Citizens’ Rights (European Affairs Committee Report)

Lord Wood of Anfield Excerpts

Monday 11th September 2023 Grand Committee

[Lord Wood of Anfield (Lab)]

My Lords, it is a pleasure to follow my noble friend Lady Anelay, and I am grateful to the noble Earl, Lord Kinnoull, for his excellent speech. I also want to say what a pleasure it was to serve under him on the EU Committee and the European Affairs Committee, which he chaired with distinction, good humour and balance for so long. However, I suppose that European affairs’ loss is the Cross-Benchers’ gain.

I was chair of the European Affairs Committee for six weeks. My tenure did not move markets in the way that someone else’s six-week tenure in charge in another place did. However, we managed to host witness sessions on developments regarding EU citizens’ rights since our July 2021 report, and sent the Home Secretary the 25 May letter that has been mentioned.

Brexit was always going to create difficulty and complexity for EU citizens in the UK and UK citizens in the EU, and many of the issues that have arisen have been addressed. However, far too many remain; some show no signs of improving after many years, and others are getting worse. In addition, as I will point out later, problems are still arising for UK citizens abroad and for EU citizens here in the UK as a result of new decisions that are being made, including some in the last few days, which I will talk about.

I want to touch on three legacy issues—the noble Earl, Lord Kinnoull, mentioned a couple of them. I will start with the backlog of cases. Estimates from the3million campaign group—I congratulate it on the excellent, persistent work it does on behalf of EU citizens in the UK—is that the backlog of applications for settled status will take three years to clear. Some 20,000 who applied before the original official deadline have been waiting over two years. This matters not simply for reasons of complexity and uncertainty. If your status is officially designated as “pending”, multiple rights are denied to you: you cannot replace your driving licence or get a new one, get a European health insurance card, apply for a national insurance number or sponsor family members, and multiple other problems arise if you want to prove your right to work or your ability to rent or to travel. Can the Minister please give us a sense of what is being done that has not already been done, say, a month ago to try to address this backlog?

With regard to the High Court’s decision of December 2022, I am afraid that the Government’s response is still inadequate. The court ruled that EU citizens can be required to make only one application for residence to secure their rights under the withdrawal agreement, so the Government’s requirement for a second application—from pre-settled to settled status—was contrary to that agreement. Furthermore, the court ruled that, once granted pre-settled status, EU citizens are automatically entitled to reside permanently here once they have lived continuously in the UK for five years.

As the noble Earl, Lord Kinnoull, said, nine months on from the judgment, we are still waiting for the Government to implement the requirement to automatically convert pre-settled status holders to settled status once they are eligible. When will that court-required change be introduced? Some people—not myself—suspect that the Government are deliberately treading water on the implementation of the terms of this judgment in the hope that they may not have to make any further remedial measures or changes before the election. I hope that the Minister can disavow that motive when he responds.

Secondly, applicants’ digital status still indicates that the rights of those with pre-settled status will expire after five years, when that is simply not true under the law. When will this be changed?

Thirdly, the Home Secretary’s response to our letter expressed a determination to continue with the policy of encouraging pre-settled status holders to apply for settled status, but the court made it clear that no rights can hang on such an application. Can the Minister explain why this is still government policy?

Looking to the future, there is the looming issue of the new ETIAS—electronic travel information and authorisation system—to be introduced in 2024. The Home Secretary’s reply to our letter states that,

“those with an existing UK immigration status, such as pre-settled or settled status, will not be required to obtain an ETA”.

That is good news, but they will still need to prove to airline and rail carriers that they have the formal status that means they are not required to have an ETA. Where does that proof exist? The answer is: in the advance passenger information system, which is not planned to be introduced until summer 2024, after ETAs have already begun to be introduced. Can the Minister explain how this circle will be squared?

Lastly, I want to ask the Minister about an issue that arose just a few days ago from an administrative policy change. The Immigration Minister issued a Statement announcing

“the removal of the right of administrative review”—[Official Report, Commons, 7/9/23; col. 23WS.]

for settled-status refusals and cancellation decisions made after 5 October this year. I understand the logic of this, as it brings it into line with other kinds of immigration law appeal processes, but campaign groups have said that it will penalise more vulnerable EU citizens and increase the workload on immigration tribunals. Will the Minister please respond to that?

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

Lord Wood of Anfield Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd July 2020 Lords Chamber

[Lord Wood of Anfield (Lab) [V]]

My Lords, I will leave to others the substantive policy consequences of the choices in the Bill and will leave aside my own views on the wisdom of the Brexit that prompted it—that is now a done deal. My points are focused on the ways in which the Bill will generate bad law, which is damaging in itself and as a precedent. I want briefly to mention two aspects of the Bill that seriously concern not just me but many legal experts.

