment in front of him, he will see that the calculations of the costs in the figures include only two of the four costs listed; it does not include the cost to retailers. It says:

“There will be transition costs as retailers familiarise themselves with the policy … This is estimated to be a one-off total cost of £4.1m”.

Neither does it include,

“transition costs to the licensing authorities to familiarise themselves with the policy and inform alcohol retailers, estimated at £0.2m”.

Those costs do not seem to be included in the £5.3 million that the Government give as their best estimate of annual costs. But those are costs that the Government say will arise.

When we look to non-monetised costs and benefits, we see that there is more certainty around the costs than there is around the benefits, where it says:

“There may be a benefit to business if consumers”,

do such and such, such as “switch their expenditure”. So there is much more clarity about the costs than there is about the benefit, with the costs being referred to as “will” and the benefits as “may”.

Paragraph 10 of the Explanatory Memorandum is completely different, because the cost to business there is identified at around £0.4 million a year, with an estimated one-off cost as well. But it talks also about the impact on the public sector, saying:

“There is an estimated cost of £5.3 million per annum, plus £0.2 million implementation costs. There is an estimated benefit in reduction of healthcare costs of £1.15 million per annum. The benefit to society, for example to victims, the police and the criminal justice system through a reduction in alcohol related crime is estimated as £3.6m per annum”.

There is a net annual cost of £0.5 million—so that is different. But I do not know where the evidence is for the impact that is outlined in the impact assessment. The evidence base would be crucial on this, and if the Minister could enlighten us on the evidence base for those figures and why they are different in the impact assessment from the ones in the Explanatory Memorandum, I would find that helpful.

I have quoted from Norman Baker’s explanation in the committee’s 35th report. He explains the modelling used and offers,

“reassurance that work is in hand to improve the quality of checking Home Office Statutory Instruments and supporting documents”.

I still do not understand the reasons for the differences, but maybe I am missing something that is very obvious to others—I just do not know what it is, and other noble Lords may also find a lack of clarity there. If the Minister can give an explanation on points that I have raised regarding costs and benefits, that would be very helpful.

The second point is on the impact of the policy. What difference would this policy make? The rationale for the policy is outlined on page 7 of the impact assessment, which cites the NHS costs of £3.5 billion, alcohol-related crime at £11 billion and lost productivity due to alcohol at around £7.3 billion a year. That is £21.8 billion annually. It would be helpful to have the evidence base for that, because, again, those are significant costs. If they are likely to be reduced significantly, we would like to know the evidence base for that.

Page 3 of the impact assessment identifies the policies that were considered by the Government before bringing this policy forward. Originally, there was the minimum unit price, which qualifies what they used to call competition. The Home Secretary said previously:

“We will ... introduce a minimum unit price for alcohol”.—[Official Report, Commons, 23/3/12; col. 1071.]

There were no ifs, buts or maybes—she said, “We will introduce this”. The consultation document on the alcohol strategy stated:

“In the Strategy, the Government committed to introducing a minimum unit price. However, in other areas, this consultation seeks views on the introduction of policies”.

That seems to me very clear. The Government had intended, and were clear about that intention, to introduce minimum alcohol pricing, to the extent that they were consulting on other matters in the strategy and not that one. But tucked away on the impact assessment to the order, on page 3 we learn:

“The Government has decided that the introduction of minimum unit pricing (MUP) will remain a policy under consideration but will not be taken forward at the present time”.

That is not quite the same fanfare as when it was announced that it would be brought in. So that was rejected.

The other policy rejected was the ban on multi-buy offers, such as “buy two, get one free” in supermarkets. I am not clear how that works in conjunction with this order. Presumably, although multi-buys are not being offered, they would have to be sold in line with the formula in this order at a permitted price. I would like an explanation on how that works. I go to Marks & Spencer and buy my husband six bottles of Sussex Golden Ale for the price of five—that is a multi-buy. He is not going to get drunk on those; he is not a big drinker. He might have a couple of bottles of beer at the weekend, of an evening. But presumably that affects the price for those seeking to purchase such items on a budget. Although the Government do not seek to do anything around multi-buy offers, the permitted price would have an impact on such offers.

What about those pubs or restaurants that offer in many areas fish and chips and a pint for £4.99 or £5.99? Will that fall foul of this order, if somebody decides that the beer rather than the chips has been discounted on price? How would that be assessed? I would like to know the detail of how that will work, because we are told that this policy is the alternative to banning multi-buys and minimum unit pricing. What difference is it going to make?

The Minister quoted from the University of Sheffield School of Health and Related Research, which produced the data for the Government on the impact of the policy and the different income groups. There is recognition that those with an addiction are not likely to be affected by pricing; the greatest impact appears to be on those hazardous and harmful drinkers on lower incomes, as those on higher incomes could just spend less for the same effect.

Page 13 of the impact assessment explains further that there will be no change in expenditure for the higher-income moderate drinkers but there will be an increase for hazardous drinkers of 30 pence a year. It says that,

“whereas low-income harmful drinkers are expected to increase their expenditure by £1.40 per year, higher-income harmful drinkers are expected to decrease their expenditure by £0.10 per year”.

Is that really going to make any difference? The Minister gave some sort of figures on the differences that this policy is going to make, but I have not seen the evidence behind the information that he has given.

The response to the committee from the Home Office when it asked about the impact on crime—and the Minister gave significant figures on this—was:

“The reduction in crime costs was estimated by predicting how crime will change in response to changes in alcohol consumption. These estimates do not predict how the level of crime will respond to any changes in disposable income resulting from the ban on below cost sales. However, the prediction is that, on average, alcohol spending among low income groups will increase by 0.03%, equivalent to a £0.15 increase in annual spending. It is not likely that this would lead to any considerable increase in crime”.

We need more information about a significant impact in this regard. If we want to reduce harm, including harm from crime caused by drinking, will this pricing policy do it? How much less would someone drink as a result of this policy?

