Short-term Holding Facility (Amendment) Rules 2022
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Lord Ponsonby of Shulbrede (Lab)
My Lords, I too thank my noble friend for bringing this regret Motion. She set out the reasons for doing so in her characteristically thorough way, and I will try not to repeat her points—but she has been so thorough. Nevertheless, I will set out the case as quickly as I can.
This SI creates a new category of STHF called the “residential holding room”. It appears that this has been created specifically for Manston detention centre, for which, as a non-residential STHF, the previous time limit was 24 hours. This SI changes the time limit to 96 hours, or four days. Additionally, the Secretary of State can extend this. Despite this being close to the five-day limit for residential STHFs, there are significant differences in the minimum conditions, which it is worth setting out. There is no requirement to allow migrants to have access to the internet or to send and receive correspondence, and there is no requirement to fund migrants to correspond with legal advisers, the court system or the UN Refugee Council. It is also unclear whether face-to-face visits are provided for, or whether detainees have the right to meet their legal advisers. There is also no requirement to have separate sleeping quarters for men and women—this was mentioned—or for minors to be housed in separate sleeping quarters, away from unrelated detainees. There are also reduced requirements for health-risk reporting by health staff.
The Government have defended the new rules, stating that the new category of STHF is needed because Manston is a “unique” facility that requires “bespoke” time limits and arrangements. Can the Minister confirm that it is indeed unique, in that there are no plans to extend RHRs to other sites in the future? Both my noble friend Lady Lister and the noble Baroness, Lady Hamwee, raised this question, and I look forward to the Minister’s confirmation that this will not be extended.
We heard that stays in Manston have been confirmed to be much longer than the 24-hour limit—up to a month, according to the Home Office. I understand that there are exceptional circumstances and that the Government are in a difficult situation in many ways. I have a couple of questions for the Minister. Will some of the detainees at Manston who are being accommodated there for up to a month be entitled to phone calls, internet and gender-separated sleeping quarters, as they are in other facilities in which they are allowed to stay for only five days?
Also, given the reports of dozens of cases of diphtheria in Manston last year, and warnings from health officials that cases were spreading within migrant facilities, do the Government believe that the new requirements for health reporting in Manston will be enough to protect detainees’ health? The noble Lord, Lord Roberts, raised this question at Oral Questions today, and clearly there is concern about this matter. I note that the noble Baroness, Lady Bennett, compared the rhetoric of the noble Lord, Lord Ahmad, in another Oral Question today, about the ideals of the Council of Europe and the ECHR—and here we are, talking about the practicalities of dealing with a difficult situation.
The noble Baroness, Lady Hamwee, mentioned Eric, Lord Avebury, whom I am proud to claim as a noble kinsman. I remember many years in this House when he unremittingly raised the concerns of refugees—he may well be looking down on us in this debate now.
The right reverend Prelate the Bishop of Leeds raised an interesting idea, pointing out that quite soon we will deal with the Illegal Migration Bill, which may be an opportunity for this House, or perhaps the opposition parties, to investigate this SI and similar ones and to give them more thorough scrutiny. I was interested in that suggestion, and I will consider whether my party wants to take that further.
The questions have been set out thoroughly by my noble friend and other noble Lords, and I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
I thank all noble Lords for their contributions, and particularly the noble Baroness, Lady Lister, for bringing this debate before the House. Clearly, these are important rules, and it is important that they get an airing and that the views of the Secondary Legislation Scrutiny Committee are considered in this forum. The debate obviously follows concerns about the new rules expressed in that report by the Secondary Legislation Scrutiny Committee, and I will endeavour to answer them in the course of my speech and to address the questions of the previous contributors.
I will first put these new rules into context. Since 2018 we have, sadly, seen an enormous increase in the numbers of people choosing to put their lives into the hands of people smugglers and enter the UK unlawfully, after crossing the channel in small boats. We will all be aware that last year some 45,755 people crossed the channel, seeking to enter the country illegally. That figure was 60% higher than in 2021. We know that the estimates for this year range between 65,000 and 85,000. We also know that 51% of those 45,755 who arrived last year arrived in August, September and October, with 8,631 in August alone. The Manston facility in Kent was opened specifically to provide secure processing and security checks for those small-boat arrivals.
Baroness Hamwee (LD)
My Lords, before the noble Baroness responds, I asked a question about DBS checks. I wonder whether the Minister is able to answer it.
Lord Murray of Blidworth (Con)
Certainly. It remains my understanding that those who have dealings with unaccompanied asylum-seeking children would be the subject of DBS checks. Whether it is the case that all of those working at the Manston site have DBS checks—those working with adults—I cannot answer at this point, but I would anticipate that is the case. I will certainly write to the noble Baroness in respect of that.
Baroness Hamwee (LD)
I am sure the Minister will understand that vulnerable adults need safeguarding as well—it is much wider that children.
Baroness Lister of Burtersett (Lab)
My Lords, I am very grateful to everybody who has spoken, all of whom I think have deepened the arguments and reminded noble Lords what is at stake here. I am grateful to the Minister for spelling out the Government’s case. I suspect he did not manage to answer all the questions, so I would be very grateful if he could look through Hansard and write to everybody who spoke in answer to those questions.
Ports and Airports: Queues
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The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
The Government have an ambitious vision for the future UK border, which will put in place the world’s most effective and secure border system. We are already using automation and trialling other technologies to improve fluidity and minimise queues for all arriving passengers, without compromising on our number one priority: the security of the border.
Lord Mann (Non-Afl)
Last year we had the absurdity, particularly at holiday times, of having to queue to get back into our own country. Can the Government guarantee that this year at holiday times we will not have that indignity?
Lord Murray of Blidworth (Con)
I am afraid I simply do not agree with the picture that the noble Lord paints. Border Force plans extensively at both local and regional levels to ensure the smoothest possible journey for all passengers, with over 90% of passengers processing through the UK border in 30 minutes or less. I remind the noble Lord that there are, on average, 144 million crossings each year at the UK border. An estimated 86% of those passengers who travel through the UK border are eligible to use the automated e-passport gates, which are currently our automated solution for processing arriving passengers.
Lord Lancaster of Kimbolton (Con)
My Lords, it was impossible not to notice what an efficient job members of the Armed Forces did when they replaced members of Border Force during the recent strike period. Indeed, some passengers are rather hoping there might be more strikes over the busy summer period. But that to one side, this is not a job for members of our Armed Forces. The MACA—military aid to the civil authorities—rules are very clear that members of the Armed Forces should be used only in extremis. Can my noble friend reassure me that contingency plans are in place to ensure that this does not happen again?
Lord Murray of Blidworth (Con)
Well, I thank the noble Lord for his generous remarks about the effectiveness with which the contingency plans to deal with strikes in the Border Force succeeded in ensuring adequate—indeed, efficient—flow through the border. I can reassure him that there are certainly no plans, in a non-strike scenario, for members of the Armed Forces to replace members of Border Force. It might assist the noble Lord to know that we have in place plans to further digitise and automate the border, such that in due course the operation of e-gates will be completed solely by facial recognition and there should be no need to place your passport on the e-gate. Ultimately, we wish to simply use facial recognition alone, without the need for an e-gate. But these are, of course, all in the future.
Baroness Deech (CB)
A week ago, I suggested to the Minister that a short-term fix, at least, would be to have a separate fast-track queue for British citizens, as distinct from EU citizens. The Minister said they were included because they were “our friends”. However, the friendship is not reciprocated, and we have many friends around the world. I put it to the Minister again: why can we not have a separate fast-track line for British citizens?
Lord Murray of Blidworth (Con)
As I say, and as I said to the noble Baroness on the last occasion, we take the view that it is more efficient in terms of flow for all the categories that are allowed to use the e-gate to do so. That includes our friends in America, the Five Eyes nations, Japan, Singapore and South Korea. They may all use the e-gates and this accelerates the flow through our airports. There is nothing to be gained in the view of the Home Office by providing lanes on the basis that the noble Baroness adumbrates. I can reassure her that we are not in the business of retaliating when countries wish to include British nationals in a separate queue.
Lord German (LD)
My Lords, in the meantime, while we wait for the nirvana which the Minister has outlined—I have waited for well over an hour just to get through an e-gate—one of the things that could be done is to improve the software so that you do not have to attempt once, twice, three times in order to get your passport to work. The number of failures in that system is so great that it is, in fact, creating queues artificially. As the Minister will know, now that 10 year- olds can use the e-gates, we are going to have more people queueing, more second attempts, and more third attempts. Will the Government do something about the software while we wait for this nirvana?
Lord Murray of Blidworth (Con)
I hate to point out to the noble Lord that in many cases a failure of the passport to be read by the e-gate is often due to a lack of care taken with the passport by the owner. In many cases, I am afraid the e-gate works perfectly well. In due course, we plan for the e-gates to open simply on recognition of the noble Lord’s face.
Lord Watts (Lab)
If the system is so good, why have airports introduced a system for people to pay extra to get through quickly, because they experience long delays and the only way they can get through quickly is by paying extra charges to the airport?
