Immigration (Health Charge) Order 2015

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Tuesday 10th March 2015 Grand Committee

[Baroness Williams of Trafford]

I thank my noble friend Lord Attlee and the noble Baroness, Lady Smith, for their questions. I will take them in reverse order. My noble friend makes the comparison between fees for students in this country as opposed to some leading universities in America. I can inform the Committee that, in Harvard, it costs £600 a year and could cost up to an extra £1,500 per annum if you are a student there. The difference is quite significant between what we are able to charge in this country and what a student attending Harvard might be expected to pay. He also made a good point about the increase in the number of students, which I think he referred to in our previous debate.

The noble Baroness, Lady Smith, talked about a perverse incentive. In fact, that was the very question that I asked myself. If there were a perverse incentive, it exists at the moment because healthcare is absolutely free. In setting the amount of the charge, the Government have considered several things: namely, the cost to the NHS of treating temporary non-EEA migrants and the range of health services available without charge to migrants; the valuable contributions that migrants make to the UK; and the need to ensure that the UK remains an attractive destination for global talent. Taking those factors into account, the charge has been set at £200 a year with a discounted rate of £150 a year for students. We think that this represents a proportionate contribution to the NHS, rather than a full cost recovery. The charge has been set at a rate that is designed to strike the balance between providing a better deal for the UK taxpayer and ensuring that the UK is maintained as a destination of choice for global talent. There is a balance to be struck.

The noble Baroness, Lady Smith, also asked about review upon implementation. The operation of the health charge will be reviewed six months after implementation. I think that that will provide an opportunity to look at whether the charge is set at an appropriate level. She also asked why taxpaying migrants must pay the charge. We believe that those subject—

[Baroness Smith of Basildon]

That was not my question at all. I asked whether any tax paid by migrants for working was taken into account in any assessments that were made as part of the impact assessment. I was not querying whether they paid the charge, just whether it was calculated under the impact assessment.

[Baroness Williams of Trafford]

Yes, my Lords, it is, so I will not pursue the point that I was making before.

As regards how we arrived at the figures—the noble Baroness talked about the surcharge raising £195 million —that excludes the cost of administering the scheme, which is why the figures probably seem a little anomalous to her. All temporary migrants subject to the surcharge will have to pay it or they will not be granted a visa or permission to stay. Basically, there will not be evasion of the charge.

The noble Baroness also talked about the fact that in the impact assessment there is a mention of increased employment opportunities for UK nationals. That reflects a situation where the introduction of the health charge results in a modest decrease in the number of foreign nationals coming here.

I hope that I have answered all the noble Baroness’s questions. I thank my noble friend—

[Baroness Smith of Basildon]

There was the question I asked at the beginning about whether the charge is likely to be any higher, given that the figure in the legislation is not an absolute one.

[Baroness Williams of Trafford]

My Lords, I am making an assumption that because the impact of the charge will be reviewed after six months, that will be the point at which a decision such as that would be made. However, if it is any different, I will write to the noble Baroness.

Immigration and Nationality (Fees) Order 2015

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Tuesday 10th March 2015 Grand Committee

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the noble Baroness for her explanation of the order and the information she provided. It is helpful to have the outline. She will be aware and will know from debates we have had previously on the Bill that we support the principle that the Home Office’s costs and visa costs should be borne by those who are using the service. I make it clear that we support the order before us today. We were clear in Committee and during the passage of the Bill. I think there is further detail to come on the levels of charging.

However, I have some questions. I have been working through the impact assessment and the consultation document trying to work things out, and if the noble Baroness can give me some clarification it will be helpful. It in no way changes our support for the principle but I think there are always three things. First, there is principle, which we have signed up to and fully support; secondly, there is the detail and how it works in practice; and thirdly, the political purpose and the impact. It is the detail and the impact that I particularly want to ask her about.

One of the things I could not quite work out from the documents I had was how the maximum costs have been calculated. What was the evidence base and how was the assessment made to come to those figures? I appreciate that the Government recognise that there is a different impact on different kinds of immigration and the different categories, but what was the basis for setting the levels? I have been looking at them to see how they were ascertained and for the impact on, for example, the tourist industry, which is singled out in the impact assessment.

The Explanatory Memorandum says that responses were,

“broadly supportive of the proposals”.

It is right that they were broadly supportive of the principles behind the proposals, but some questions were raised, particularly from the universities regarding the impact on students and from some employers regarding the impact on their businesses. It would be helpful to know what points came up in the consultation that the Government were able to respond to and make changes in the statutory instrument to address.

I have one issue. All these things have to be evidence-based, and in the language and rhetoric we use we would always want to be fair to everybody, including those concerned about the impact of immigration and immigrants themselves. However, on the issue of other key non-monetised benefits from the main affected groups, page 2 of the impact assessment says:

“If some migrants decide to leave the UK, there may be some wider benefits in terms of improved social cohesion, reduced congestion and transport costs”.