The Secondary Legislation Scrutiny Committee’s report states that the Sheffield model—the ScHARR model—

“assumes that on average each person will reduce their alcohol intake by 0.04%. The Committee asked what that meant in practical terms. The Home Office responded: ‘The reduction in consumption equates to an average three units per year per person that is equivalent to a large (250ml) glass of 12% ABV wine’”,

or two regular glasses, if, like me, you do not like the large glasses that some pubs use. Given that such minimal outcomes are listed in the report, the impact assessment and the Explanatory Memorandum, one has to question whether the measure will make the significant difference that the noble Lord claims that it will. It seems to me that there is not much evidence for that.

The impact assessment says that minimum unit pricing is still under consideration, but I understand that it may be affected by the Scottish legal challenge. Is this genuinely still under consultation—I think that the committee made a similar point in that regard—or is that just a phrase now being used as a graceful way of ditching the policy when it is difficult to say what the real position is, given the comments made by the Home Secretary and the Prime Minister?

These are worthy objectives. None of us wants to see harm caused to individuals or society through alcohol. I emphasise that most drinkers drink responsibly and drink gives them pleasure rather than causes them pain. The Government need to bring forward evidence to support their policy on these issues. I hope that the noble Lord will address these issues; otherwise, it seems to me that considerable effort and money have been expended to bring forward legislation that appears to have such a small effect.

Alcohol abuse is a serious issue and we all want to see policies brought forward to address it. However, I worry that the Government do not have a grip on this issue. We have had the hokey-cokey over the minimum unit pricing and the late night levy, which was supposed to bring in £16 million a year in the first year and £17 million in subsequent years. I think that that figure is now about £520,000. Not a single early morning restriction order has been put in place. The Police Reform and Social Responsibility Act included powers for the Home Secretary to introduce full cost recovery for alcohol licences. The Government say that they will implement those powers but have not done so although the Act dates from 2011. We now have the Government’s sobriety scheme to help those with alcohol problems. The pilots were launched in April 2012 and lasted for six months. I have no information on them but I understand that six people have benefited from the scheme.

If we are going to tackle this issue, we have to do so seriously and seek to have a joined-up approach on the different issues that can make an impact. However, I am not clear that the measure before us today will have any impact. If it will have an impact, where is the evidence base for that?

[Lord Clement-Jones (LD)]

My Lords, my noble friend will no doubt be relieved to hear that I will not ask as many questions as did the noble Baroness, Lady Smith. I think that we have perfect symmetry here because I wish to ask my noble friend why he is not going further today and why minimum unit pricing appears to be only half on the table.

The Government’s response to the consultation acknowledged that there might be unintended consequences of minimum unit pricing. This nostrum seems to be becoming increasingly prevalent. What process is now involved? We have this form of pricing, which clearly is half a loaf, but what is the Home Office doing in terms of further research? We have robust Canadian research, which many of us have seen over the past few months. I have the relevant brief in front of me. It states:

“All 10 Canadian provinces have some form of minimum alcohol pricing applied to liquor store and/or bar and restaurant sales … The Centre for Addictions Research of BC at the University of Victoria has collaborated with five other research agencies in Canada, USA and the UK to evaluate minimum pricing impacts on health and safety. Six studies have been conducted which demonstrate impacts of increased minimum prices on level of consumption and alcohol-related harms including deaths, hospital admissions and crimes. The results support the predictions of the Sheffield Alcohol Policy Model and suggest that estimated benefits are larger than the model predictions”.

It is interesting that all the Canadian evidence seems to imply that the Sheffield model is rather conservative in its estimate of the health and social benefits arising from minimum unit pricing.

It is interesting that the Government seem to have parked this matter. I very much hope that the Minister will describe what next steps will be taken to introduce something rather more robust than what we have before us today. How on earth will officials in the Home Office assess what the unintended consequences will be? It seems to me a very circular argument. There may be unintended consequences but surely, if the evidence appears robust, the way to deal with that is to go forward on a trial or sunset-clause basis, see what the impact is and then make adjustments accordingly rather than just talking about unspecified unintended consequences. I take the point about the Scottish legal challenge but that is a timing issue in terms of seeing whether or not that will bear fruit for the complainants.

I very much hope that the Minister will give us a little bit more of a window on the future as opposed to this rather cautious approach that we have at present.

[Lord Taylor of Holbeach]

My Lords, I welcome this debate. It is good to explain to the House how this measure fits in with the Government’s alcohol strategy, and the Motion tabled by the noble Baroness, Lady Smith of Basildon, has given us a chance to debate it more fully than we might otherwise have done.

I think all noble Lords agree that, when used responsibly, alcohol can be a welcome part of social situations and community events. However, we all also accept that alcohol-related harm can affect many people in England and Wales, with victims in almost half of violent crimes believing the perpetrator to be under the influence of alcohol. This is completely unacceptable. That is why the Government are committed to tackling this issue and why it is crucial that they use all the tools at their disposal to tackle the causes of this harm.



Through the alcohol strategy, the Government are promoting proportionate and targeted action to reduce the costs and problems caused to society by irresponsible and excessive drinking without disproportionately affecting responsible drinkers. This includes giving local areas more powers to address the alcohol-related problems that they face on a daily basis through the local alcohol action area scheme, which was launched last week. It offers support to local areas in cutting alcohol-related crime and disorder and reducing the damage caused to people’s health. As well as taking local action, we are acting nationally by challenging the alcohol industry to raise its game by supporting targeted local action, tackling the high strength or high volume products that can cause the most harm, promoting and displaying alcohol responsibly in shops, and improving education around drinking.