First, picking up on the comments from many colleagues, especially those of my noble friend Lord Rosser, I will mention the provisions for delegated powers in Clause 4. The scope of secondary legislative power given to Ministers is absolutely astonishing. Clause 4(1) confers a power on the Secretary of State to make by statutory instrument such regulations as she

“considers appropriate in consequence of, or”—

in the famous phrase—

“in connection with, any provision of”

the part of the Bill concerned with ending free movement. This power may, among many other things, modify

“any provision made by or under primary legislation passed before, or in the same Session as, this Act.

Noble colleagues have heard how the House’s Delegated Powers Committee has made its views on this aspect of the Bill crystal clear. It was disturbed by the phrase “in connection with” Part 1 because, as it said:

“This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous”.


In short, this enables a Minister to decide whatever they want, as long as they can draw some vague connection.

This extraordinary problem is compounded further by a conspicuous lack of clarity in Clause 1 about which aspects of free movement law actually remain in place. With an extraordinary wide discretion to do something very vague, all this adds up to bad law, trouble down the line and a terrible precedent. This is no way to make immigration law, nor law in general. At the very least, Clause 4 delegation powers should be subject to a sunset clause for six months. Will the Minister consider that?

The second issue is the power to charge fees. Clause 4 provides that this charging power extends to making regulations in relation to

“fees or charges … made by or under”

any prior primary legislation. But there is no need for this power to amend fees or charges provisions, as statutory powers to make an order for an immigration health surcharge and related charges are found variously in Sections 38, 64 and 74 of the Immigration Act 2014. The provision should therefore just be removed.

Whether or not we support the removal of free movement, it is what was voted for and the Government are entitled to legislate for it. But that is no excuse for law that is open-ended, vague and inconsistent. Flexibility for Ministers is one thing, but sidestepping issues that should be the domain of primary legislation is quite another.

Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2020

Lord Wood of Anfield Excerpts

Thursday 16th July 2020 Lords Chamber

[Lord Wood of Anfield (Lab) [V]]

My Lords, I thank the Minister for setting out the facts of the case with regard to FKD. I of course support its inclusion on the proscribed terrorist organisations list. I have a couple of brief questions about the system by which terrorist organisations get proscribed.

First, with reference to previous cases, particularly Kurdish terrorist organisations, can the Minister explain what material difference it makes to redesignate an organisation on the proscribed list as a separate terrorist organisation rather than an affiliate of another large organisation? That has been the subject of previous orders and I am sure will be the subject of future ones.

Secondly, does the Minister agree that there is a need for a better, more internationally co-ordinated system for the designation of proscribed terrorist organisations? I declare an interest as chair of the United Nations Association UK. There is currently no UN system for designating terrorist organisations, just a collection of organisations with approved sanctions passed by individual resolution. Each country has its own list, which may or may not overlap with those of other countries. Should the UK not argue for a multinational regime capable of providing a comprehensive and authoritative list of proscribed organisations that would be at least expected to be binding across countries?

Quarantine: Scientific Advice

Lord Wood of Anfield Excerpts

Wednesday 10th June 2020 Lords Chamber

[Baroness Williams of Trafford [V]]

My Lords, we would wish to instigate a four-nations approach, and we engage across four nations in an attempt to get unified approach. That has been our aim all along.

[Lord Wood of Anfield (Lab) [V]]

My Lords, on 4 April the EU and the UK experienced over 40,000 new Covid-19 cases, and the UK had no quarantine provision. Yesterday, the EU and the UK experienced just 16,000 new Covid-19 cases, a 60% reduction, and we now have a 14-day quarantine provision. How can there be any logic in insisting on quarantine for travellers from EU countries that have negligible numbers of new cases compared to ours, when transmission within the UK is overwhelmingly likely to come from UK residents and not foreign travellers?

[Baroness Williams of Trafford [V]]

The noble Lord makes a point about different rates of infection and the strategies that we have employed. When the initial rate was low, we were trying to contain the virus. Then the peak happened, and measures at the border were seen to be very ineffective. Now that they are now low again, mandatory self-isolation comes in to keep them low.

Extradition (Provisional Arrest) Bill [HL]

Lord Wood of Anfield Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 23rd March 2020 Lords Chamber

[Baroness Ludford (LD)]

My Lords, my noble friend Lady Hamwee, who has led for the Liberal Democrat Benches until now, regrets that under the advice of the Government and the Lord Speaker she cannot be here today.