It says that these are “expected to be negligible”, but it sounds like they were digging around to find something non-monetised as a benefit. I am not sure that its tone and lack of evidence base—“basically, if some foreigners leave there will be increased social cohesion”—is the kind of thing we should be seeing in an impact assessment in such a subjective way. Unless the Government can provide evidence to that effect I am uncomfortable with that being in the impact assessment.

We are looking at all the evidence here. I want to draw attention to page 5 of the impact assessment where the point is made that:

“Potential changes to the immigration system, and the inexactness of projection methods, mean that application forecasts are not considered to be accurate over a ten-year period. Impacts are therefore assessed over a five-year period”.

There are some questions about how robust the information is.

It was interesting to read the comments on page 6 about the impact on application volume. The Government quite rightly recognise, as it states there, that:

“The UK competes with other countries for tourists, students and workers, thus it is possible that increasing fees in the UK may encourage substitution effects in that applicants may apply to other countries or may not apply at all. The impact of raising fees stems primarily from the deterrence of potential migrants from entering the UK”.

The Minister will be aware from the number of discussions that we have had, particularly on the Immigration Bill, of how nervous the universities are that potential university students, who pay fees and contribute to the economy—and who are unfortunately included in the Government’s net migration statistics—may be deterred from coming to the UK. This is recognised in the document, which continues:

“The analysis has therefore not yet delivered estimates of the relationship between price and demand for visas that are robust enough for use in impact assessments”.

That implies that the Government do not know what impact the change of fees will have on applicants such as students. Perhaps the Minister could make some comment on that. I worry that the evidence base is weak. I hope that it is not the Government’s intention to deter through cost levels students or those with skills whom we want to employ in this country, but the impact assessment appears to state that the Government do not know.

Page 7 of the impact assessment makes the specific point that,

“the impact on an individual student to changes in the visa fee … does not describe the response of international students in aggregate ... Evidence suggests that places at UK institutions are oversubscribed by international students, and that the number of international students in higher education has continued to increase over time, suggesting that past increases in tuition costs, living expenses and visa fees haven’t significantly damaged demand”.

It goes on to say that there is no evidence that this measure will do. Can I press the Minister on this point? I was speaking last week to a friend who is a lecturer at a university in Tokyo who said that her students are now far more reluctant for a number of reasons to come to the UK and are applying to Australia and America. If we are looking at the impact of past increases, are we making any future projections? What analysis is being done? Are we looking at these issues in the round, or in isolation at what this order does? There seem to be a number of pressures on employers and students, not just those with which the order is concerned.

I want to ask the Minister about the table in the impact assessment which shows the net revenue from fee changes for those who continue to apply. Despite the increase in revenue that the Government are looking at, the table shows that the amount of projected income will go down from £75.3 million in 2015-16 to £60.8 million in 2019-20. Is the purpose to ensure that the number of immigrants is reduced, because fewer of them are coming into the country, or is just to ensure that the fee system is fair on those who do? Is this a way in which the Government are trying to deal with the net migration statistics, which, as we saw last week, are a failure by their own standards—although I am not sure that that on its own tells us very much? What are the assumptions behind the net revenue being foreseen to reduce in that way and why is it the case? The point that I am making is about the robustness of the analysis that has been undertaken. We are fully signed up to the principle that those who use the system should pay for it, but I am not clear that the evidence has been produced to show that the Government understand the impact of all the changes being made.

A significant reduction, for example, in the number of overseas students coming to the UK and paying fees may help the Government’s target, but it will not help the UK economy or our universities. It would be helpful to learn whether the Government have given any consideration to post-implementation analysis of the impact. Such an analysis might give us the opportunity to assess in the different categories of immigration the impact not just of the fees but of a range of changes being made and whether the impact is positive or negative. We support the order, but I worry about the robustness of the evidence being provided.

[Baroness Williams of Trafford]

I thank the noble Baroness for her questions. I will go through, hopefully, all of them in order.

The first question that the noble Baroness asked was how the costs have been calculated. We will continue to work within the strict financial limits agreed with HM Treasury. Within those limits, we set fees that reflect the cost of processing and the value of a successful application while ensuring that the UK remains an attractive destination for work, study and tourism. The fees have Treasury and cross-governmental approval. We must have agreement from HM Treasury before we introduce or amend any fee. She asked a lot of questions today about the impact assessment of fee proposals. In terms of the criteria, the fee levels are considered very carefully, taking into account a complex range of factors, which includes, as I said, the administrative cost of processing an application; the benefits and the entitlements given to an individual if their application is successful; the international pricing comparisons; economic growth; mutually beneficial arrangements between the UK and other Governments; and the cost of running the immigration system as a whole.

One important point that the noble Baroness raised was on the tone of the language in the impact assessment if people leave. I have to say that, from a personal point of view, I agree with the noble Baroness. That point was raised in the other House. The assessments are produced by economists and the approach and language that they use is factual rather than policy based, but I totally get where the noble Baroness is coming from.