I think all noble Lords will agree that alcohol that is too cheap is a threat to achieving the aims of our strategy. We must do something about it without penalising those who choose to enjoy alcohol in a responsible manner and without threatening economic growth by creating red tape for business. The noble Baroness, Lady Smith, and my noble friend Lord Clement-Jones asked about minimum unit pricing. I would like to be clear that this is not a debate about the benefits of minimum unit pricing. However, I accept that it is a matter of great interest and will therefore speak briefly on it. A wide range of evidence was provided throughout the consultation on minimum unit pricing. These have been considered alongside updated modelling by the University of Sheffield—I note the comments of my noble friend on this point—which suggests that a minimum unit price of 45p would have an impact on the consumption of hazardous and harmful drinkers, thereby resulting in a significant reduction in health harms and some reduction in crime-related harms.

A number of other issues were raised, including the potential impact of minimum unit pricing on the cost of living, the economic impact of the policy and increases in illicit alcohol sales. The Government acknowledge the need to give careful consideration to any possible unintended consequence of minimum unit pricing. Further, while we remain confident of the legal basis of the minimum unit pricing policy and will continue to support the Scottish Government in this area, the Government are also mindful of the need to watch the outcome of the legal challenge to the Scottish Government’s minimum pricing legislation. For these reasons, the Government have decided that the introduction of a minimum unit price for alcohol will remain a policy under consideration. I emphasise to the noble Baroness that it remains a policy under consideration. It has not been shelved but will not be taken forward at present. We will continue to monitor carefully the legal developments and the implementation of this policy in Scotland.

Perhaps I may answer my noble friend Lord Clement-Jones’s comments about minimum unit pricing in Canada. Two provinces are actively engaged in this: British Columbia and Saskatchewan. They have been doing so for some time but their policies are different in practice from the proposals that have been made on MUP in England and Wales. Social reference pricing in Canada involves minimum prices for types of drinks but not per-unit pricing. The context of sale is also different. Alcohol sales are more tightly controlled in those provinces than is the case currently in England and Wales.

My noble friend also asked about the process for considering MUP. The policy remains under consideration, which includes looking at the experience of the policy in other jurisdictions and the potential unintended consequences. Officials remain focused on keeping this under review and will continue to do so, but it would not be appropriate to set a timescale for when this will be completed.

Perhaps I may address some of the questions asked by the noble Baroness, Lady Smith. It is easier to do so in the general rather than the specific, and I hope she will allow me to write to her on some of the specific challenges she made on the impact assessment and the Explanatory Memorandum. However, I should say that the impact assessment was approved by the Regulatory Policy Committee in 2013 and given a green rating. The benefits of the model have been based on the University of Sheffield’s ScHARR model and experts in a number of different fields have fed into the policy. While the reduction is modest compared with the size of the problem, this policy will impact the most on hazardous and harmful drinkers. That is why it is designed in this way. We know that those particular drinkers generate the biggest costs for alcohol-related harm. What this policy seeks to achieve is 900 fewer crimes in the first year alone. The reduction in hospital admissions will go from 100 in year one to 500 in year 10.

The noble Baroness asked for the evidence base for the cost of alcohol. NHS costs are based on Department of Health estimates and alcohol-related crimes are based on Home Office estimates.

[Baroness Smith of Basildon]

I am grateful that the noble Lord is making the effort to address the questions. I did not ask for the evidence on alcohol-related crime or hospital admissions; I asked for evidence of the change that this policy would bring about. That was what I was trying to understand—the evidence for the changes that the Government say this policy would bring about, not evidence of the problem.

[Lord Taylor of Holbeach]

Perhaps in the context of the figures that I am intending to provide to the noble Baroness when I reply in detail, I will seek to do so. However, I think that I have just said in my most recent contribution to the debate that this policy is focused principally on those people who hazard themselves and others through excessive drinking. The policy is targeted at those drinkers with very high consumption of alcohol and is considered to be a very effective policy in this area.

The noble Baroness asked why the Explanatory Memorandum contained one set of figures and the impact assessment a different set. The Explanatory Memorandum identifies the health benefits for the public sector, as is the practice. The impact assessment presents a wider picture and includes the gains in quality-adjusted life years, which also benefits patients. The costs in the impact assessment outlined in the table on page 2 relate only to the costs in the public sector, because that is normal practice for impact assessments.

In response to the question on multi-buys, full details on how this policy will work with regard to the type of offers that have been mentioned can be found in the guidance that has been published by the Home Office. In effect, it means that, aggregated together, the multi-buy still has to meet the requirements of this policy so that there is no suggestion that the multi-buy can break through the price that this measure implements. Businesses can continue to promote multi-buys if the total price is not beneath the permitted price.

I picked up one point that the noble Baroness made about page 2 of the impact assessment. She pointed out that a whole series of costs were not included in those figures. If she looks, those total figures excluded transitional costs—and I think she admitted that the costs listed immediately above the paragraph entitled,

“Description and scale of key monetised costs by ‘main affected groups’”,

were transitional costs.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. I did see that but I just wonder why the figures exclude transition costs. They are still a cost of implementation.

[Lord Taylor of Holbeach]

It was considered that this was a reasonable way to evaluate the costs and benefits over time. Obviously, this is a continuing process, and amortising transition costs over time is not normal practice when one is doing an impact assessment. These costs are identified separately, which enables noble Lords to assess them properly.

I pay tribute to the noble Baroness’s diligence in drawing the House’s attention to some of the matters relating to the analysis of the Explanatory Memorandum and the impact assessment. I will make sure that all noble Lords who have spoken receive a copy of the letter which I shall write to the noble Baroness setting out answers to the detailed questions that she has asked me, and I hope that I will be able to answer them to her satisfaction.