Lord Murray of Blidworth (Con)
I do not know about that; I will look into it. As far as I know, the airport layout is a matter for the owner of the airport. If one pays for some sort of particular access to the border gates, that is something that the airport will do. It is certainly not the case that you can pay Border Force for quicker access across the border.
The Earl of Kinnoull (CB)
My Lords, does the Minister accept that at least some of the problems are caused by people with pre-settled and settled status under the EU settlement scheme and that they are exacerbated because there is no physical proof of that; there is only electronic proof, which causes problems with the borders? There is a lot of anecdotal evidence and we hope to report on that relatively soon. Does he accept that that is part of the problem?
Lord Murray of Blidworth (Con)
It should not be a problem, in that holders of EU settled status obviously are entitled to an EU passport, which is capable of being read by our e-gates. Of itself, the existence of EU status is not an issue. The issue arises in only those cases where those people who are entitled to EU settled status do not hold a valid EU passport—and that is a small cohort, but one which we are looking into.
The Lord Bishop of Derby
My Lords, whatever the causes may be for queues as they arise at ports and airports, the people working there can come under great pressure as those queues and stress levels rise. Can the Minister say what support is being given to those who work at our borders to safeguard their well-being in the midst of all this pressure?
Lord Murray of Blidworth (Con)
I can certainly reassure the right reverend Prelate that the Home Office takes very seriously its obligations for the well-being of its staff both in Border Force and Immigration Enforcement. I will write to her with the detail of that.
Lord Polak (Con)
My Lords, I would like to support the comments of the noble Baroness, Lady Deech. I visited Washington last week and, while waiting in the queues, the whole line of US citizens was being marched through and looked after. We ought to be looking after our citizens in the UK in the same way. I finish by saying that, when I came back to the UK, I waited about two minutes to get through the automatic gates and did not have to wait at all.
Lord Murray of Blidworth (Con)
I am grateful to my noble friend. The issue as I understand it is that the legal framework for border crossing in America requires a face-to-face interaction with every passenger; that is the reason for the generation of queues on the other side of the Atlantic. That is not the case here. We use automation and believe that it delivers a faster and more secure border. As for the Americans allowing their own nationals to circumvent the face-to-face interview, that seems to be the logical corollary of their legal scenario; but that would not be relevant here, given the presence of automation.
Lord Coaker (Lab)
The Minister has told us that border security is the Government’s number one priority, which, of course, is right. Will he comment on media reports that an email was sent to Customs staff asking them to prioritise passports over checks for drugs and other such illegal items?
Lord Murray of Blidworth (Con)
I have not seen those press reports, but I will certainly look into that and write to the noble Lord.
Lord Mackenzie of Framwellgate (Non-Afl)
My Lords, is there any intention of restricting the right to strike of Border Force officers in the interests of security?
Lord Murray of Blidworth (Con)
I thank the noble Lord for that question—yes, under the Strikes (Minimum Service Levels) Bill, Border Force is envisaged as being subject to the legislation and regulations could be made requiring minimum service levels on the part of Border Force staff.
Shamima Begum
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Lord Carey of Clifton
To ask His Majesty’s Government what plans they have, on the grounds of compassion and morality, to reconsider their decision to refuse citizenship to Shamima Begum.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
We are pleased that the Special Immigration Appeals Commission has found in favour of the Government in Shamima Begum’s appeal against the decision to deprive her of British citizenship. It would be inappropriate to comment further, given the potential for further legal proceedings. The Government’s priority remains maintaining the safety and security of the United Kingdom.
Lord Carey of Clifton (CB)
My Lords, I thank the Minister for his considered response. I think we all know the circumstances: Shamima Begum was a 15 year-old child when, seduced by a perverted ideology, she ran away from home and ended up as the consort of an ISIS terrorist and, eventually, the mother of three dead babies. Now 25 years of age, her situation has changed since she was deprived of her British citizenship in 2019. Her provisional Bangladeshi citizenship lapsed when she reached the age of 21 and she is now stateless. I would like to ask two questions. First, what consideration has been given to her present situation, as of today? Secondly, does the Minister’s response suggest that security fears trump our moral responsibilities?
Lord Murray of Blidworth (Con)
I thank the noble and right reverend Lord for his questions. The answer is that in relation to Shamima Begum, as I indicated in my earlier Answer, due to the fact that the litigation may continue I am unable to comment specifically on the facts of that case. However, I can answer more generally that the power to deprive an individual of their British citizenship, as happened in this case, has existed in law for over 100 years. The British Nationality Act allows for the deprivation power to be exercised in two circumstances: first, where the Secretary of State considers that it is conducive to the public good to deprive that person of their British citizenship, generally on national security grounds; and, secondly, in relation to Section 40(3), if British nationality has been obtained by fraud. This power is exercised sparingly and obviously, given the national security nature of these decisions, the content of them is the subject of closed proceedings. It is therefore a matter for particularly careful consideration by the Secretary of State and that was certainly done in the instant case.
Lord Lamont of Lerwick (Con)
My Lords, may I press my noble friend on the security aspect? If we continue to refuse citizenship and refuse to put on trial alleged UK terrorists here in this country, are we not just passing the buck to other countries? If every country pursues the same policy, are we not just going to build up vast and insecure camps full of potential terrorists—the breeding ground for the terrorists of tomorrow?
Lord Murray of Blidworth (Con)
I thank my noble friend for that question. Of course it is not the case, as the noble and right reverend Lord put in his Question, that Shamima Begum’s citizenship was refused. In fact, her citizenship was deprived from her by reason of the decision of the Secretary of State, which was reviewed by the Special Immigration Appeals Commission and upheld. I do not agree with my noble friend that there is a risk of large camps of people being accrued who had been deprived of their nationality. If I might provide the figures, in 2019 some 27 people were deprived of their nationality; in 2020, it was 10; and, in 2021, it was eight.
Lord Griffiths of Burry Port (Lab)
My Lords, my noble friend Lady Chakrabarti asked a Question last week relating to the British Government’s position over the use of capital punishment. Widespread comments from all sides of the House indicated that we had no truck with it whatever; quite right too. Since the Minister is not able to comment on a current case—and I respect that—could he ask himself, and assure the House, whether statelessness is not a form of capital punishment, in the sense that it deprives somebody of status forever? If it is for the rest of their lives, is that not just the breathing dead, so should we not be opposed to it on moral grounds and let circumstances dictate what might happen to her if she were brought back? Leaving her where she is is surely inhumane.
Lord Murray of Blidworth (Con)
Clearly, the Secretary of State for the Home Office has to evaluate the balance of competing interests. Surely the principal interest and the principal duty of government is to keep the people safe. I can reassure the noble Lord that the United Kingdom takes very seriously its obligations under the UN statelessness convention. Decisions to deprive individuals are taken in circumstances where they would not be left stateless. This applies in all cases where decisions to deprive are made. In all cases, there is further detailed consideration as to the applicability of Articles 2 and 3 of the European Convention on Human Rights in relation to deprivation decisions. The Government are satisfied that all those deprivations have been actions which are compatible with our obligations under that convention.
Lord Cormack (Con)
My Lords, would my noble friend reflect that, if a 15 year-old child commits a murder in this country, they remain anonymous? We do not know the name of the person, and he or she is dealt with appropriately. Is that not rather in contradiction to the line that has been taken in this case?
Lord Murray of Blidworth (Con)
The slight difficulty the noble Lord has is, obviously, the incomplete picture of information, which is, unfortunately, the consequence of the nature of these types of decisions. The evaluation is made at the time of the deprivation decision, which in this case was in 2019. At that stage, the subject of the decision was not a minor, but obviously I cannot venture further into the facts of the case.
Lord Coaker (Lab)
My Lords, what are the implications of this case for the reform of the Prevent strategy?
Lord Murray of Blidworth (Con)
The reform of the Prevent strategy is clearly an important priority, as discussed on a previous occasion. I do not believe that this particular case has any direct impact on the reformulation of the policy. If the litigation continues, I will come back and address the House further on that.
Baroness Burt of Solihull (LD)
My Lords, I wonder if noble Lords remember the expression “compassionate conservatism”. Those halcyon days seem long gone, sadly. Shamima Begum has been variously described as a vulnerable, trafficked 15 year-old from Bethnal Green and an ex-IS recruiter. Is the point not, however, that she is our vulnerable, trafficked girl or our ex-IS recruiter? Should she not be brought home to face the music in a British court of law?
Lord Murray of Blidworth (Con)
Again, I am afraid I cannot comment on the specific facts of Ms Begum’s case. However, I remind the House that the purpose of deprivation proceedings under Section 40(2) of the 1981 Act is to protect the country in relation to issues of national security.
Lord Walney (CB)
My Lords, the difficulty the UK had being able to prosecute British people who went to Syria to support ISIS led in part to the counterterrorism Act 2019 and its provisions to prohibit people going to designated terrorist hotspots. Are the Government confident that future circumstances similar to Shamima Begum’s would fall under the provisions of that Act and enable prosecution in the UK?
Lord Murray of Blidworth (Con)
Clearly, it is a very fact-sensitive evaluation on what is an appropriate matter for prosecution. The issue as to whether to deprive someone of British nationality arises in very limited circumstances, as seen in the numbers I cited earlier to the House. I would hope that all the relevant factors are taken into account when making such decisions.