[Baroness Smith of Basildon]

I am grateful to the Minister for that comment. I thank that that is helpful. It is very good to have that on the record and I appreciate it. Although the tone is a concern, my problem also is whether there is evidence to back up what was said. I could not find that anywhere in the impact assessment. It may be economists making the statement, but where in the impact assessment is the evidence that backs up that statement? That is an objective comment.

[Baroness Williams of Trafford]

I thank the noble Baroness for that intervention. I can come back to her in due course after today. I think that we understand each other on that point.

On the consultation, we targeted over 1,100 representatives from the education, employment, business and tourism sectors, who were sent the document and encouraged to reply. We held workshops with representatives from different sectors and immigration lawyers. The document was also available to members of the public. We consulted on the principles of charging for immigration and the nationality fees, and that included questions on the simplifying of the fee structure; fee levels; legislation; optional and premium services; Border Force services; commercial partnerships; refunds; and administration fees. The responses were generally supportive of our charging strategy; of the principle that fast-track service at the border and premium services should be expanded to provide more choice and convenience for customers; and of the suggestion that the fee structure should be simplified.

--- Later in debate ---

[Baroness Smith of Basildon]

I have just one further point. I am grateful to the Minister. I think that most of the points I have raised have been addressed. I think she is right that they are as robust as they can be, but the impact assessment says how non-robust they are. I have one final point: I asked her about some kind of post-implementation review to try to understand the impact. I would appreciate it if she could comment on that.

[Baroness Williams of Trafford]

My Lords, I am pretty sure that there would be a review of any policy decision that we made. I will write to the noble Baroness if that is not the case. I am sure that that will be the case in due course.

Serious Crime Bill [HL]

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Monday 2nd March 2015 Lords Chamber

[Baroness Williams of Trafford]

The noble Baroness is correct.

[Baroness Smith of Basildon]

So are we discussing those amendments now? Have they been wrongly grouped? Or are the amendment numbers that the noble Baroness has incorrect? Are we, in fact, discussing Amendments 50 and 51 rather than Amendments 24 and 25?

[Baroness Williams of Trafford]

My Lords, I apologise to the House. Let me clarify the fact that we are debating Amendments 50 and 51.

--- Later in debate ---

[Baroness Smith of Basildon]

I am not sure that I accept that a family whose daughter had undergone FGM and became seriously ill would not want that to be dealt with. It is quite a big jump to make, to put pressure on a family in that way. The noble Baroness says that they will not, but if that becomes evident, the Government will have to look. As I said, I have slightly conflicted views on this, but the House of Commons, I am sure, had the benefit of the consultation—although that was slightly split. I look forward to the response from the noble Baroness the Minister.

I come back to the point on legal aid. One issue that I raised with the Minister in earlier debates was whether legal aid would be available for FGM orders. At that time, she was unable to confirm that they would. We raised the point that without such legal aid, which is available for forced marriage orders, there would be no FGM orders. The point about prevention, which the noble Baroness made, is that unless you have the orders, there is not going to be prevention of FGM. We have had several conversations; the noble Baroness promised to write to me on several occasions, and I think she was frustrated that no correspondence was forthcoming. I am pleased now that the Government have confirmed that legal aid will be available for FGM orders. So we support the new clause, but I would be grateful if she could address some of the points raised in this debate, because justified concerns have been raised. That does not take away from the fact that the whole purpose of this is to try to prevent FGM from ever occurring and women from suffering such abuse.

[Baroness Williams of Trafford]

My Lords, it is probably best to start with the point that not only is FGM illegal but it has been illegal for 30 years, and that all healthcare professionals—indeed, all professionals —who come into contact with children have a general safeguarding duty to those children. That is the underlying issue within the law, and it has been so, as I said, for three decades. As noble Lords have said, FGM is a terribly complex issue, and there are things beyond the law that we also need to do in terms of changing the culture and the practice of FGM.

I will start with the points made by the noble Lord, Lord Patel. The mandatory duty to report has actually received support from organisations such as the Royal College of Nursing and the Royal College of Midwives, but the noble Lord pointed out the concerns raised by the BMA. It has actually been supportive of the majority of the FGM measures in the Bill but it has highlighted some concerns in respect of the mandatory reporting duty, particularly what it means for victims. The Government appreciate that introducing a mandatory reporting duty will impact on many different sectors, and we recognise that this is very complex. However, we believe that it will be an important step forward in tackling FGM.

FGM is already a hidden crime, and introducing a clear mandatory duty will provide clarity for professionals on their responsibilities to report to the police. It will also lessen the onus on the girls to report FGM by putting responsibility on those whose job it is to safeguard girls who have been victims of what is a crime and what is child abuse. Of course, we recognise that there are existing legal and professional responsibilities in relation to safeguarding, and the new duty will have to be seen in the context of the existing statutory guidance—for example, Working Together to Safeguard Children.