I believe that at heart this is at least a brick in the wall towards building an effective alcohol strategy. We must build on this to maintain the momentum of our commitment to reduce the harm caused by alcohol to consumers, to families, to the thousands of victims of alcohol-related crime, and to local communities and businesses, which are also vital to our economy. With that in mind, I commend the order to the House and I hope that it will prove acceptable to noble Lords.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister and I look forward to receiving his letter. I do not doubt the Government’s objectives in this regard at all; what I doubt is the effectiveness of the policies outlined. I will go through his letter in some detail but, when I look at the tables in the impact assessment, the impact does not seem to be at all significant. I was not necessarily making the case for a minimum unit price; I was just trying to understand the Government’s direction of travel on this, having gone from absolute certainty to a position where the policy is now under consideration and under review. There is a lot more work to be done on this. For now, I beg leave to withdraw my amendment but I look forward to receiving the Minister’s letter and perhaps to having further conversations with him on this issue.

Amendment to the Motion withdrawn.

Immigration and Nationality (Fees) Regulations 2014

Baroness Smith of Basildon Excerpts

Monday 24th March 2014 Grand Committee

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for his explanation. In some ways the orders are fairly straightforward. The Minister will be pleased to know that we certainly support their principle and do not intend to oppose them. However, it would be helpful to have further clarification on detail. The Minister is smiling because he knows that I always seek further clarification and he would not expect me to do otherwise.

We have just finished the Committee stage of the Immigration Bill and it is helpful to have this debate against that backdrop. Many of the issues we have been discussing in the Bill have common themes with these orders.

On the first order, I understand that there is a flat 4% increase across the board. I tried very hard when the Minister was speaking to try to do some calculations in my head but the maths was beyond me at such short notice. It is projected that some increases will be more than 4% and some will be less. Is the Minister able to give me more detail? I do not expect it today; I would be happy with a more detailed breakdown in writing of the figures he gave for the percentage increases for different kinds of visas, given that it is supposed to be a 4% increase across the board.

I understand that this is an income-generating measure. I entirely agree with the Minister’s point that those who benefit should pay the cost; I have no difficulty with that. However, when reading the impact assessment I struggle to understand how much of this is to cover a shortfall in Home Office funding from the Government and how much is to cover the costs and ensure that this is self-financing. The impact assessment makes it clear that funding for the immigration system is going to reduce over the five-year period of the current comprehensive spending review. Over the CSR period financial planning requires the Home Office to deliver the maximum amount of fees agreed with the Treasury under the CSR. Any income above that amount is surrendered to the Treasury’s Consolidated Fund. I am trying to understand how much additional income the Minister thinks would be generated from the fees being proposed in this order today, as well as the impact of those increased fees.

I have already said that we support the principle. However, during the passage of the Immigration Bill the impact of the Government’s immigration policies on overseas higher education students has generated considerable discussion in your Lordships’ House. I would be keen to know what information is available to the Government and how robust the evidence is on whether foreign students are going to be deterred by the increase in fees. I know there are figures on applications in the impact assessment, but I am not sure how those are arrived at. More information about the process used and clarification of the figures would be helpful.

--- Later in debate ---

[Lord Taylor of Holbeach]

I thank the noble Baroness for her support and general welcome for these measures. I appreciate her comments and have, for me, a surprisingly large number of answers. I hope that the Committee will bear with me on them.

First, I must say that I did not refer to “a surge” but “a scourge” of illegal migration. I hope that the record shows that because that is what I meant to say. I do not want to get my notes muddled up and will therefore deal with the fees regulations first and then talk about the order on illegal working. I have a fair amount of information and will make sure that the noble Baroness receives details of the percentage increases, which actually were set out in the Written Ministerial Statement of 24 February. I am sorry that I do not have a copy of it to hand but will certainly make sure that I send it to her.

Secondly, the noble Baroness asked how much of the income generated is to cover a shortfall. She is quite right: we use this money to help support immigration services in general, which are quite expensive. If we want effective immigration control which efficiently delivers a speedy resolution of difficult cases, we have to make sure that we have the right resources to do it. The fee increases are expected to raise approximately £50 million per annum.

The noble Baroness went on to talk about that familiar subject: student visa fees and student numbers. If I appeared a little breathless when I came into the Committee, it was because I had been talking to a certain noble Lord about this very issue. I do not seem to be able to move around the House without talking about it. Our view is that there is no direct relationship between the visa fee and volume demand at this price level because the major costs are not visa fees or even the health charge that noble Lords have spoken about. Independent research suggests that visa pricing is only a marginal consideration for students and the UK is one of the most desirable places to come to study. This is an argument I have been making in the Immigration Bill. University applications are up 7% as of last September. We know that there is a problem in the Indian subcontinent as a whole, and that is reflected in the Australian experience. Elsewhere, numbers are almost the same. We have had a considerable surge in the numbers from China, which has more or less offset the decline from India. We are confident we have got the balance right.

Visas are not used as a method whereby we limit migration. We have not targeted tier 4 applicants. The 4% increase that applies to other fees also applies here, so it is a standard across-the-board increase. We set fees based on the value of the successful application to the migrant and, to that extent, it is a market-led calculation.

I think the noble Baroness welcomed the increase in fees as long as it was going to maintain or, if possible, improve service standards. We have put measures in place. There has been considerable organisational change in the old UK Border Agency. UKVI is now in-house in the Home Office, and our performance against service standards is improving. In the past year we have made great progress in reducing the stocks of in-country case work and backlogs. A straightforward application made today would be dealt with within service standards.

The noble Baroness asked whether we have considered joining Schengen or have considered our relationship with the Schengen visa system.

[Baroness Smith of Basildon]

I was not suggesting that we join Schengen. I was just taking about the comparative costs of visas.

[Lord Taylor of Holbeach]

Our visa product is competitive with Schengen in price and entitlement. We are running a pilot in China trialling ways to encourage tourists to apply for a Schengen visa and also to travel to the UK. This allows selected travel agents—that is fairly straightforward in the Chinese experience—to make offline applications for tour groups using the same form as they use for Schengen. We are trying to facilitate the use of Schengen applications in China and are monitoring that because some people say that having to make two applications for separate visas is a deterrent. However, I am pleased that the noble Baroness is not suggesting joining Schengen. In fact, I have to say that I did not think that she had said that, either—but my papers suggested that she might have done.