Baroness Fox of Buckley (Non-Afl)
My Lords, Shamima Begum admitted on the BBC podcast that she willingly chose to join a barbaric, nihilistic, Islamic death cult, so I am not sure about compassion. However, the Minister said that the responsibility is to keep citizens safe. Is he suggesting that the Government cannot keep people safe when there is radicalisation happening in the UK? One reason why the public do not want Ms Begum here is that, after the Manchester Arena bombing report, it seems that the Prison Service and the secret services are not able to keep us safe. Would he say that that is our problem and we should bring her home and not wash our hands of her, not because of compassion but because of moral responsibility on our part to keep people safe, even if there are terrorists among us?
Lord Murray of Blidworth (Con)
I thank the noble Baroness for her question. The answer is that, obviously, the primary duty of government is to keep the people safe. Parliament has seen fit to afford to the Secretary of State the power of deprivation of nationality on dual nationals, and that power has sensibly been exercised in the cases to which I have referred and on which I have given the numbers to the House. I do not believe that there is any greater moral equivalence in returning people for trial. The question that arises on the exercise of this power is the issue of national security.
UK-EU: Revised Passenger Requirements
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Lord Blunkett
To ask His Majesty’s Government, further to the decision by the European Commission to delay the introduction of the Entry/Exit System (EES) and European Travel Information and Authorisation System (ETIAS) until the end of 2023, what steps they intend to take to facilitate a smooth transition for travellers from the United Kingdom wishing to enter the European Union under the revised passenger requirements.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
The Government are engaging both the European Commission and the French Government through officials holding routine technical meetings to understand and influence the implementation plans of the new system. This includes working with port owners and operators to understand and support their plans, in order to mitigate the impacts from EES and ETIAS at the border. However, ultimately it is for EU member states to implement the new system.
Lord Blunkett (Lab)
My Lords, the Minister’s final words were the ones used by the previous Home Secretary when appearing before your Lordships’ Justice and Home Affairs Committee. However, three weeks ago, in a Question about overcrowding and difficulties at the border, the Minister then said:
“our own electronic travel authorisation scheme … will accelerate the rate at which people can cross the border.” [Official Report, 28/2/23; col. 126]
What is the electronic scheme that was referred to three weeks ago, and would it not be sensible to have a scheme like the US ESTA scheme whereby people can have their fingerprints and documentation taken before travelling, rather than being held up at the border?
Lord Murray of Blidworth (Con)
I find myself in the odd position of agreeing with the noble Lord, Lord Blunkett. Let me explain. The European Union has chosen to implement something called the European Entry/Exit System. This replaces passport stamping and requires non-EU nationals entering and exiting the Schengen area to provide a digital photograph and fingerprints on entry and exit. That is different from the electronic travel authorisation that the UK will be implementing in due course; that requires only a digital photograph. That is what will accelerate the rate at which people pass through passport controls into the UK, over which we have control. We have, sadly, no control over passport controls into the EU, and the EES will apply in that sphere.
Baroness Deech (CB)
My Lords, can the Minister explain why, when British people travel abroad, they are put in a queue with all the non-EU people but when they come home to Heathrow and elsewhere, Europeans and the British are in the same queue? Why are the Europeans not separate, and can that not be used as some sort of leverage?
Lord Murray of Blidworth (Con)
I understand that the United Kingdom has always taken the view that the Europeans are our friends and we treat them in the same way we always did. That, sadly, has not been the approach adopted by some of our European and EEA colleagues.
Baroness Randerson (LD)
My Lords, in his first Answer the Minister referred to working with port operators, but of course, the Channel Tunnel also deals with 10 million passengers a year and is a conduit for £140 billion of UK-EU trade. The operators of the Channel Tunnel calculate that 85% of their customers will have to pre-register and be subject to the necessary border controls. This is obviously a huge task, so can the noble Lord give us some details of his Government’s discussions with the EU? Are there any plans for a phased introduction, and to try to defer this whole huge change until after the Paris Olympics?
Lord Murray of Blidworth (Con)
If I may, I will address the question in relation to the European Entry/Exit System. That is a separate procedure from the European Travel Information and Authorisation System; it is the ETIAS which will require people to log their intended visit online and to record some biological data. The European Commission intends that it will be implemented some six months after the operationalisation of the European Entry/Exit System, which is the photograph and fingerprints at the border system I discussed a moment ago. As the noble Baroness rightly observes, the Paris Olympics fall in June next year. On the latest indications from the European Commission, the implementation date has been postponed from the end of 2023 to an uncertain date. It may be that that date will be after the Paris Olympics, but we have no indication one way or the other.
Lord Watts (Lab)
My Lords, given that most tourists are travelling to mainland Europe, would it not have made sense for us to have the same system as the French, and speed the process up?
Lord Murray of Blidworth (Con)
Clearly, the European Union and the Schengen area have set up their own system. It does not incorporate all members of the European Union; for example, the Republic of Ireland is not participating in EES or ETIAS. It makes sense for the UK, as a sovereign country, to have its own entry and exit system, as the United States does.
Lord Coaker (Lab)
My Lords, the Minister has just said the system, whenever it is sorted out, will not now be delivered until after the 2024 Paris Olympics, which is over two years after it was supposed to be introduced. He will know that Eurostar is already saying there are real problems at St Pancras, Folkestone and Dover, and you only have to travel to know there are problems. What are the Government going to do to work with colleagues across Europe to try and sort this out before summer 2024?
Lord Murray of Blidworth (Con)
My Lords, it is for the European Commission to decide when it implements its system. Our system will be ready probably before then, and implementation of the ETA is well advanced. But obviously, it is in everyone’s interest to work closely, and I am pleased to report that we have been very much doing so. Technical meetings are happening today between the United Kingdom and France regarding ongoing co-operation on questions of border control. Clearly, if we can reduce any impact, that assists both the UK and the EU member states.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I am pleased that I have still got a maroon passport, a European passport, whereas my good friend, my noble friend Lord Watson, has got one of these, a blue passport, which I understand is printed and produced overseas. Why can we not produce our own passports any more?
Lord Murray of Blidworth (Con)
I will not castigate the noble Lord for using an exhibit in the Chamber, but perhaps I can say this. We are delighted that passport covers—which are indeed, as I understand it—presently made in Europe, are obtained through a competitive tendering process. We use taxpayers’ money sensibly on this side of the House.
Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2023
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Lord Murray of Blidworth
That the draft Rules laid before the House on 2 February be approved.
Relevant document: 30th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 20 March.
Passports: Strike Action and Voter ID
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Lord Rennard
To ask His Majesty’s Government (1) what assessment they have made of the effect of strike action in April on passport applications and (2) what steps they will take to ensure that those with delayed applications will not be prevented from voting in elections on 4 May.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, His Majesty’s Passport Office is working to manage the impact of the strike action. We have comprehensive contingency plans. There are currently no plans to change the published processing times for passports in response to the proposed strike action.
A passport is only one form of identification which is acceptable for voting purposes. The full list can be found on the government website. The public do not need a passport to be able to vote. This strike action should not have any impact on people being able to vote in May.
Lord Rennard (LD)
The current 10-week delay in passport applications is frustrating for travellers. The five-week strike will cause further problems. It will also reduce the number of people who have one of the specified forms of photo ID to let them vote if they have elections on 4 May. The uptake of local authority voter ID cards has been pathetic. During debates on the then Elections Bill, Ministers referred frequently to the Post Office’s ID requirements for collecting a parcel. Will the Government now consider allowing the forms of ID that are accepted by the Post Office, including bank cards or utility bills, to be used for voting, or are they really trying to suppress the vote?
Lord Murray of Blidworth (Con)
The noble Lord asked two questions. First, in relation to the Passport Office, the department remains confident that the 10-week service standard for the return of passports will continue to be met. As the Minister with superintendence of the Passport Office, I have been very proud of the work that it and its excellent staff have done in recovering from the massive surge in applications which followed the Covid pandemic. The Passport Office remains fully resourced, following a significant increase of more than 1,200 staff between April 2021 and last summer. Last week, 99.6% of standard UK passport applications were processed within 10 weeks. More than 2.2 million applications have been processed in 2023.
I turn to the issue in relation to voting. As I have already said, a passport is only one form of ID which is acceptable for voting purposes. Expired forms of identification will be accepted, as long as the photograph is a good enough likeness. We estimate that around 80% of the eligible voting population hold a valid UK passport. This increases to around 85% when those whose passport has recently expired are included. On the basis that such a high proportion of voters hold a valid or recently expired passport, we do not plan to change our processing times. As the noble Lord has observed, anyone eligible to vote who does not have an acceptable form of photographic identification can apply for a free voter authority certificate.
Baroness Meacher (CB)
My Lords, we know that voter ID fraud among those who vote at polling stations is absolutely minimal. It is extremely likely that, even if people have photo ID, they will not remember to take it to the polling station when they go to vote. There will therefore be a considerable number of people who do not vote in elections if the Government stick to their requirement that everyone turns up at the polling station with photo ID. Will the Government therefore withdraw their photo ID requirement for people voting at polling stations?