Amendment 1 addresses new Section 74A, which requires someone who is arrested to be brought before a judge within 24 hours of arrest. However, no account is taken of weekends and bank holidays in calculating 24 hours—so, for example, someone could be arrested without judicial involvement on the Friday afternoon before a bank holiday until the following Tuesday. Concerns were expressed about this on Second Reading, and in Committee on 5 March in debate on my noble friend Lady Hamwee’s then Amendment 3. We have now reworded the amendment so that this Amendment 1 would add that someone should be brought before a judge “as soon as practicable”. The Government claim that wording other than that in the Bill is operationally unworkable because the courts do not sit at the weekend, but in Committee the noble and learned Lord, Lord Judge, who sadly also cannot be in his place today, said in support of changing the wording:

“Would you believe it, there is a judge on duty all weekend, every weekend, and all night”,


and that, if the provisional arrest happens over the weekend,

“it can be treated as urgent business.”

Both the noble and learned Lords, Lord Judge and Lord Mackay, took issue with what the phrase “brought before” means in 2020, with the noble and learned Lord, Lord Judge, pointing out that:

“It is questionable whether the word ‘brought’ requires the physical presence of the judge and the particular person so that they should be facing each other directly. Nowadays we have all sorts of technology that enables people to encounter each other while not in one another’s physical presence.”


The noble Lord, Lord Parkinson of Whitley Bay, said on behalf of the Government in Committee that it was

“the statutory intention that the person should be brought before a judge in person. It is an additional safeguard and a better situation for them to be seen in person before a judge.”

I am not really in a position to assess it, but I must admit that I am not convinced that is necessarily the case. We will of course see remote digital contacts in the justice system rolled out even more in present circumstances. In any case, the noble and learned Lord, Lord Judge, responded:

“If that is the problem, we need to amend the legislation to make it clear that ‘brought before’ does not mean that there is a personal, direct, physical confrontation.”


He said he was very willing to talk to the Government about that.

On another angle, we were told in Committee that it was the Government’s

“intention to replicate the … provisions under the Extradition Act”,—[Official Report, 5/3/20; cols. GC 367-368.]

with the implication that new Section 74A did that. But the noble Lord, Lord Parkinson of Whitley Bay, also explicitly acknowledged that the words in that Extradition Act 2003, in Sections 72(3) and 74(3) covering both an arrest under warrant and a provisional arrest in a Part 2 scenario, say:

“The person must be brought as soon as practicable before the appropriate judge.”


That is precisely the wording we want in Amendment 1. We on these Benches remain simply puzzled. If the Bill replicates or mirrors an existing provision—one we have not managed to find—can the Government explain precisely how? At the moment I cannot see how that is the case. In the absence of that explanation, we continue to believe that the Government need to change course. As far as we can see, it is Amendment 1, not the wording in the Bill, that mirrors that in the 2003 Act and aims for—and, we believe, achieves—clarity and consistency.

[Lord Wood of Anfield (Lab)]

My Lords, the amendment tabled by the noble Baroness, Lady Hamwee, highlights the need for caution over any period of detention before an individual is brought before the judge. From the points just made, I think the House can agree that it is unclear why these detention periods are inconsistent in different cases. The efforts to draw the House’s attention to this certainly have the support of this side of the House. I hope the Minister can offer the House an explanation as to the reason behind this inconsistency between urgent cases under the 2003 Act’s category 1 and category 2.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank the noble Baroness, Lady Ludford, for her explanation and the noble Lord, Lord Wood. As noble Lords will know, the courts to which all extradition suspects must be taken, whether arrested under Part 1 or Part 2 of the Extradition Act 2003—as currently or as amended by this Bill—are Westminster Magistrates’ Court for England and Wales, Edinburgh Sheriff Court for Scotland and Belfast magistrates’ court for Northern Ireland. Currently, the person arrested under the Act must generally be brought before the appropriate judge “as soon as practicable” following arrest. Under the new power of provisional arrest in this Bill, it must occur “within 24 hours”.

The reason the Bill was originally drafted in this way was to strike a balance between getting arrested individuals before a judge as quickly as possible—the point the noble Lord, Lord Wood, makes—and allowing the police sufficient time to gather supporting information. This mirrored, in a more stringent form, the approach to provisional arrest in Part 1 of the Extradition Act 2003, which requires an individual to be brought before an appropriate judge within 48 hours of arrest. But I am conscious that the drafting departs from the general requirement currently imposed on the police after they make arrests under other existing powers in the Extradition Act 2003—the point that the noble Baroness, Lady Ludford, makes.