On the question of illegal working, I have the figures, which show an increase in particular years. They started off at 1,722 in 2008-09; the next year, they were 2,339, while in 2010-11 they were 1,898 and in 2011-12, 1,342. In 2012-13, they were 1,270 but last year, up to 28 February—we are still in 2013-14—the number was 1,862. I shall make sure that the record has the figures available.

[Baroness Smith of Basildon]

I did not quite catch them, but I shall read the record in Hansard. Does that suggest that from 2010 until last year, the figures for actions against those who employ illegal workers went down?

[Lord Taylor of Holbeach]

Yes, that is certainly the case. They dropped in that period and they have now increased markedly, so the latest figure is on track to be the second highest since the scheme was introduced.

We are taking steps to increase our focus on illegal working. With the creation of the Immigration Enforcement Directorate last year, we have already seen a significant increase of 47% in illegal working operations in 2013, compared with 2012, and a corresponding increase in civil penalties involved. Around 10,000 civil penalty notices were issued to employers since the start of the scheme until the end of 2013. The gross value of penalties levied during that time is in excess of £90 million, but the net recoverable value is £70.8 million. During the period from 2008 to 2013, almost £30 million was collected. Civil penalties to the value of £20 million were written off. The noble Baroness is right to draw attention to that factor. That happened during the previous Labour Government as well as during this Government, often because the companies evade the penalty by dissolving their business. The remainder is still subject to recovery; we are still pursuing some of these people—but we are using the Immigration Bill to make it easier to enforce civil penalty debts in the courts. The change will accelerate the process of enforcement, reduce costs and provide clarity.

[Lord Taylor of Holbeach]

Whether you are a small or large employer, it is clearly illegal to employ people who are not entitled to work here. The penalty regime is designed to provide the enforcement authorities with flexibility in how they apply the scheme. The whole point of the exercise is not to drive people out of business but to prevent businesses that gain an economic advantage by employing illegal workers from gaining that advantage and to discourage them—and to make sure that they have proper checks in place, small or big business, to make sure that they have proper records in these cases.

I would argue that in some ways it is easier for a small employer to have a rigorous regime, because people are more likely to be working alongside each other in small businesses than in larger organisations. We are trying to work with business. I hope that my noble friend will agree with me that the employment of illegal labour is a scourge that needs addressing and that, whether it is in large or small businesses, we are right to deal with it. They are treated equally, and we allow payments in instalments to reflect the impact on the business. I should just mention that.

[Baroness Smith of Basildon]

If the Minister has other points to make on the questions I asked about the penalty notices then I may be jumping the gun, but so far he has only repeated the information that I spoke of and has not given any of the information that was asked for in the debate. One question was about the money written off. The Minister in the other place said that £7.2 million was written off when companies were dissolved. I asked in particular whether we did any checks on the directors of those companies to see whether they set up other companies. I also asked what the £12.8 million remaining out of the £20 million written off was for. In the other place, the Minister, James Brokenshire, just said it was for “different reasons”. When we are writing off £12.8 million, I do not think that that is an adequate reply.

[Lord Taylor of Holbeach]

I cannot really add directly to the information that the noble Baroness already has but will certainly write to her on the matter. We are tackling phoenixism—the arrangement whereby a business is here today, gone tomorrow and there again the following week. We are intervening to prevent companies dissolving to evade penalties, which is a common enough phenomenon, and we act with the Insolvency Service to disbar directors who are clearly not prepared to abide by the law in this area. As I said earlier, the Immigration Bill accelerates debt recovery by enabling us to register the penalty as an order of the court. This avoids lengthy court processes, as we can insist on payment on a much easier basis than by having to use the court.

I have tried to answer a number of the questions but may not have answered them all. To the extent that I have failed to do so, I will make a point of writing to the noble Baroness and to my noble friend so that they are in the loop on this matter. I beg to move.

Immigration Bill

Baroness Smith of Basildon Excerpts

Wednesday 19th March 2014 Lords Chamber

Moved by

[Baroness Smith of Basildon]

79F: Clause 62, page 50, line 3, at end insert—
“( ) Any power of the Secretary of State to make regulations under this section is exercisable by statutory instrument, not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

--- Later in debate ---

[Baroness Smith of Basildon (Lab)]

My Lords, I hope it is nothing I am about to say that is encouraging a mass exodus from the Chamber at this point.

We now come to a group of amendments that deal mainly with the transitional and consequential provisions. Our amendments come from some of the recommendations of the 22nd report of the Delegated Powers and Regulatory Reform Committee, and I turn to them first. Amendment 79F comes from a recommendation of the committee. Clause 62 deals with fees to be charged in connection with immigration and nationality. This would provide for any order made under this clause to be subject to the affirmative procedure. It is a probing amendment to draw the House’s attention to the committee’s remarks and seek information from the Minister.

The provisions in the clause replace the existing provisions in Section 51 of the Immigration, Asylum and Nationality Act 2006. However, as the committee points out, the structure of the new provisions is different. For absolute clarity, I shall quote from the committee, which states:

“Under section 51, the matters in respect of which fees may be charged are required to be set out in an affirmative order with the amount of a fee to be specified in regulations. Fees regulations under section 51 are subject to the negative procedure unless the amount specified exceeds the cost of the service to which it relates, in which case it is subject to the affirmative procedure. Under clause 62, the matters in respect of which fees are to be charged must still be specified in an order subject to the affirmative procedure and the amount or rate of the fee would also still be specified in regulations. But, those regulations would in all cases be subject to the negative procedure even where the amount or rate of the fee exceeds the costs of provision. However there is a significant difference in that under clause 62 the affirmative order is required to specify how the fee is to be calculated and the maximum amount or rate of the fee that may be specified in the regulations”.