Lord Murray of Blidworth (Con)
I am afraid I simply do not agree with the noble Baroness. This Parliament has passed an Act to require people to present voter identification and that is what will happen.
Baroness Berridge (Con)
There is a simple failsafe. It is really important that people can vote and, having sent off their passport, they might not think that they will need it. But every time the Passport Office receives an application, it sends an email that says, “We’ve safely got your passport”. Attached to that email could be a little notification saying, “If you’re relying on this as your ID for voting, please make sure that you have one of these other forms”—or it could signpost them to the free voter certificate, which would kitchen-sink this so they can vote.
Lord Murray of Blidworth (Con)
I thank my noble friend for that suggestion. Great efforts are made to advertise the availability of the voter authority certificate. Anyone concerned that a document that they intend to use will not be available by polling day may also apply to appoint a proxy up to 5 pm on polling day itself—so considerable steps have been taken to address my noble friend’s point.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the noble Baroness, Lady Berridge, has come up with a very practical solution to this potential problem. Can the noble Lord undertake to the House and the noble Baroness that he will look at her suggestion and come up with a more considered answer?
Lord Murray of Blidworth (Con)
I can certainly indicate that careful consideration is given to these issues. As always, we will consider all the recommendations and advice given to this House, including from my noble friend.
Lord Lexden (Con)
My Lords, should we remind ourselves that photographic evidence has been required at polling stations in Northern Ireland for many years and that the system there has worked extremely well?
Lord Murray of Blidworth (Con)
I thank my noble friend, who is of course correct that paper identification has been required at polling stations in Northern Ireland since it was introduced in 1985, and photo identification since 2003, when it was introduced by the last Labour Government. It has proven to be highly effective at stopping fraud and preventing the crime of stealing someone’s vote.
Viscount Waverley (CB)
My Lords, I will add to the last question and publicly commend the Passport Office—or certainly one unit within it, the international section—for providing an absolutely exemplary service. Would the Minister care to add to my positive remarks?
Lord Murray of Blidworth (Con)
I am incredibly grateful to the noble Viscount for his comment, which I will pass on. I am always very impressed by the Passport Office staff. Their work to turn around delivery times has been exemplary across the Civil Service, and it is most regrettable that the action taken by the PCS will imperil this.
Baroness Pinnock (LD)
My Lords, this delay in passport applications will undoubtedly lead to some people not having the relevant voter ID available to them on the day in order to vote. Another uncertainty is being put in front of potential voters. The Minister has been saying that people can apply for local authority voter identification, so I will give him some figures to show how minimal that is. In my council area of Kirklees—I have relevant interests—there are an estimated 4,000 voters who will need voter ID from the local authority. There have been 278 applications to date, many of which have been returned for lack of a good-quality photo. What are the Government going to do to make sure that every voter who turns up on 4 May can cast their vote?
Lord Murray of Blidworth (Con)
I believe that I have already answered that question a number of times in the course of proceedings in this House and I will not repeat it again.
Lord McLoughlin (Con)
My Lords, will my noble friend confirm that it is not only passports that are registered as a document of note for voting? Many documents other than passports are approved. Would he care to run through them?
Lord Murray of Blidworth (Con)
I thank my noble friend; he is indeed correct. Some 20 forms of identity document would suffice including: a passport—needless to say—issued by the UK, any of the Channel Islands, the Isle of Man, any British Overseas Territory, an EEA state or Commonwealth country; a national identity card issued by an EEA state; a driving licence; a blue badge; an older person’s or disabled person’s bus pass; an Oyster 60+ card funded by the Government of the United Kingdom; a Freedom Pass; a Scottish national entitlement card; a Welsh concessionary travel card for those aged 60 and over or disabled people; a senior, registered blind, blind person’s, war disablement, 60+ or half-fare SmartPass issued in Northern Ireland; or an identity card bearing a proof of age standard. I do not think I need to carry on.
Lord Scriven (LD)
My Lords, could the Minister say why the young person’s bus pass and railcard was not on there?
Lord Murray of Blidworth (Con)
Plainly, that was an issue that the noble Lord should have raised—and no doubt did raise—during the debate on the Elections Bill. It is quite a long way from the topic of this Question, which is about the strikes by the PCS.
Lord Kamall (Con)
Can my noble friend the Minister, having gone through that extensive list, say whether the department has made any estimate of how many people do not have any of the forms of documentation that he listed?
Lord Murray of Blidworth (Con)
Well, of course, elections fall within the Department for Levelling Up, Housing and Communities rather than the Home Office, but I am delighted to make that inquiry and write to him, and deposit the answer in the Library of the House.
Lord Rennard (LD)
My Lords, following the question from the noble Lord, Lord Lexden, is the Minister aware of the different political culture in Northern Ireland, and the fact that in the 1983 general election there were clear justifications for the introduction of some form of ID? There has been no such justification in Great Britain. The returning officer for Northern Ireland said that, after the introduction, it took at least 10 years for turnout levels to return to their previous levels, as a result of the introduction of ID. The Minister read a list; as a canvasser, I would not be able to read out that list to everyone on the doorstep—but the Post Office list is a very good list and it would extend the right to vote to many more people.
Lord Murray of Blidworth (Con)
I am afraid that I do not accept that there is no need for the voter identification provisions. In any event, as I say, those matters have been approved by the other place and by this House—so that, I am afraid, is that.
Baroness Hussein-Ece (LD)
My Lords, can I ask the Minister what he is doing, what the Government think and what assessment they have made about postal votes, because they are not monitored in the same way and ID does not have to be produced in the same way? Voter fraud instances have been higher in postal votes than they ever have for people voting in person.
Lord Murray of Blidworth (Con)
I am afraid that this question, too, is an awfully long way from the Private Notice Question in relation to the action taken in the Passport Office. As to forms of identity for voting in person at polling stations, if the noble Baroness wishes to put a Question about postal voting, she can put it to the relevant Minister in DLUHC.
Lord Vaux of Harrowden (CB)
My Lords, like many in this House, I am registered to vote in two places. I have had no information from either local authority about the need for voter ID yet. It is only a number of weeks before the election; at what point are people going to be informed by local authorities of both the need for voter ID and the ability to apply for a local authority voting card?
Lord Murray of Blidworth (Con)
The noble Lord is perhaps fortunate in that I received notice last week, together with my council tax bill for the coming year. I understand that that is fairly wide practice.
Lord Dholakia (LD)
Is the Minister prepared to instruct those conducting elections to monitor those people who have been refused the right to vote, and publish those figures?
Lord Murray of Blidworth (Con)
As I say, that is not a Home Office issue, so I am afraid that the answer is no: I have not given that instruction. No doubt the noble Lord can make inquiries of the Department for Levelling Up, Housing and Communities.
Viscount Waverley (CB)
European citizens are, I guess, allowed to vote in these circumstances, and they only have European documents. The Government may wish for these to be added to that already extensive list.
Lord Murray of Blidworth (Con)
Yes, indeed; the noble Viscount is right. EU and EEA passports and identity cards are valid.
Baroness Hussein-Ece (LD)
The noble Lord asked me to write to him because my question was not apparently pertinent to the Question on the Order Paper. Could he confirm that he speaks for the Government?
Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2023
Lord Murray of Blidworth Excerpts(1 year, 2 months ago)
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Lord Murray of Blidworth
That the Grand Committee do consider the Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2023
Relevant document: 30th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, I am very pleased to be able to present these draft rules, which deal with two vitally important issues, to the Committee. I will first touch on the provisions in relation to deprivation of citizenship in this instrument.
Keeping the public safe is a top priority for the Government. Deprivation of citizenship, where it is conducive to the public good, is reserved for those who pose a threat to the UK or whose conduct involves very high harm. It is key to our ability to preserve the UK’s national security. The Committee will recall that the deprivation measures in the Nationality and Borders Act attracted much considered and thorough debate. This House and the other place agreed that, in cases where the Secretary of State intends to make a deprivation order on the grounds that it is conducive to the public good without giving notice, an application must be made to the Special Immigration Appeals Commission, or SIAC, which will consider the Secretary of State’s reasons not to give notice.
In November 2022, we took a first step towards implementation of this process by amending the Special Immigration Appeals Commission Act 1997, giving the Lord Chancellor powers to amend procedure rules in relation to these applications. We now intend to make the required amendments to the Special Immigration Appeals Commission (Procedure) Rules 2003, which is the purpose of this instrument.
This instrument sets out a clear framework for the Special Immigration Appeals Commission and the Secretary of State when dealing with such applications. It makes clear the information an application is required to contain and makes provision for the Secretary of State to vary or withdraw an application. It confirms the Secretary of State as the single party to proceedings and makes provision to appeal a determination of the Special Immigration Appeals Commission where necessary. The instrument also sets out that the commission must give a determination within 14 days of receipt of an application or its variation. This reflects the fact that the Secretary of State may have to act quickly in the interests of national security. The instrument is the final stage in implementing the safeguards relating to Section 10 of the Nationality and Borders Act 2022, which were agreed in the passage of that Act.
Turning to credibility statements, Sections 19 and 22 of the 2022 Act create additional behaviours that should result in an asylum or human rights claimant’s credibility being damaged. These includes a requirement for decision-makers to consider the late provision of evidence in response to an evidence notice or a priority removal notice, without good reasons, as behaviour that should be damaging to a claimant’s credibility.