I listened carefully at Second Reading and in Committee, and I have concluded that the new power of arrest in the Bill should be consistent in this respect with existing law and practice in relation to Part 2 of the 2003 Act and should therefore mirror the wording “as soon as practicable”. This will ensure that individuals are not detained for any longer than is strictly necessary. If, for example, an individual is arrested in central London, “as soon as practicable” would in all probability be within 24 hours. Our operational partners have already proved themselves effective at producing wanted persons before courts within strict timeframes, and the three UK extradition courts have proved strict arbiters of police actions under the “as soon as practicable” requirement.

Therefore, I intend to introduce a government amendment to this effect at Third Reading to address those concerns. The amendment will leave out the words “within 24 hours” and insert “as soon as practicable” in their place, as well as consequently deleting the express exclusion of weekends and bank holidays in the calculation of the 24-hour period. While the language will not explicitly rule out production on weekends or bank holidays, these factors will, of course, be relevant to the practicability of bringing an individual before an appropriate judge. If public holidays or court opening times were to change in future, the legislation would not need to be amended to take account of that. It remains the Government’s intention that the arrested person be brought before a judge sitting in court and so the concept of “as soon as practicable” will remain subject to court sitting times, which are determined by the judiciary. There may, of course, be a multitude of other factors which affect, in the individual case, the practicability of bringing an individual before a judge, such as distance, natural disasters or illness of the arrested individual. We continue to think it is right, therefore, that the judiciary is the arbiter, in the individual case, of whether this test of “as soon as practicable” is met, and it will be able to do so in determining any application for discharge under Section 74D(10).

I hope that the noble Baroness and the noble Lord are content with those intentions, which I will bring back at Third Reading and that the noble Baroness will be happy to withdraw the amendment.

--- Later in debate ---

[Baroness Ludford]

My Lords, again I am moving this amendment on behalf of my noble friend Lady Hamwee. It is the same as Amendment 9 in Committee, though with a slight drafting change to refer to “regulations” rather than “orders”. We are pleased that the noble and learned Lord, Lord Judge, and the noble Lords, Lord Anderson and Lord Kennedy, have added their names and we understand why they are not able to be here today. I think that the noble Lord, Lord Inglewood, would have added his name had there been space.

As my noble friend Lady Hamwee explained in Committee, it is essential to allow additions to the Schedule for only one territory at a time. We can envisage a scenario in which the Government wish to add a whole raft of states to the Schedule all at once. For the sake of argument, let us imagine that would consist of all EU and EEA states and that in the list there is a country that might be an EU associated country, such as Turkey, but one over which considerable human rights concerns exist. I seem to be quoting a lot from the noble and learned Lord, Lord Judge, but he always says very wise things. In Committee, he said:

“We all know that there are countries in the world that do not respect the rule of law. I will not set about trying to give your Lordships a list because the list itself changes. Countries that respected the rule of law no longer do. Weimar Germany did; Hitler’s Germany did not. This is a moveable feast.”—[Official Report, 5/3/20; col. 378GC.]


That is a very good point. Turkey was making very good progress in democracy and human rights a decade ago, but it regressed, regrettably.

There is great concern that the Government want to give themselves wide powers for the Secretary of State to add countries to the list en bloc. I think it was in Committee that the Minister said that the Government had no intention of specifying countries likely to abuse the system to political ends. I utterly believe what she said, but I again quote the noble and learned Lord, Lord Judge, who raised at Second Reading the fear that

“in the real world we are surely not going to be so naive as to believe that all sorts of motives—a possible trade deal, a plea just to be good friends with us, political beliefs, sympathy with a tyrannical regime—may not lead”—[Official Report, 4/2/20; col. 1731.]

to an addition to the list in the Schedule, although he certainly excused our present Minister from falling prey to such motivation.

The non-governmental organisation Fair Trials International, for which I have been pleased to work for 20 years and of which I am a patron, has done excellent work on the abuse of Interpol red notices where countries use them against political opponents, human rights defenders and journalists living in exile. The journalist Bill Browder was famously the victim of one from Russia and wrote a book called Red Notice. There are numerous examples of such countries and one would not expect them to be added to the list—Azerbaijan, Venezuela, Egypt and many others where Interpol red notices have been used in a very questionable way. I do not think that the argument the Minister used in Committee—essentially that “one at a time is not how we do things”—is quite good enough. She said

“it is common practice to allow for multiple territories to be specified together for similar legislation.”—[Official Report, 5/3/20; col. 382GC.]