The report continues:

“The Home Office argues in its memorandum that it is appropriate for fees regulations under clause 62 to be subject to the negative procedure where the amount or rate exceeds that required to meet the cost of provision, because the upper limit for the fee will have been specified in the affirmative order under clause 62”.

Although the committee agreed with the Government’s reasoning, it wanted to,

“draw these provisions to the attention of the House because … this represents a reduction in the level of the parliamentary scrutiny applied to immigration and nationality fees where the amount of the fee exceeds the cost of provision”.

Can the Minister put the Government’s reason for this clause on the record, and expand on it, because I am not 100% clear on the reason? The Minister has been very clear when he has spoken in debates about his commitment to scrutiny, so I am sure that he will understand the concerns about any reduction in scrutiny on such issues.

Clause 66 deals with transitional and consequential provisions. Subsection (2) confers power on the Secretary of State by order to,

“make such provision as the Secretary of State considers appropriate in consequence of”,

the Bill, while subsection (3) provides,

“an order under subsection (2) includes provision amending, repealing or revoking any enactment”.

Our Amendment 81B would leave out subsection (3). Once again, it is a probing amendment and emanates from the report of the Delegated Powers and Regulatory Reform Committee report, which said—and I share its concerns—that the wording of subsection (3) is very wide. It said that it is,

“not explicit as to whether it is limited to a power to amend an enactment passed or made before or in the same Session as that in which the Bill is enacted, whether it includes a power to amend an enactment passed or made after that, or indeed whether it includes a power to amend an enactment contained in the Bill itself”.

The Government responded to the committee saying that it was,

“not intended to extend to a power to amend future legislation”,

and that the reference to any enactment cannot be read as applying to the Bill itself. I seek clarity on that, because the Minister said that the Government were considering amending subsection (3) to extend the power to amend the provision of the enactment passed after the Bill but in the same Session.

I am grateful to the Minister for sharing that letter with us. Our reason for tabling the amendment is to get the Government’s rationale on record. Has he considered the committee’s recommendation that this be made explicit in the Bill? Is he intending to bring anything forward? The Government said that they thought that it was clear and the committee said that it did not think that it was. If the Government are considering an amendment, surely now would be the time to bring it forward, given that the issue has been raised already. I am curious as to whether the Minister thinks that an amendment should be brought forward and if he is considering doing so at a later date. It is clarity that I am seeking there.

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[Baroness Smith of Basildon]

My Lords, I appreciate that that point is not part of the deliberations today on the Bill but it was appropriate for the noble Lord, Lord Ramsbotham, to address it given the concerns raised. I am glad the Minister has offered to place an answer in the Library if he is able to. I suggest if he is going on a removal flight that people do not know he is on there and he goes incognito. That is the best way to understand how these matters are carried out. I hope that is the case.

I turn to the amendments. On transitional provisions and arrangements regarding health, perhaps I should have been clearer. I apologise to the noble Lord if I was not. The reason for raising the matter here is that I am not clear from what he said in his previous responses when I raised this if any transitional provisions are required for the transitional arrangements. He referred to the arrangements between two departments—the Department of Health and the Home Office. Where I am confused and do not understand this is, as I said, in the real-life implications and workability. Will Home Office computers be able to talk to and share information with Department of Health computers?

My recollection as a government Minister of various meetings on Cabinet committees on this is that there must be some kind of process, agreement or even legislation to ensure that that happens. I am not clear if that has been agreed from what I have seen so far. It does not seem to be in the Bill and nobody is able to tell me how the process would work where, for example, somebody who has a visa and is in the country legally but has not paid the surcharge turns up for treatment. How will the health service know that they are legally in the country but just have not paid the surcharge? They came into the country and took their visa before the surcharge was in place. If that information can be provided only by sharing information between the computers of the two departments, how will that be done, have the arrangements been put in place and is legislation needed? If not, something will be needed in transitional provisions, presumably in this Bill, to undertake that. That is what I am trying to get to. I need to understand how it will work in practice.

[Lord Taylor of Holbeach]

All I can say at the moment is that if that were needed in transition it would be in the Bill. I have been party to some of the discussions that have taken place. Indeed, it is intended that there should be an exchange of information between the two departments. If the noble Baroness does not know how that will happen, I hope I am in a position to inform her. This matter does not need legislation; it is one of good administration. My noble friend Lord Howe and I both share the determination that this should be properly done because it is important to make sure that the health service is not in any way impeded by measures that we enact in this Bill.

[Baroness Smith of Basildon]

My Lords, I do not for one moment question the determination of the noble Lord and the noble Earl, Lord Howe, to make this work but when we pass legislation we need to understand—as I said at the very beginning, at Second Reading—the evidence base for something being brought forward and the workability of it; that is, if what is sought can actually be achieved and the implications, including unintended consequences. I really want to understand this. If the noble Lord could undertake to write to me with further information about how this will work in practice that would be really helpful.

I raised two other points in speaking to my amendments. It was helpful to have the response on the record. I take it from what the Minister said that there probably will not be a government amendment coming forward on the points I raised on my second amendment, but if there was it would be helpful to have very early notice of that. I would have expected that today. On the other issue, he made the point on fees. This is a reduction in scrutiny. I understand the Government’s reasoning that under Clause 62 a higher level is set and it cannot go above that but in terms of setting the amount, specifically where the fee for the visa is higher than the cost of the provision, we experience a loss of scrutiny. That is now on the record and I am grateful to the noble Lord for accepting that, even though I understand the reasons. With that, I beg leave to withdraw my amendment.

Amendment 79F withdrawn.