Some concern has been expressed that the duty may act as a barrier to individuals accessing healthcare services. The Government recognise this risk, which is why we are clear that there will be no requirement for professionals to work outside their usual professional duties to actively seek out cases of FGM. We have focused the duty on known cases of FGM rather than suspected ones, and the new FGM unit working with government departments is conducting a programme of outreach with professionals and front-line communities, which will explain how the new duty, in tandem with other government reforms, will work in practice. We are also updating the multiagency guidelines on FGM and putting them on a statutory basis to support effective implementation of the duty.

There were also concerns about cases being referred to the police and the fear that this may act as a further deterrent to individuals accessing services. The Government have carefully considered the options for when referrals should be made, and we recognise that cases have both a criminal and a safeguarding element. FGM is a criminal offence and we therefore believe that the most appropriate reporting route is via the police. However, I reassure noble Lords that a report to the police will not necessarily immediately trigger a criminal investigation: when a report is made, the police will work with the relevant agencies to determine the most appropriate course of action. In preparing to introduce the duty, we will work closely with the police to ensure that a clear reporting system is in place prior to its introduction. In addition, we will have ensured that there is a reasonable timeframe within which professionals are required to make the report to the police, to allow time for consultation with other agencies in sensitive or complex cases.

Finally, I confirm that the Government will ensure that there is adequate time for consultation with stakeholders prior to the introduction of statutory guidance.

I again apologise to the House for the confusion about the provisions relating to legal aid. The relevant amendments in this group are indeed Commons Amendments 50 and 51. I think the noble Baroness, Lady Smith, asked what legal aid will be available for orders made in criminal proceedings. The Commons amendments make civil legal aid available for victims and third parties who may wish to apply, vary or discharge an FGM protection order.

[Baroness Smith of Basildon]

The noble Baroness is aware that the orders are not based on criminal proceedings; they are civil orders. The confusion was caused because the Government have placed a civil provision within the criminal law, whereas our proposal was for a civil provision, wholly within civil law. I think that is what, partly, created the confusion around legal aid. It is purely a civil matter, although it sits within criminal legislation.

[Baroness Williams of Trafford]

I thank the noble Baroness for clarifying that. I think I referred to this in my introduction, but the Government have made some quite tough choices in deciding which matters would remain in scope of legal aid. The ministry took account of the importance of the issues at stake, the individual’s ability to present their own case and the availability of alternative sources of funding. Legal aid continues to be available in the most serious of cases, for example where people’s life or liberty is at stake or where their children may be taken into care. Legal aid is available where not providing it would be likely to result in a breach of the individual’s rights under the European Convention on Human Rights or European law. I confirmed in my remarks at the beginning that civil legal aid will be provided.

My noble friend Lady Walmsley asked about the progress of the consultation on whether to introduce a more general duty to report suspected abuse of children and vulnerable adults. As my noble friend will know, following the earlier debates on the Bill in the House the Government committed to undertake such a consultation, and the outcome of that consultation will be reported on within 18 months of Royal Assent.

My noble friend also asked about sanctions for failing to report cases of FGM. The proposal will use existing disciplinary frameworks to consider sanctions. Given that in health these may include General Medical Council and Nursing and Midwifery Council fitness to practise proceedings, there can be a wide variety of recommendations made as to suitable action, which may include retraining, supervision or other measures.

Referral and Investigation of Proposed Marriages and Civil Partnerships (Scotland) Order 2015

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Tuesday 24th February 2015 Grand Committee

[Baroness Williams of Trafford (Con)]

My Lords, I shall speak also to the Referral and Investigation of Proposed Marriages and Civil Partnerships (Northern Ireland and Miscellaneous Provisions) Order 2015 and the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc.) Regulations 2015.

Part 4 of the Immigration Act 2014 constitutes the biggest reform of marriage preliminaries in a generation. It provides for a new referral and investigation scheme in England and Wales, aimed at tackling sham marriages and civil partnerships entered into for the purpose of circumventing the UK’s immigration controls. We are committed to dealing with those who seek to use marriage or civil partnership as a means of cheating their way into staying in the UK. The referral and investigation scheme will give us a much stronger platform for effective, systematic action to disrupt and deter sham marriages and civil partnerships, and prevent them gaining an immigration advantage.

The draft orders extend the referral and investigation scheme to proposed marriages and civil partnerships in Scotland and Northern Ireland. The operation of the scheme on a UK-wide basis will ensure that there is a robust response in place to the problem of sham marriage and avoids any risk of displacement of the problem from one part of the UK to another. We are grateful for the support of colleagues in the devolved Administrations for these measures.