But I am not convinced that it needs to be invariable practice. It may have been common practice up to now, but we are not obliged to follow that. It is perfectly simple to do it one country at a time. This will not cause Whitehall to collapse in shock.

Our amendment could actually help the Government, as it would avoid Parliament rejecting the inclusion of a list that had good states as well as a bad state. We would not have to reject them all because of the inclusion of a single bad state, if I can use that shorthand. It would allow for the sensible, responsible outcome of bringing the respectable states into the provisional arrest arrangement while excluding a state that did not respect the rule of law and human rights.

Accepting this amendment would not lead to any delay as two or more sets of regulations, each relating to a single territory, could be tabled at the same time. We would not lose time. Ministers have been keen to stress that the Director of Public Prosecutions, Max Hill QC, supports the Bill, but I as I read his letter, he was supporting the general proposition, which is fair enough, but he was not commenting on this sort of detail, so will the Minister have a another look at this? We on these Benches would be happy to have a meeting to discuss it. We are keen to understand whether there is any substantive reason for rejecting the amendment, which, to be honest, we do not see at present.

In normal circumstances, we would be keen to test the opinion of the House on this, but since these are not normal times, will the Minister let us return to this matter at Third Reading, in the way that she has so helpfully promised that we could do on Amendment 1? We are firm on the substance of Amendment 2, in the same way as on Amendment 1, but we are flexible on the timing, so I hope that the Minister can respond in that vein. I beg to move.

[Lord Wood of Anfield]

I will speak to Amendment 2, and Amendment 3 in the name of my noble friend Lord Kennedy, who is unable to be here today. As we have just heard, Amendment 2 would require regulations that add, vary or remove a reference to a territory to contain no more than one territory. Allowing Parliament to reject a single territory would a create a valuable scrutiny mechanism for when either House has concerns to raise over a specific individual country that the Government intend to add because there will be occasions when the merits of adding individual territories are disputed. The amendment would create an important safeguard to exercise scrutiny in such circumstances and we support it.

In recognition of the powers in this Bill to add, remove or vary territories, Amendment 3 would create conditions for when the Government choose to exercise these powers. To this end, the amendment seeks to create a new process that means that the Government must take three further steps before adding and removing territories. The first condition for the Government to meet is to consult with the devolved Administrations and non-governmental organisations—the devolved Administrations because there will be certain powers relating to justice, policing and prisons that are devolved, and the non-governmental organisations to understand better any issues that arise from individual territories relating, for example, to the human rights records of the countries concerned.

The second condition is that the Government must produce an assessment of the risks of each change, which would put on record the Government’s rationale for signing the agreement, and allow for parliamentary scrutiny. The final condition is that if a new country is added, the Government must confirm that the country does not abuse the Interpol red notice system. That would make it clear that the Secretary of State responsible must not sign agreements with countries that have questionable records on human rights.

Although we fully accept the need to add further territories as treaties are negotiated, the Government must add only those that comply with our values. I am sure that all noble Lords would agree with that. While we fully accept that it may be necessary to remove or vary territories, it is important that the Government are transparent about their rationale and offer themselves to the scrutiny of Parliament. Will the Minister allay our concerns about the rationale and availability of scrutiny and about consulting with the devolved Administrations and NGOs by confirming that the Government already intend to consult and open themselves to scrutiny when they add or remove further territories?

[Baroness Ludford]

My Lords, we on these Benches support Amendment 3 in the name of the noble Lord, Lord Kennedy. We hope that the Government will confirm the involvement of the devolved Administrations and believe that there is a strong case to be made for consulting NGOs that have experience of the country concerned, however knowledgeable the Foreign and Commonwealth Office may be.

On the “risks” mentioned in paragraph (b) of the amendment, I imagine that the noble Lord means that he expects the Government to make an assessment of balance and proportionality in whatever conclusion they reach on the suitability of a country to be included.

Of course, we totally support his reference in paragraph (c) to the need to avoid the abuse of Interpol red notices, to which I referred in moving Amendment 1. I have said that I am a patron of Fair Trials International and I want to give it a plug: it has done sterling work on this issue in the past few years and can, I believe, take considerable credit for the reforms that have been made to Interpol red notices so far. They do not go far enough but reference has been made in previous stages of the Bill to the fact that some reform is going on at Interpol; that needs to improve because there is still the problem of abuse. Perhaps one day there will not be and we can look again, but, for the moment, Amendment 3 is very appropriate.