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[Baroness Smith of Basildon]

My Lords, this is an interesting and useful amendment that the noble Lord, Lord Avebury, has brought before us. If the only objection from the Government in the other place was that they thought it was out of scope and that it could not be brought forward, it is clearly no longer out of scope as it has been brought forward. I hope that the Minister might take the advice of my noble friend and that, if the Government are not able to accept this amendment or bring it back, they will explain why. I really hope that there can be a positive resolution to this.

[Lord Taylor of Holbeach]

I am grateful to my noble friend Lord Avebury for raising this matter and to the noble Baronesses, Lady Lister of Burtersett and Lady Smith of Basildon, for supporting it because we are well aware of the issues faced in acquiring British citizenship by those whose parents never married. We agree that this is an anomaly which deserves to be addressed. Having understood that nationality matters were outside the scope of the Bill, we were considering whether a measure covering this could be drafted as a government handout Bill for the next Session. I understand that had this amendment been tabled in another place, it would indeed have been ruled out of scope. However, this House has different rules on relevance and therefore it is appropriate for us to debate the matter.

I say to the noble Baroness, Lady Lister, that while I cannot give her any numbers, she is quite right that this is not about numbers but about whether to do it or not. That is the position the Government are coming from.

As my noble friend Lord Avebury pointed out, the law changed on 1 July 2006 to enable British citizen fathers to pass on their citizenship to a child where the parents were not married. This was not made retrospective, however, because it could have created difficulties for those affected in relation to any other citizenships that they held. For example, some countries do not allow dual nationality, as some noble Lords will know. Since 1987, the Secretary of State has exercised discretion in relation to those born to an illegitimate father. Discretion is exercised under Section 3(1) of the 1981 Act to enable the registration of children born before 1 July 2006 who are the illegitimate children of British citizens or settled fathers. Registration can take place if the Home Secretary is satisfied about the paternity of the child, if all those with parental responsibility have consented, if the good character requirement is met and, had the child been born to the father legitimately, if he or she would have had an automatic claim to British citizenship or an entitlement to registration.

However, this exercise of discretion under Section 3(1) applies only to those who are minors at the date of the application for British citizenship. There is no power in law to register as a British citizen a person who was born illegitimately to a British citizen father before 2006 and who is now an adult. We accept that this creates a lacuna and that those who were born illegitimately to British citizen fathers are at a disadvantage compared with those whose parents were married.

I cannot accept my noble friend’s amendment as currently drafted because while this provision covers any person who would have been a British citizen had his parents been married, we think that it should be set out clearly exactly who should benefit from such a change in the law. In addition, other matters would need to be considered such as good character, which persons registered under this provision should be British citizens by descent and what additional measures should be included for those who might apply when under the age of 18. These are technical matters which need to be considered in amending the legislation. I am afraid that I must resist the amendment as it stands but I am happy to commit to taking it away, with a view to considering urgently whether the Government could prepare a suitable amendment for tabling at Report. I hope that amendment would have the support of the House, should it come back, and I therefore ask my noble friend to withdraw his amendment and its proposed new clause.

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Is this actually what we think should become a matter for administrative review? I beg to move.

[Baroness Smith of Basildon]

My Lords, shall speak briefly on these amendments because I have listened to the noble Baroness, Lady Hamwee, quite carefully on them and I share some of the concerns that she raised. Concerning Amendment 87ZA, can I just be 100% sure that I have understood it correctly? The current position is that once a decision is taken not to extend or revoke leave, that leave is extended on the same terms and conditions during the period provided for lodging any appeal or while the appeal is pending. However, the Bill would remove that provision. The noble Baroness is nodding at me, so it seems I have understood it correctly.

[Baroness Hamwee]

That is as I understand it. Possibly like the noble Baroness, I have had some difficulty following this around the course.

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[Baroness Smith of Basildon]

I share that difficulty. However, what the Bill does has quite significant implications. If I take the example of somebody who is employing an individual whose leave is revoked and who then appeals, the employer has the opportunity to continue to employ that person quite legally. What is being proposed here seems to make the employer commit an offence, because from the moment that leave is revoked, even if the individual is appealing against it, they are no longer allowed to employ that person. What I come back to on a number of areas in the Bill is the issue of unintended consequences—not thinking through from point A to point B. I may have it completely wrong, and I am happy if I have, but I would like some clarification on that point.

On the other two points, the Minister will be aware of how concerned we are about the Government’s proposals on appeals and administrative reviews. I fail to understand why the Government do not want to have the Independent Chief Inspector of Borders and Immigration reviewing decisions taken in this case. The noble Baroness asked him to confirm that. An explanation would be quite helpful. The same is true on Amendment 87ZF.

As with so many proposals the Government bring forward, I would like to understand the evidence behind the decisions being taken and an assurance that they understand and know the consequences, including the unintended consequences, of such measures.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I thank my noble friend for moving this amendment and confessing, as did the noble Baroness, Lady Smith, to having difficulty getting her head around some of this. Having had this landed on me very recently, I have similar issues.

[Baroness Smith of Basildon]

It makes no difference. We spent weeks on this.

[Lord Wallace of Tankerness]

I am advised that it is not correct that this Bill means that leave does not continue where an application has been made in time. I think there is a double negative in there. My understanding is that Section 3C of the Immigration Act 1971 provides that where someone makes an application for further leave while they have existing leave and that the existing leave expires before the application for further leave is decided, their existing leave is extended on the same terms until that further application is decided and any appeal against its refusal is no longer pending. That is the existing position. Section 3D of the 1971 Act makes the same provision where someone has existing leave which is revoked, extending leave while they can appeal against the revocation. Schedule 9 to this Bill amends Sections 3C and 3D so that they extend leave also while an administrative review can be brought or is pending. I hope that is helpful. No doubt the noble Baronesses will want to consider it. I think that is the accurate position.

Nothing in the Bill prevents people making protection or human rights claims. We are committed to protecting such fundamental rights but equally, as has been explained on numerous occasions in Committee, we also seek to prevent abuse of the system and to create an improved process. Our concern is that the amendment that my noble friend has moved would undermine both these aims.