The conduct of investigations regulations make provision for how we will conduct an investigation into whether a proposed marriage or civil partnership referred under the scheme is a sham. They set out the requirements with which the parties must comply as part of an investigation and the basis for the decision as to whether they have complied. If the parties do not comply with an investigation under the scheme, they will be unable to marry or enter into a civil partnership on the basis of that notice. The scheme will be implemented across the UK on 2 March. From this date, all marriages following civil preliminaries and civil partnerships in England and Wales will be subject to a minimum notice period of 28 days. This will also be the case in Scotland and Northern Ireland, under changes to devolved marriage and civil partnership laws.

Any couple including a non-EEA national wishing to marry in the Anglican Church in England and Wales will be required to complete civil preliminaries and give notice at a register office before their marriage. This will ensure that all couples within the scope of the scheme are correctly identified. Also from 2 March, registration officials will be required to refer to the Home Office all couples involving a non-EEA national who could gain an immigration advantage from the proposed marriage or civil partnership—for example, because they do not have evidence that they have settled status in the UK. Where a couple is referred to the Home Office under the scheme, we will be able to extend the notice period from 28 to 70 days where we suspect a sham and decide to investigate the genuine nature of the relationship.

By extending the notice period and channelling to us all proposed marriages and civil partnerships that could bring an immigration benefit, the new system will give us much more time and information to identify and act against shams before they happen. Where they go ahead, we will have the evidence that we need on file to be able to refuse any subsequent immigration application. The new scheme will provide the platform needed for us to tackle sham marriages and civil partnerships more effectively, and crack down on the abuse of our marriage and civil partnership laws, and of our immigration system. I beg to move.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Baroness for her explanation of and information about these orders, and I think she knows that they have our full support. We expressed that support during the passage of the Immigration Bill, which was a long Bill that produced considerable debate—but, interestingly, this part did not provoke particularly long debates. There was widespread support in your Lordships’ House for the view that something had to be done to tackle those who seek to gain an immigration status in the UK on the basis of a marriage ceremony that is not a genuine marriage. I appreciate that it is seriously difficult to investigate and understand how often this happens, and there is now a reliance on those who conduct marriages to seek further information and to make a judgment, based on that information, about whether the marriage is fraudulent for the purposes of immigration or is a genuine relationship. We supported the measures then and we support them now.

Not only are these sham ceremonies wrong in principle and unfair to British citizens, they are also unfair on those in mixed nationality relationships that are genuine and do lead to marriage. We can have confidence in those marriages if we deal with sham marriages that are not genuine. I have a few questions, some of which are simply to refresh my memory on a couple of things in the Immigration Bill that relate to this issue. Earlier I was thinking about whether it is a duty on those conducting a marriage ceremony to refer any marriage they suspect of being sham or is it something that they may do? I know that there is information that they have to check, but that can be provided fraudulently anyway, which indeed has been part of the problem. Is it an actual duty on those conducting the marriage?

One reason I ask this relates to the news at the moment about the three young London girls who flew to Turkey and are now feared to have gone to Syria. A problem there is that the Government have in some ways outsourced the checking procedures from those who would have been responsible, such as the then UK Border Agency. It is now the responsibility of the airline to check whether they are able to leave the country. Now we have a situation where we expect those who conduct marriage ceremonies to check whether a couple are genuine. I am curious as to whether it would be an offence if the person did not conduct adequate checks, and what training, support, advice and guidance is being given to those who conduct marriages to help them make the correct assessment? That is key to making sure that we get this right. It is all very well to pass a law saying that something should happen, but unless we know that it will happen appropriately, we should still have some concerns.

I have to say that I did not find the Explanatory Memorandum very helpful at all. It refers to consultations, but the only ones it mentions are those which were conducted on the measures that are in the Bill itself, not those set out in this secondary legislation. One thing that always concerns me about secondary legislation is that often it is about the implementation of policies that have already been agreed. For a policy to be effective, its implementation often matters more than what was decided as the policy. I would have liked to have seen some consultation; some soundings and advice taken from those who are going to be at the sharp end of implementing the legislation to see if they are content with the tools they have in place. I went back to the original consultation, but it did not help much in that regard. If the Minister could tell me what conversations and discussions have been held with those who will be responsible for implementing the legislation, it would be quite helpful.

At the time the legislation was being passed, it was estimated that there were something between 4,000 and 10,000 applications to remain in the UK being made each year by those who we believed were party to a sham marriage. That is a huge range, and we said at the time that there has to be more intelligence gathering and an intelligence-based approach to this problem. Has anything more been done on that since then? If this is to be a referral-only mechanism to investigate sham marriages, I am concerned that we may be missing some of the sham applications that will be made as a result unless the appropriate training and guidance is given to those who are to conduct such marriages.

These are not concerns about the policy or the principle, but about how the law is going to work in practice. Are the tools and the funding in place? Those are the issues. In principle, however, we support these orders, just as we supported the legislation. However, if the noble Baroness is able to say something about the points I have raised, I would be most grateful to her.