As part of this suite of measures being introduced to encourage the timely provision of evidence in support of asylum and human rights claims, Sections 19 and 22 of the 2022 Act also establish a requirement for both the Special Immigration Appeals Commission (Procedure) Rules and the asylum and immigration chamber procedure rules to secure that when judges dispose of asylum and human rights decisions, and where credibility issues arise, they must include in their decisions a statement on how they have taken account of all potential credibility-damaging behaviours when reaching those decisions. These changes to the Special Immigration Appeals Commission (Procedure) Rules effectively secure in rules what judges are already required to do, according to the current case law.
The instrument and the creation of new procedure rules, however, make it abundantly clear what judges are required to do. This will assist in making sure that there is clear and efficient decision-making. I commend these rules to the Committee.
Baroness Hamwee (LD)
My Lords, I hope that the Committee and the Deputy Chairman of Committees will understand that my sitting down today is not a sign of any disrespect to any Member or to the Committee. I thank the Minister for his introduction to this instrument. I do not think he will be surprised to know that I am not thanking him for the instrument itself, and very much not for the Nationality and Borders Act.
Those of us who find difficulty with proceedings in any number of areas, particularly when they are closed, are generally assured by the Government that we should not worry because there is judicial oversight. I cannot recall whether this was so in the case of Section 10 of the Nationality and Borders Act, but the instrument points up the hollowness of such an argument. As the Minister explained, Section 10 provides that the Secretary of State does not have to give notice of deprivation of citizenship in certain circumstances, and, if she
“reasonably considers it necessary, in the interests of”
certain matters,
“that notice … should not be given.”
That is in new Section 40(5A)(b) of the 1981 Act, which includes
“the relationship between the United Kingdom and another country”.
I understand the Minister to have included that in his list of high harms. It is quite easy to think of examples of what might be necessary so as not to annoy another state, which I think would come within the relationship between the UK and another state. Can the Minister tell the Committee whether he expects this power to be used very narrowly, and confirm that proportionality will apply?
We are reliant on the commission to assess the reasonableness of the view of the Secretary of State but even the commission does not have a free hand. Under Section 25E in the new Part 4A,
“The Commission must determine the application on paper without a hearing”.
My second question is: why is it “must” and not “may”? If we are to have any confidence in the process as a whole, should we not trust the commission to decide for itself whether determination on paper is appropriate? Can the Minister explain this? Can he explain to the Committee what will happen if the commission, having seen the paper application, has questions of the Secretary of State and wants to hear from counsel on her behalf?
I admit that I have no experience in this, other than debates in your Lordships’ House over the years and briefings from professionals and others involved in the process, but it seems that it is all too easy for such an application to become completely formulaic. Once there is a formula which is considered to pass the not “obviously flawed” threshold or test, that will go to the commission without, apparently, its being able to say, “Yes, but”. The “obviously flawed” test is in the new Schedule 4A. Is it beyond the bounds of possibility that the Home Secretary herself could want a hearing? We will never know because there is no one to ask. We are not even getting that close to the territory of closed hearings and special advocates here.
I find it difficult to understand what role this appeal court would be left with. We will know next to nothing—probably nothing—about the use of these powers. Paragraph 14 of the Explanatory Memorandum tells us:
“As the Home Secretary decides each case personally and due to the very low number of cases expected to be affected by these provisions, no specific monitoring or review of these measures will be undertaken.”
In this situation, reporting is almost a synonym for monitoring. Can the Minister at least give an assurance that there will be reporting? I cannot see that it could be very difficult. What harm would be caused? I do not think that I need to spell out why a report in the public domain is desirable and essential. So often we are told, not only by Home Office Ministers but from the Dispatch Box, that there is no need for a review of a provision in primary legislation, because there is an automatic, periodic review of all legislation that the Government put through. However, no review of the measures means no review of Section 10. In our view, there should be reporting, not just of numbers but, for instance, of whether men or women are affected by deprivation orders, and, importantly, whether each individual has, or is considered to have, dual nationality. Indeed, can the Minister confirm—I appreciate that it is a bit beyond this instrument—whether the powers will be used only in the cases of individuals who are citizens of another state? Does the appetite for secrecy really mean that the state is protecting us?
I have been doing my best to avoid reference to an ongoing case, and I do not seek to draw the Minister into it—I know that he will not be drawn in—but it is justifiable to ask about the cohort of women known to be in a camp in Syria, who are held there because of their IS connections. Can one really say of them that their whereabouts are unknown? They are not going anywhere; they are known to be in the camp, although they cannot contact lawyers. For reasons the Grand Committee will understand, given his widely reported comments last month regarding a case before SIAC, have the Government consulted the current Independent Reviewer of Terrorism Legislation? This is about legislation; Jonathan Hall is independent.
I have referred to judicial oversight. What I take from the instrument is that oversight of the process can be no more than minimal, and therefore oversight of the process is eliminated.
Lord Murray of Blidworth (Con)
My Lords, I am grateful for those two considered contributions. I obviously appreciate the strength of feeling about deprivation of citizenship, but perhaps the Committee will bear with me if I repeat what I said earlier: maintaining our national security is the priority for the Government. It is vitally important that we are still able to take deprivation action, even if we do not know where a person is, to protect the public and keep our country safe. This instrument brings us closer to being able to do that, but let me explain the type of case we envisaged being covered by the new process of referral to the Special Immigration Appeals Commission.
Imagine someone who has been spying for another country against the UK and is now living at an unknown address in that other country; or the head of an organised crime group whose current whereabouts are known only through a police informant, and to use the address would put the life of that informant at risk; or a supporter of Daesh who has committed terrorist attacks and is hiding in the mountains of Syria. Such people pose a direct threat to the safety and security of the UK, and it simply cannot be right that our hands are tied because we cannot take away their British citizenship without giving them notice of the decision. Of course, depriving a person of the privilege of being British is a very significant thing to do. That is why the Nationality and Borders Act 2022 provides for judicial oversight of such decisions.
I will now take the opportunity briefly to address the additional points raised. I turn first to the points raised by the noble Baroness, Lady Hamwee. I was asked initially to confirm whether the powers would be used in a narrow and proportionate way. That is certainly my understanding. The application of deprivation powers is clearly a serious use of state power and will be done only in cases which warrant that significant step. I was then asked about reporting. I imagine that the reference there was to reporting statistics in relation to deprivation. Some statistics are certainly provided but, for obvious national security reasons, detailed statistics cannot be. The Government take very seriously their obligations to keep these matters under review.
I was asked specifically whether the Independent Reviewer of Terrorism Legislation was consulted in respect of this measure. I am afraid I do not have the answer to that question to hand. I imagine that there has been some engagement with this legislation, but I will of course find out and write to the noble Baroness in respect of that question.
I turn to the questions raised by the noble Lord, Lord Coaker. His first was on whether, in the rules, the phrase “Secretary of State” referred to the Secretary of State for the Home Department. I think that phrase is subject generally to the definition in the Interpretation Act: that it applies to any of His Majesty’s principal Secretaries of State. But in practical terms, I certainly understand that the power will be exercised by the Secretary of State for the Home Department.
I was then asked as to the extent to which the existence of the proceedings should be made public. The view is taken that these proceedings are generally, for reasons of national security, best done in a closed environment and, we would suggest, best done on the papers. In the circumstances of an application to commence proceedings without giving notice, the Home Office is the only party to proceedings and, given that this is about the administrative process of giving notice, it is unnecessary to have an open hearing with several judges. The individual will not be aware of the deprivation decision at this point and will not be in a position to give legal direction. The Special Immigration Appeals Commission will determine whether the Secretary of State’s decision not to give notice is “obviously flawed”, in line with judicial review principles. I hope that answers the next question which the noble Lord asked me, which was, “What is obviously flawed?”. It is something that would be upset on judicial review for being unlawful in the public law sense, so when it would be unreasonable or unlawful.
I was asked whether legal aid will be available. Obviously, in the case of no notification, it is hard to envisage a situation, given the lack of co-operation of the other party, where legal aid would be appropriate. But certainly, in principle, in relation to deprivation proceedings, legal aid is available and there are no plans to alter that.
As to the right of appeal, obviously, SIAC itself is an appellate body, in that one is appealing against or challenging a decision of the Secretary of State. Further appeals under SIAC are possible under the procedure rules; indeed, we have seen in various recent cases the involvement of the Court of Appeal.
I was asked about the time for making a determination described in Regulation 7, at new paragraph 25E of the rules, the provision that
“The Commission must determine the application no later than 14 days after”
receipt of the application. That period was agreed with the chair of the Special Immigration Appeals Commission, as it was suggested that it was an appropriate time for the chair to consider that application, balanced against the potential urgency. Of course, the only question the chair is considering there is whether it is appropriate for notice to be served—that is, whether the Secretary of State’s application should succeed.