Extending leave because a protection or human rights claim has been made following an unsuccessful administrative review would create a strong incentive to make such claims. This would undermine the greater efficiency of the appeals framework in this Bill. There would be an advantage in making a protection or human rights claim just before leave extended under Section 3C of the Immigration Act 1971 expired, even after an appeal at the First-tier Tribunal has been decided. This would create a sequential process where the further claim and any appeal are considered after the other claim has been decided rather than at the same time. It would mean that leave is extended on current conditions for a worker, even when that worker has first sought an extension of leave as a worker and then decides he no longer wants to be in the UK to work but rather wishes to claim asylum. We do not believe that that consequential inconsistency is right.

Inserting new Section 3F into the Immigration Act 1971, as proposed by Amendment 87ZA, would create duplication. Existing Section 3D of the 1971 Act already provides that where leave is revoked, the leave will continue while any appeal against revocation is brought.

I wish to make the important point that, as I said at the outset, there is nothing in the Bill that seeks to stop or prevent people making protection or human rights claims. The Home Secretary will consider and decide any human rights claim made to her and will not remove any person while that claim remains undecided, irrespective of whether they have leave. I hope that is a reassurance that there will not be a removal while a claim remains undecided.

Amendment 87ZE queries the necessity of a consequential appeals amendment. We believe that the consequential amendment is necessary. Schedule 9 repeals the provision establishing a monitor for entry clearance cases with a limited right of appeal. This monitor role is now performed by the independent chief inspector under Section 48 of the Immigration, Asylum and Nationality Act 2006. However, the Bill provides that there will no longer be any entry clearance cases with a limited right of appeal, and therefore Amendment 87ZE would retain an otherwise redundant provision.

With regard to Amendment 87ZF, the Bill simplifies the appeals framework and removes “not in accordance with the law” and “different exercise of discretion” as grounds on which appeals can be brought. Amendment 87ZF would reinstate these as reasons for allowing an appeal, although they are not grounds on which an appeal can be brought. Noble Lords will recall from when we debated Clause 11 that the grounds of appeal under that clause are that a decision breaches the UK’s obligations under the refugee convention to those entitled to humanitarian protection, or is unlawful under the Human Rights Act. These are the relevant grounds for challenging refusals of protection or human rights claims, and, in considering them, the tribunal is considering whether the decision was in accordance with the law. That is the important point in the appeal. Similarly, the UK’s obligations to asylum seekers entitled to humanitarian protection or under the Human Rights Act are not discretionary. There is therefore no exercise of discretion for the tribunal to consider in those appeals that come before it.

I hope that in the light of this explanation and these reassurances, my noble friend will feel able to withdraw her amendment.

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[Lord Deben (Con)]

My Lords, I suddenly thought that the court which heard St Paul declare himself a Roman citizen must have been just as surprised as we are at some of the people who claim to be British citizens, both by name or background and present place of abode. Your Lordships will remember that St Paul made an important and entirely supported point. Having declared himself a Roman citizen, he was treated in a different way. We have an important point here, and I commend my noble friend Lord Avebury in raising it. This is a very difficult area, not least because the exemplars are not ones that are easily taken to the heart of the broad mass of the British people. That means that those people should be particularly able to call upon this House.

I live in a house which was previously occupied, a long time ago, by the man who won the War of Jenkins’ Ear—the Battle of Porto Bello. At that time we thought that British citizenship was of enormous importance. People who found it quite hard to explain how they had managed to become British citizens were still supported, sometimes for pretty dubious reasons.

I hope that my noble friend will consider very carefully the points which the noble Lord has made. We live in a world in which statelessness is one of the most terrible things that can befall anyone. If you do not belong and cannot come to belong, you are placed in an impossible position. In a sense I welcome that this is so peculiar. This so special a situation which has been adumbrated, and the others around it are small in number and, as I suggested, do not affect many people or raise their sympathy in this country. Indeed, I fear that they could easily be used by some organs of the press as another way to beat the Government on their immigration policy. That makes it all the more important that we are very serious about this.

I therefore hope that my noble friend, in expressing his view on this amendment, will reassure the House that we do three things which are basic to British justice. First, we will recognise that if we have granted citizenship, or if someone has citizenship, we will defend it, and do so even though it be to our own hindrance. Secondly, we will not continue, unless there is some really good reason, the unacceptable position in which we say to somebody, “We will take away your citizenship but will not tell you why”. I find that unacceptable. I can see why people do that, but the circumstances must be most extreme before it is reasonable and acceptable. Thirdly, to take away someone’s citizenship, it is not reasonable to say that you assume that they can get another country’s citizenship. It is only reasonable to say that you know that they have another citizenship; anything less than that is wrong. It may not be convenient, but it is not right.

We have been the signatory to and the driver of much of the international law that seeks to reduce statelessness to its minimum. I fear that in this particular case, we may, for very good reasons—in seeking to close loopholes and make neat what is essentially a not very neat kind of law—do something which will do great injustice to a very small number of people. However, it is none the less injustice if it affects but one.

[Baroness Smith of Basildon]

My Lords, I will be brief, because I do not want to repeat the lengthy debate we had on this issue on Monday evening. That the noble Lord, Lord Avebury, has raised this again tonight, as well as the comments made by the noble Lord, Lord Deben, indicates the strength of feeling and the very grave concerns about the Government’s provisions, which would make stateless some people in this country who are currently citizens. The issue was never, as the noble Lord perhaps thought on Monday, about the withdrawal and deprivation of citizenship, but about the consequences of making people stateless, not just for that individual but for public safety, national and international security. The noble Lord, Lord Avebury, made the point about somebody either being trapped, stateless, in this country, and our obligation to that individual, or somebody being isolated overseas, with the implications that that has for the security of that country and our relationship with it.