[Baroness Williams of Trafford]

I thank the noble Baroness, as always, for her constructive comments. She asked three main questions, the first of which was on a duty to report. There is an existing duty to report on registration officials who suspect that a sham marriage or civil partnership has taken place or is about to take place. They currently have a duty to report that to the Home Office, and there will now also be a duty to refer all couples who are in scope of the scheme for the Home Office to make a decision about whether to investigate or not. That is where the extended period to investigate comes in.

The noble Baroness also asked about guidance and training. Statutory guidance for Home Office staff on the operation of the new scheme is being developed, alongside the requisite operational procedures for dealing with proposed marriages and civil partnerships which have been referred to the Home Office under the scheme. The guidance is expected to cover decisions about whether to investigate whether a proposed marriage or civil partnership is a sham, how the investigation may be conducted and whether a couple have complied with an investigation. The parameters for the guidance are set out in secondary legislation before the Committee, in the draft conduct of investigations regulations, and in the explanatory paper on the new scheme that the Government published in November 2013 to support parliamentary consideration of the relevant provisions in the Immigration Bill.

The noble Baroness talked about training, and help and advice for registrars. I understand that significant training has been provided to local registration staff to help them identify forged documents. That is not a perfect solution but it is the best that we have at our disposal at this point in time. Intelligence has also been shared with registration staff so that they are aware of the profile of a likely sham and what sort of pointers would indicate one.

The noble Baroness talked about consultation. We have consulted publicly, and consulted the devolved Administrations and their registrars on the scheme.

[Baroness Smith of Basildon]

I am grateful for that, which was helpful, although I was asking about consultation on these regulations, not on the Bill. The Explanatory Memorandum says that,

“no public or other consultation was held … on the Regulations”.

Perhaps she is talking about the Bill, not the regulations.

[Baroness Williams of Trafford]

Perhaps I need to come back to the noble Baroness on that. I had it in my mind that there had been both a public consultation and extensive discussions with the devolved Administrations. Rather than give her duff information from the Dispatch Box, I will get back to her. We have also worked closely with the Anglican Church on the changes that might affect the church. I will write to the noble Baroness on the specific point, but unless she has any other questions, I commend the regulations to the Committee.

British Nationality (General) (Amendment) Regulations 2015

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Tuesday 10th February 2015 Grand Committee

[Baroness Williams of Trafford (Con)]

My Lords, these statutory instruments expand the cohort of immigration and nationality applicants from whom we will collect biometric information, while at the same time providing clear and consistent safeguards on the use and retention of these data. The changes in these instruments respond to consultation and engagement with the public. In particular, the instruments will enable the Home Office to complete the rollout of biometric residence permits, which is a type of biometric immigration document, to foreign nationals coming from overseas to stay in the UK for more than six months. The instruments also implement other biometric provisions of the Immigration Act 2014 and are a significant development to help us to combat illegal immigration and abuse of the immigration and nationality system through identity fraud.

By taking the fingerprints and facial images of foreign nationals, we are able to make checks against immigration and police databases before permitting them to enter or remain in the UK or granting them British citizenship. The use of biometric information as part of the immigration and nationality application process leads to better decisions as we are easily able to confirm and fix a person’s identity details and spot those trying to conceal an adverse criminal or immigration history.

The increased use of secure biometric documents allows us to link foreign nationals, using their biometric features, to the document that we issue as evidence of his or her right to be here. We intend biometric immigration documents to become the primary means for foreign nationals living in the UK to evidence a right to work or prove that they can access public benefits. We are committed to helping employers, public authorities and others who are required to undertake immigration status checks by simplifying and upgrading the documents issued to foreign nationals. Secure biometric documents lend themselves to simpler, reliable and faster checks of immigration status and make it easier to confirm whether a person has the right to work in the UK.

In addition to extending the rollout of biometric immigration documents to foreign nationals coming from overseas, these instruments require new categories of people to provide biometric information when making immigration or nationality applications or when applying for a document to evidence leave or an entitlement to reside in the UK under EU law. These categories include people registering or naturalising as British citizens; non-EEA nationals applying for documentary evidence of an entitlement to enter or remain in the UK by virtue of EU law; foreign nationals required to apply for a direct airside transit visa in order to transit through a UK port without entering the UK; foreign nationals, subject to immigration control, applying from overseas for permission to live in the UK for more than six months; and foreign nationals extending their leave in the UK for a cumulative period of less than six months.

In addition to introducing new categories of people required to enrol their biometrics, these instruments will start to align the powers to retain and use biometric information so that there is a consistent approach whenever a foreign national is required to provide their biometric information for immigration or nationality purposes. These instruments are intended to be commenced in phases starting from mid-March 2015.