I turn to the question from the noble Lord, Lord Coaker, in respect of Rule 25B set out in Regulation 7 and, in particular, the question of the meaning of Rule 25B(3). If the Secretary of State has the information listed, it must be provided, but if the Secretary of State does not have it, the Secretary of State does not have to provide it, and that does not prevent an application going ahead. Ultimately, the Special Immigration Appeals Commission will decide whether it has sufficient information to decide the application. Clearly, if it decides that it does not have adequate information, it will refuse the application.
Lord Coaker (Lab)
If I understood the Minister correctly, he just said that if the Secretary of State does not know the information, the Secretary of State does not have to provide it to SIAC, but the Secretary of State is applying to SIAC for a deprivation of citizenship. How can you deprive it if you do not know what it is?
Lord Murray of Blidworth (Con)
This is the application process to proceed without serving notice. The Secretary of State may know, for example, the person’s name, the person’s nationality or nationalities and the relevant Home Office reference, but not the person’s correct date of birth. As I understand the operation of sub-paragraph (3), that means that the absence of that one particular, given that the Secretary of State does not know it, does not invalidate the application.
Lord Coaker (Lab)
I was not asking about date of birth, was I? I was asking about where the Secretary of State does not know the nationality. I appreciate the case where you do not know all of the name, and so on—but it seems to me pretty key, if you are starting the process to deprive someone of citizenship but you do not know what their nationality is.
Lord Murray of Blidworth (Con)
It is clearly right—this comes back to another question I was going to deal with in a moment—that the power can be exercised only in cases of persons entitled to more than one nationality. The question is whether the department knows of an entitlement to British nationality and an entitlement to another nationality. If there are other potential nationality entitlements, it may be that, if those are not known, their absence from the application will not of itself invalidate the application. That is, as I understand it, the intent of that sub-paragraph.
Lord Coaker (Lab)
I do not want to dance on the head of a pin, but now the Minister has got into the potential for denying potential nationalities, and I would say that that is fraught with difficulties. I will leave it there—but it is an interesting point about the need for clarity. The Home Office not knowing what someone’s nationality is and being able to miss that out from a SIAC appeal as the basis of a process leading to, at some point, depriving someone of nationality or citizenship, seems a bit much.
Lord Murray of Blidworth (Con)
I can certainly write to the noble Lord about it, but the short point is this: if SIAC is concerned, on the balance of probabilities, that somebody has only British citizenship and not another, it will not make an order of deprivation. I hope that, to some extent, answers his question.
Lord Coaker (Lab)
I think the Minister is saying that it is perfectly open to SIAC to reject that application on the basis that the Government do not know what they are doing with respect to that nationality and that they should come back at a future date when they have done a bit more work on it.
Lord Murray of Blidworth (Con)
Indeed, as with any court.
In respect of the noble Lord’s question on Rule 47 as to credibility, the question being whether a claimant’s good reasons for responding late to a priority removal notice would be taken into account in cases that go to SIAC, the answer is yes.
To pick up one point from the noble Baroness, Lady Hamwee, on the use against dual citizens, it is right and clear in the statutory regime that an order using a deprivation power cannot be made that would have the effect of rendering a person stateless, hence the need for two nationalities, except that there is a very limited provision in Section 40(4A) of the Act, but that power has not been used to date. In any event, deprivation on conducive grounds is used sparingly and against those who pose a serious threat to the UK. It is correct that the conducive power is limited so that it can be applied only to those who are dual citizens or where there are reasonable grounds for believing that the person can become a national of another country. Parliament chose to enact the power on that basis to avoid the prospect of leaving individuals stateless, which would be contrary to the UK’s commitments under the 1961 statelessness convention.
Baroness Hamwee (LD)
If the Minister is coming to his closing paragraph to urge this instrument, then I am afraid that I have a number of questions to remind him of. However, I am glad to hear what he said about dual nationality. I was concerned because I thought he used the phrase “potential nationalities”. I do not know how one can potentially be a national of a particular country.
I will run through some points that I do not think he has been able to pick up. I raised the proportionality point in connection with Section 40(5A)(b)(iv), which is when the Secretary of State considers it necessary in the interest of the relationship between the UK and another country. I hope the Minister can confirm that there will be proportionality in that, rather than the general point he made.
I do not think the Minister answered the question on “must” deal with the matter on the papers rather than “may”, nor my question on whether the commission can call for more information and can even ask to hear from the Secretary of State.
The Minister referred to paragraph 14 of the Explanatory Memorandum. He might need to take this away, but to repeat, we are told by this that, because there is expected to be a “very low number” of cases,
“no specific monitoring or review … will be undertaken”.
My question was about reporting and the Minister answered on reporting in a general way. I would be glad to hear that there will be specific reporting on these deprivation without notice applications.
Lord Murray of Blidworth (Con)
In relation to Rule 25E, the noble Baroness is quite right. It is imperative that the commission determines the application on paper and without a hearing. As I elucidated a moment ago, that process is deliberately framed so that it can be resolved quickly because of the national security issues implicit in a deprivation decision. I am afraid that it is a “must” for a reason, and not a “may”. Clearly, SIAC, like any court, is able to make a decision on the information available to it and, if it feels that it lacks information, it is entirely open to it to ask for further information from the party appearing before it. I hope that that answers the question.
On the dual nationality point, the word “potential” is significant. The question in the statute is whether a person is eligible for citizenship of another country. That gives rise to the power to deprive under Section 40(4A), which is the power that I mentioned, which has yet to be deployed to date. As to reporting, I hear the noble Baroness’s question and I shall find out further detail and write to her in respect of it. I hope that I have therefore addressed the questions posed.
I want to be absolutely clear that the power to deprive an individual of citizenship has been possible for over a century. Section 10 of the Nationality and Borders Act does not change the reasons for which a person can be deprived of their citizenship, nor does it remove a person’s right of appeal. It is simply about the mechanics of how a deprivation decision is conveyed to the individual concerned and recognises that, in certain exceptional circumstances, it may not be possible to give notice.
The Home Office will always try to serve any deprivation notice at the point of a decision, including providing information about the person’s statutory appeal rights. Where that is not possible, and the person later makes contact with the Home Office, they will be issued with a decision notice and an explanation of their appeal rights. Section 10 of the Nationality and Borders Act clarifies that the timescales for lodging an appeal in these cases starts from when they are given the notice of the deprivation decision and not when the decision was first made.
In conclusion, this instrument is in the final stage of implementing the safeguards, as noble Lords noted, which will hold the Government to account in relation to decisions to deprive a person of citizenship without first giving them notice. It will also ensure that the Special Immigration Appeals Commission is required to include credibility statements in any relevant decisions that it makes that dispose of asylum and human rights claims. I commend the regulations to the Committee.
EU Settlement Scheme
Lord Murray of Blidworth Excerpts(1 year, 2 months ago)
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Baroness Ludford
To ask His Majesty’s Government, further to the High Court judgment of 21 December 2022, what plans they have to allow EU citizens who hold pre-settled status under the EU Settlement Scheme (1) to keep their rights under the Withdrawal Agreement when that status expires, and (2) to automatically obtain permanent residence rights without making a second application to that scheme.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
We have informed the High Court that we do not wish to pursue an appeal against the judgment. This avoids continuing uncertainty for those affected. We are working to implement the judgment as swiftly as possible, and we will provide a further update in due course.
Baroness Ludford (LD)
My Lords, it is nearly three months since the High Court found that the Government’s interpretation of the withdrawal agreement was wrong in law in the way it constructed the EU settlement scheme for EEA citizens to get a permanent residence right. I suggest that the Government need to undertake some consultations with parties and groups with relevant expertise, such as the3million and the Independent Monitoring Authority for the Citizens’ Rights Agreements, to ensure that any changes now uphold—rather than undermine, as in the past—the rights under the withdrawal agreement. Are the Government undertaking such consultation? Can the Minister clarify what “in due course” really means?
Lord Murray of Blidworth (Con)
I can confirm that work is proceeding to implement the judgment. As the noble Baroness will have noticed, the High Court accepted, in paragraphs 188 and 191 of its judgment, that
“before and after the conclusion of the WA”—
the withdrawal agreement—officials in the European Commission
“understood, and … accepted, the United Kingdom’s intention to require”
pre-settled status-holders
“to apply for settled status”.
In the High Court’s view, this was embarrassing for the Commission, but it did not alter the fact, as was contended by the Commission, that the text of the withdrawal agreement did not require such a further application for pre-settled status, and therefore the High Court found as it did. The Government will certainly implement its findings.
I add that the EU settlement scheme has been a great success, with over 7 million applications received and 6.9 million applications concluded as of 31 December 2022.
The Earl of Kinnoull (CB)
My Lords, the High Court judgment was very much in line with the recommendations and spirit of the multiple reports on citizens’ rights of the European Union Committee and the European Affairs Committee. In the reset of the scheme, will the Government make provision for another of our strong recommendations, made multiple times in these many reports, for the option of physical proof of status?
Lord Murray of Blidworth (Con)
As the noble Earl rightly observes, the High Court judgment upheld both limbs of the IMA challenge: first, that the withdrawal agreement residence right of a holder of pre-settled status does not expire for failure to make a second application to the EUSS; and, secondly, that a pre-settled status holder acquires the right to permanent residence under the withdrawal agreement automatically once the conditions for it are met. The intention has always been to provide digital proof of status, and that remains the department’s view.
Lord Hannan of Kingsclere (Con)
My Lords, some people will always blame Britain and never Brussels. One of the reasons that this case came to court is because we have the independent monitoring authority, run by Sir Ashley Fox, a former colleague of mine and of the noble Baroness, Lady Ludford. It has a budget of £5.5 million and 50 staff and has been working assiduously to ensure that EU nationals in the UK enjoy their full rights under the treaty. There is no equivalent body. It is supposedly the Commission that does it on other the side with a couple of people there.
Lord Murray of Blidworth (Con)
I entirely agree with my noble friend and can reassure him that the department works very closely with our colleagues in Brussels in relation to the protection of the rights of UK nationals within the European Union.
The Lord Bishop of Southwark
My Lords, does the Minister agree that a positive move to implement the High Court judgment may help in bilateral representations where British citizens find themselves disadvantaged by the application of the immigration laws in certain EU countries where residence was not hitherto a problem?
Lord Murray of Blidworth (Con)
I entirely agree with the right reverend Prelate that clearly it helps that the Home Office works very closely with those in the Commission in relation to the respective rights of citizens in each other’s countries.
Lord Hannay of Chiswick (CB)
My Lords, will the Minister give an absolute undertaking that the remedial action which he referred to in his reply to the noble Baroness, Lady Ludford, will be completed and enforced by the date which the one that was struck down would have come in this autumn? Will he give an absolute undertaking that that will be remedied by then? Does he recognise that it might be more sensible if the Government paid a little more attention to the IMA, which was actually set up to give advice on how the withdrawal should be enforced, rather than forcing it to take them to court?
Lord Murray of Blidworth (Con)
I can certainly confirm that it is our intention to abide by the judgment. We work very closely with the IMA and will continue to do so.
Lord Cormack (Con)
My Lords, has not the Prime Minister, two weeks ago over the Northern Ireland protocol and last week with a highly successful visit to France, shown the tone that we should now adopt towards our European friends and allies and former partners in the EU?
Lord Murray of Blidworth (Con)
Yes, indeed. It is in that spirit of co-operation that the Government have determined that the appropriate method of resolving this case is to accept the present position—notwithstanding that permission to appeal was granted—to accept the judgment of the court and to make arrangements so that the scheme matches the findings of the court.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the High Court’s decision affects about 2.6 million people granted pre-settled status. Will the Government now ensure that the plan to be put in place will be quick and that settled EU citizens do not risk having their right to live here put in any jeopardy? Can the Minister say what he means by “in due course”?
Lord Murray of Blidworth (Con)
I can confirm to the noble Lord, Lord Ponsonby, that we will certainly not put in jeopardy any such residence rights. I am afraid that I am unable to confirm at this stage what “in due course” might mean, but I hope to return to the House fairly shortly to confirm the position.
Carriers’ Liability (Amendment) Regulations 2023
Lord Murray of Blidworth Excerpts(1 year, 2 months ago)
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The Earl of Erroll (CB)
My Lords, would it be all right for me to say a few words because the last point on duress interests me? I happened to catch a bit of a programme the other night on the Border Force. They had found some people in the back of a curtain-sided lorry. What is interesting is how they got in there. You would not have been able to detect that if the driver or no one else had been present when they got in. They had very cunningly cut the wire. Once they were in, they put it back together again. It was undetectable. I would have thought it would have been very reasonable for the driver to say that he had absolutely no idea that they were in there. In fact, the Border Force said the same to him and that they were not going to go after him as the people were very cunning.
This is the trouble. There will be certain types of lorry where it will be virtually impossible for the driver to detect that people have got in. I do not think that you should have a single defence, virtually an absolute defence. Life is complicated. You have got to be able to have a reasonable excuse.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, I thank all noble Lords who have spoken in this short debate and acknowledge the particular concerns of the noble Lord, Lord Berkeley. The measures in these two instruments form part of the Government’s overall efforts to crack down on illegal migration. I look forward in time to debating the latest part of the work, the new Illegal Migration Bill, which noble Lords have referred to and which, of course, is presently being debated in the other place.
The regulations that are the basis of today’s discussions reform the clandestine entrant civil penalties scheme, which has existed since 1999 under the previous Labour Administration. The scheme has not been reformed, as the noble Lord, Lord Ponsonby, rightly observed, and the maximum penalty levels have not changed, in over 20 years. The scheme is designed to complement law enforcement activity against criminals. It does this through tackling negligence by people who are not criminals but whose carelessness none the less means that they are responsible for a clandestine entrant gaining access to a vehicle.
Illegal migration is facilitated by serious organised criminals exploiting people and profiting from human misery. A significant number of people who arrive in the UK by tourist and freight transport routes through concealment in vehicles have had their entry illegally facilitated by organised criminal gangs. This method of entry continues and endangers the lives of those involved. In many cases, this is a result of criminal gangs and opportunistic migrants taking advantage of unsecured, or poorly secured, vehicles to smuggle people into the UK clandestinely. To respond to the point that the noble Lord, Lord Berkeley, raised, “clandestine” and other terms are defined in statute in Sections 31A and 32 of the Immigration and Asylum Act 1999. To answer the noble Lord’s second question: yes, this applies to those travelling from the Republic of Ireland.
I agree with the noble Baroness, Lady Ludford, that we need to stop the dangerous crossings. That is the purpose of the proposed legislation. Sadly, safe and legal routes themselves are no answer as a deterrent. The Government were concerned that the existing clandestine entrant civil penalty scheme was not having the required effect. The data showed that drivers and other responsible persons frequently neglected to take the steps required to secure vehicles and that clandestine entrants continued to use these routes to come to the UK. Action was needed to remedy this.
These measures will disrupt the attempts by organised criminal gangs and opportunistic clandestine migrants to take advantage of unsecured or poorly secured vehicles to enter the United Kingdom illegally. Instead, this may prompt potential clandestine migrants to claim asylum in a safe country and to get quicker access to any help and support that they may require.
On the point raised by the noble Baroness, Lady Ludford, we continue to have productive dialogue with the Road Haulage Association, and I can confirm that our officials are speaking at one of its conferences on 22 March.
We have made it clear that, where checks cannot be carried out, they do not have to be carried out. The checklist that we have created covers all eventualities; some of them will not be relevant in particular circumstances.
As the noble Earl rightly observed, duress remains a statutory defence. That was reflected in the original scheme in 1999. We will consider whether drivers and companies carried out adequate checks as part of mitigation, which could see the level of fine reduced. This would cover the circumstances such as those described by the noble Earl.
I am of course grateful for the support of the noble Lord, Lord Ponsonby, for these regulations. It is for the reasons that I have already described that the United Kingdom operates a scheme to tackle illegal migration. The scheme means that, when clandestine entrants are found in a vehicle, a penalty can be imposed on any responsible person connected to the vehicle in question. In response to the point raised by the noble Lord, Lord Berkeley: yes, these measures match the risk and demand.
The reforms set out in the regulations are born out of the Government’s concern that the scheme is not having enough of an effect. I say that because, during the financial year 2020-21, there were 3,145 incidents where clandestine entrants were detected concealed in vehicles, despite the Covid-19 pandemic causing a lower volume of traffic. This rose to 3,838 incidents during the financial year 2021-22.
Drivers are not taking all the steps required to secure vehicles, and clandestine entrants are continuing to use these routes to enter the UK. It is for this reason that the Government committed to reviewing and overhauling the scheme as part of their New Plan for Immigration. A public consultation on that plan was held from 24 March to 6 May 2021. The Government, as noble Lords will recall, then introduced changes to the scheme through primary legislation in the Nationality and Borders Act 2022. The changes in that primary legislation narrowed the statutory defences available to those who had carried a clandestine entrant. In Committee on that Bill, those measures were the subject of an amendment proposed by the noble Baroness, Lady Hamwee, who is not in her place today. That matter was canvassed during the passage of the Bill.
The 2022 Act introduced a new civil penalty for failing adequately to secure a goods vehicle, regardless of whether a clandestine entrant has been found. The final changes brought into effect by these regulations were made following a further public consultation held between 18 July and 12 September 2022. The Government carefully considered representations made by respondents about the possible impact of our proposed reforms, including on trade, supply routes and recruitment. The Government are committed to working with individuals and companies to support growth while delivering a strong and effective border. In short, we think it is appropriate to increase the maximum penalty levels for the existing offence of carrying clandestine entrants, as they have not changed, as the noble Lord, Lord Ponsonby, rightly observed, since 2002. It is also appropriate to set meaningful levels of penalty for the new offence of failing to secure a goods vehicle, to incentivise compliance with our security standards.
Both reforms have been designed with a view to cracking down on repeated instances of negligence, as opposed to unfairly penalising those who have striven to comply with the regulations. For this reason, the reformed scheme has introduced a strikes system for both offences, geared at targeting repeat offenders, with the highest penalty levels being applied only in cases where repeated instances of negligence are evident. Where a person or company is being fined, we have set out in a new statutory code of practice the mitigating circumstances in which they could be eligible for a reduction in the level of their penalty.