Looking at the changes in a bit more depth, I turn first to the rollout of biometric immigration documents to successful overseas applicants for permission to live in the UK for periods exceeding six months. This rollout will be incremental, starting in Pakistan, once these instruments have been approved, and finishing with worldwide coverage this summer. Successful overseas applicants will be issued with a short-validity vignette in their passport to enable them to travel to the UK to collect their biometric immigration document from one of the many specified post offices available across the UK. We are working with employers and the education sector to ensure that they understand the new arrangements and the impact on their businesses to ensure a smooth and efficient implementation.

These instruments also introduce a new type of biometric immigration document, which will be known as a short-stay permit. These will be issued to a small number of foreign nationals whose leave is extended in the UK to a total period of six months or less. These cards will have the same secure features as the biometric residence permit.

I turn to the various changes in these instruments to implement the biometrics provisions in the Immigration Act 2014. One of the changes is that persons registering or naturalising as British citizens will now be required to provide their biometric information as part of their application for citizenship. This is intended to improve our levels of assurance about the identity of those seeking to become British citizens and help tackle fraudulent applications. In addition, the Immigration Act implementation changes in these instruments will also require non-EEA nationals with enforceable EU law rights, such as family members of EEA nationals, to enrol their biometrics when applying for documentation which evidences their right to reside here. At present, these individuals are usually issued with passport vignettes. Following these changes, they will instead be issued with biometric cards, similar in format to the biometric residence permits issued to other non-EEA nationals. These changes will facilitate the exercise of these individuals’ free movement rights while making it harder for those abusing rights to work and live illegally in the UK.

These instruments also require applicants for direct airside transit visas, issued to some foreign nationals who pass through the UK for onward travel without entering, to provide their biometric information. Such information is important when identifying the person at the border should they subsequently seek to enter the UK. A key aim of the biometric provisions in the Immigration Act 2014, which is implemented by these instruments, is to align the powers to use and retain biometric information provided for immigration and nationality purposes.

Under these new provisions we will continue to retain biometric information while there is an immigration or nationality purpose to do so. Where there are immigration and nationality reasons for the retention of fingerprints, they will normally be held for a maximum of 10 years, reflecting some existing policy and legislative arrangements. However, there are some exceptions where they will be retained for longer periods. For example, when a foreign national is permanently settled in the UK we will retain their fingerprints for anti-fraud purposes. More crucially, when we consider a foreign national to pose a serious risk of harm to the UK, such as those subject to deportation orders, we will retain their fingerprints beyond 10 years so that we can identify them should they attempt to return to the UK.

We remain satisfied that the biometric immigration document scheme and the other changes these instruments implement comply with UK legislation on human rights and discrimination and that they assist not only those authorities attempting to prevent immigration fraud but protect and assist legitimate migrants by providing convenient and easily verified evidence of their immigration status.

Finally, the order makes an unrelated change to ensure that leave granted to partners and children of members of HM Forces does not lapse after two years where they are accompanying their spouse on an overseas posting.

That is what these instruments seek to achieve and I hope that noble Lords will support them. I beg to move.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Baroness for her explanation of the five statutory instruments that we are debating together. These instruments are relatively straightforward, and we normally support the use of biometric data. As the noble Baroness said, its use can help reduce fraud. It is also in the interests of the citizen, particularly foreign-born citizens who need to prove their eligibility and status. It also protects the state. However, I also have a number of questions that I have picked up from the orders, the Explanatory Notes and from what the Minister was saying.

The Explanatory Memorandum for the British Nationality (General) (Amendment) Regulations and the Immigration (Provision of Physical Data) (Amendment) Regulations says that the regulations,

“expand the range of immigration and nationality applications for which the applicant can be required to provide biometric information”.

Is this part of a process? Is it being expanded at this point, and will further amendments come forward, or is this to ensure that we have the processes in place that we now need? Is the noble Baroness expecting a further order in that regard?

I was also curious about this; I ask out of personal interest for a friend. Paragraph 7.4 of the Explanatory Memorandum says that,

“those physically unable to provide fingerprints will only have to enrol a facial image”.

A friend of mine who had very clear fingerprints at the age of 18 now finds at the age of 70 that she and her sister are losing their fingerprints. Trying to gain access to America on a holiday proved somewhat difficult; she was whisked away for further examinations. Does that mean that a lower level of proof of identity is required, or is there some other way to have additional checks, as well as a facial image?

Both Explanatory Memorandums for all the regulations say, under consultations, that there have been,

“discussions with the Information Commissioner’s Office and the Biometrics Commissioner”,

although there have been no full public consultations. The memorandums say:

“These Regulations reflect those discussions”.

Does that mean that the commissioners recommended any changes? As the noble Baroness will be aware, we had these regulations in our diary some weeks ago. They were suddenly pulled because there were mistakes and things that had to be corrected. They have now been brought back. It would be helpful to know the reason for that and whether any of that was because of changes suggested by the Information Commissioner or the Biometrics Commissioner.

The Explanatory Memorandum for the British Nationality (General) (Amendment) Regulations and the Immigration (Provision of Physical Data) (Amendment) Regulations says:

“The majority of the responses were favourable although some respondents were concerned about potential equality and discrimination issues”.