The maximum penalty for an individual responsible person for a first incident of carrying a clandestine entrant will be £6,000 per clandestine entrant. This rises to a maximum of £10,000 for a second and any subsequent incidents in the past five years. The maximum penalties in aggregate will be £12,000 and £20,000 for each offence respectively. The maximum penalty for an individual responsible person for a first incident of failing to adequately secure a goods vehicle will be £1,500. This will rise to a maximum of £3,000 for a second incident in the past five years, and to a maximum of £6,000 for a third and any subsequent incidents in the past five years. The maximum penalties in aggregate will be £3,000, £6,000 and £12,000.
A responsible person being fined for carrying a clandestine entrant could be eligible for a reduction of 50% in the level of their penalty if they have complied with the security regulations. A further reduction of 50% could be applied if they are a member of the civil penalty accreditation scheme. In respect of failing adequately to secure a goods vehicle, a responsible person who is not the driver and who was not present during the journey of the vehicle or the detached trailer to the UK could be eligible for a 50% reduction in their penalty if they acted to ensure compliance with the security regulations. I hope these measures go some way to assuage the concerns that the noble Lord, Lord Berkeley, elucidated. A further reduction of 50% could be applied if the responsible person is a member of the civil penalty accreditation scheme.
For both offences, individuals and companies will be able to apply for means testing to be applied when their level of penalty is being determined. The Secretary of State will be able to take into account those and any other factors they think appropriate in finalising the level of penalty to be levied. Indeed, they will retain a discretion not to impose a penalty at all in appropriate cases. The Government want people and companies to avoid being fined, and they can do so by complying with the security standards. We have set these in the new statutory regulations presently before the House. We have promoted adherence to the standards through further engagement with drivers and industry. This includes relaunching the civil penalty accreditation scheme I just mentioned, through which members are eligible for a potential 50% reduction in any fine.
The Government believe that this package of measures strikes the right balance between recognising the impact of penalties on individuals, companies and industry and incentivising compliance with our security standards and protecting border security. We are focused on delivering a fair and effective immigration system and, as I have said, these measures will allow us to strike the right balance in pursuit of that aim. With all that, I ask the noble Lord to withdraw his Motion.
Lord Berkeley (Lab)
I am grateful to the Minister for his fairly comprehensive response and to colleagues who have contributed to this short debate. I am certainly not against updating the penalties, because penalties are necessary, but there are one or two things about this that still concern me. The Minister summarised all the different people who could be involved in receiving penalties, if offences can be proved, and that reflects the different organisations that the logistics industry has these days, which I think we all accept.
Women’s Safety
Lord Murray of Blidworth Excerpts(1 year, 2 months ago)
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Baroness Donaghy
To ask His Majesty’s Government what steps they are taking to improve women’s safety (1) from domestic violence, and (2) in the streets.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
The Government are committed to tackling domestic abuse and making our streets safer. We have provided £125 million through the safer streets and safety of women at night funds. For example, Lambeth Council has received just over £1 million to deliver interventions including improving street lighting and CCTV. On 20 February, we announced new measures to crack down on domestic abusers, including the locations of domestic abuse protection order pilot sites.
Baroness Donaghy (Lab)
I thank the Minister. The organisation Refuge has said there is a “fragile funding landscape” for specialised domestic abuse services, even though they are statutory, and more than 60% of referrals are turned away. Financial support for community-based support services such as advocacy and support for children is particularly dire as it is non-statutory. What steps will the Government take to provide better funding for the specialist domestic abuse service sector? Will the forthcoming victims Bill introduce an adequate, sustainable funding offer for specialist domestic abuse community-based services?
Lord Murray of Blidworth (Con)
I thank the noble Baroness for her question. On 20 February, a package of measures was announced by the Home Secretary to tackle perpetrators and give better support to victims of domestic abuse. As the noble Baroness will know, the Government committed to legislate to add controlling or coercive behaviour, with a sentence of 12 months or more, to the list of offences eligible for management under MAPPA, and to ensure that all offenders managed under MAPPA are recorded under MAPPS when it is launched in 2024. She will know that MAPPS is replacing the violent and sex offender register. All these measures, together with the development and piloting of the domestic abuse harm risk assessment tool so that police forces can quickly identify the highest-risk perpetrators and take appropriate action, demonstrate the Government’s dedication to addressing these issues.
Baroness Jones of Moulsecoomb (GP)
My Lords, one of the first areas the Government have to address is the sexism and misogyny in police forces all over the UK. What specific measures has the Home Office suggested for all police forces? If the Minister cannot reply, I am happy to have a letter left in the Library.
Lord Murray of Blidworth (Con)
I am conscious that that is an issue to which the Home Office is paying close attention in light of the recent cases. I am happy to write to the noble Baroness about it and to deposit that letter in the Library.
Baroness McIntosh of Pickering (Con)
My Lords, is my noble friend convinced that the current rules on indecent exposure go as far as they possibly could? Can he think of a reason why the perpetrator who went on to murder Sarah Everard was not apprehended and prosecuted for earlier offences of indecent exposure, which could have prevented her sad death?
Lord Murray of Blidworth (Con)
I am conscious that the case to which my noble friend alludes is a terrible one, and officials in the Home Office are very alive to it. The safer streets fund has worked with various local authorities to reduce the risk of incidents of indecent exposure. In particular, one project at the Basingstoke Canal had the effect of reducing incidents by 55%. Clearly there is much more to be done, but I assure my noble friend that that work will continue.
Baroness Janke (LD)
My Lords, does the Minister accept that confidence on the part of women that sexual and violent crimes against them will be properly investigated is at an all-time low? If so, what will be done to make sure that the police focus on the crime and the offender rather than on shredding and undermining the reputation of the victim?
Lord Murray of Blidworth (Con)
The ambition of the department is to ensure that women and girls have absolute confidence in the police. I appreciate the difficulties that have been caused by recent court cases. I should add that in January we launched a fund worth £36 million for police and crime commissioners to increase the availability of interventions for domestic abuse perpetrators. These aim to improve victims’ safety and to reduce the risk posed by the perpetrator. I hope all these measures will generate increased confidence among women and girls.
Baroness Kennedy of The Shaws (Lab)
My Lords, I hope that on International Women’s Day women’s voices might be given a little more prominence. I want to raise the issue of sexual harassment in public places. While it is very clear that not all men sexually harass women in public spaces, it would be hard to find a single woman who has not experienced it at some point in her life. What is being done to address that? There has been a call for misogynistic sexual harassment in public spaces to be addressed as a crime and to be more effectively dealt with. It is one of those things that blight women’s lives. Social media has disinhibited people so that, in the very way that we are seeing this happen online, we are now seeing it increasingly experienced by women offline, and it leads on to more serious crime. What is the state going to do about introducing a law to protect women in the streets, at bus stops and on public transport as they go about their lives?
Lord Murray of Blidworth (Con)
I agree with almost everything that the noble Baroness has said. I am delighted to confirm that the Government will support the Protection from Sex-based Harassment in Public Bill, advanced by the right honourable Greg Clark, which would make public sexual harassment a specific offence. It provides that if someone commits an offence under the existing Section 4A of the Public Order Act 1986—that is, intentionally causing harassment, alarm or distress—and does so because of the victim’s sex then they could obtain a higher sentence of two years rather than six months.
Baroness Browning (Con)
My Lords, what monitoring is undertaken by the Home Office of those who have been convicted of either sexual offences or domestic abuse who subsequently go on to change their names?
Lord Murray of Blidworth (Con)
I know this issue has been raised in the House of Commons recently in a 10-minute rule Bill. It is certainly a matter that the Home Office has under review, and it may be something that we hear more about later.
Baroness Walmsley (LD)
My Lords, what are the Government doing to encourage more intelligent and public-spirited young women to join the police force? Would that not go a long way towards making women feel that when they reported sexual abuse they would have a more understanding ear at the end of the phone? It would make women feel much safer on the streets if they knew that a female police officer might be there to help them.
Lord Murray of Blidworth (Con)
I entirely agree, and there is much in what the noble Baroness says. I do not, I am afraid, have the statistics to hand as to the level of women among recent recruits to the police in meeting the 20,000 target that was in the last manifesto, but I can certainly find that out and write to her.
Baroness Thornton (Lab)
My Lords, following on from my noble friend Lady Kennedy, evidence suggests that the impact on victims of indecent exposure can be considerable, as visual sexual violence. If the report of Wayne Couzens’ indecent exposure had been taken seriously and acted upon, he would have been apprehended and would not have gone on to rape and murder Sarah Everard a few days later. In the past, the stereotype of a harmless and possibly mentally ill—but not dangerous—flasher has informed the view of this offence. Is it time to take the offence of indecent exposure more seriously, and how might that be achieved?
Lord Murray of Blidworth (Con)
Clearly, the first answer is the one I gave to the noble Baroness, Lady Kennedy, a moment ago. We are supporting the Bill brought by Greg Clark. There is also the money that has been spent under the safer streets fund and the safety of women at night fund. If I may return to the example of the funding for the Basingstoke Canal programme, it had a very effective method of tackling the crime of indecent exposure. I entirely agree with the noble Baroness that the impact of these offences has often been minimised in the past and we must not fall into that trap again.