Have the Government addressed those issues? There were 60 responses; can the Minister tell me how many of those raised concerns about this? If it was one or two, I hope that those issues could be addressed relatively easily. If they are a significant number and those issues have not been addressed, that would give cause for concern.

My final point on these two regulations—I know we are discussing them as a whole, but I have some points on the others as well—is that both Explanatory Memorandums say:

“The Home Office will monitor the impact of these Regulations against its delivery targets and the impact of the policy”.

The memorandum to these two regulations says:

“This will be achieved through discussions with internal and external partners”.

That does not seem a very systematic way of reviewing anything. Is it because there is a heading and template that says “monitoring and review”, and the Government think, “Gosh, what are we going to put under this heading? We have to say something about review. We’ll say we’re going to discuss it”? Who are the internal and external partners? How will the discussions be conducted? What feedback will there be? How will they be monitored? This seems very woolly. I wonder whether that paragraph was put in without any great thought as to what is happening. Can the Minister give me some further information on that?

I have a couple of other points. The Explanatory Memorandum states that if someone,

“does not collect their biometric immigration document within the period specified … they will face a warning and then possible sanction under the Code of Practice”.

I apologise if I missed this, as I was not always able to go back to the original legislation that these regulations amend. Someone could have a problem or might foresee a delay in obtaining their document: they could be ill; they could have had to deal with a sick relative; they may have a temporary document here but suddenly have to return to their country of origin for some reason. There could be a whole host of reasons why somebody could not immediately collect it. Is there any process by which they can come to an arrangement with the Home Office to say, “There isn’t a problem, I want to collect it, but for these reasons I can’t”? There does not seem to be anything in the regulations to allow for that kind of discussion or appeal. There may be times when there is not a good reason, but I can think of circumstances where there could be a good reason for not being able to collect in the time given. The memorandum just says,

“the period specified in the written decision”.

How long will that be? Will it vary according to a decision? It will be helpful to know how that time would be arrived at.

--- Later in debate ---

[Baroness Williams of Trafford]

I thank the noble Baroness for her questions. I will attempt to answer some of them and will follow up the rest in writing. She made a very good point about people who are unable to provide additional evidence such as fingerprints simply because their fingerprints had faded. Every applicant will need to provide a facial image but children aged under five and those physically unable to provide fingerprints will not be required to do so. As regards what the additional proof will be, based on my knowledge, that will suffice for a child under five and for somebody unable to provide—

[Baroness Smith of Basildon]

I hoped that the relevant note would provide further clarification but all the noble Baroness has done is to read out the reason why I asked the question. I asked what additional proof would be required. Some people are unable to provide fingerprints for very genuine reasons, such as the friend I mentioned. We have all watched films on television in which people try to destroy their fingerprints. That is why I asked whether a mechanism was in place which provided the additional proof required and could distinguish those who are genuinely unable to provide fingerprints from those who have sought not to do so.

[Baroness Williams of Trafford]

I totally understand where the noble Baroness is coming from. My understanding is that if someone is unable to provide fingerprints, they will not be required to do so. However, on the point about maliciously or deliberately removing evidence of fingerprints, I hope that she will allow me to write to her with that additional information.

The noble Baroness also asked about the sanctions for non-compliance as regards unavoidable non-collection. A person arriving in this country will have 10 days in which to collect their BRP card, so delay in the country of origin would not be applicable because the time required is 10 days from arriving in this country. A warning letter would be issued to the customer, giving them 10 days to respond and to explain why a sanction should not be imposed. At that point the person could give a perfectly valid reason why he or she had not turned up to collect their card. However, if there is no response, or an inadequate response is given, and continued non-compliance and lack of communication ensue, the Secretary of State can issue a civil penalty notice with a fine. I hope that that deals with the point.

[Baroness Smith of Basildon]

The noble Baroness says that they can be issued with a notice and will receive a fine. Will they lose their citizenship if they never respond in any way?

[Baroness Williams of Trafford]

My Lords, it could end up with cancellation of leave if there was absolutely no communication or reason for not collecting the BRP document, so the answer is: possibly yes, but it depends upon the circumstances.

The noble Baroness also asked what communication has taken place with potential customers and organisations affected by the introduction of overseas BRP applications. I understand that a comprehensive online communication strategy has been implemented which explains the change to anyone applying for a visa, and that they will receive a BRP if their application is successful. The proposed changes to the code of practice regarding the new requirement to collect the BRP in the UK were subject to consultation, and although the responses will be brought together in the final published consultation report, every response was replied to individually to help raise awareness of the introduction of the overseas applications for BRPs.

The noble Baroness asked whether the Information Commissioner recommended any changes. The answer is no; the commissioner sought an explanation of the changes we proposed, and the explanation was to make the retention powers more targeted. They questioned the retention of photographs if a citizen can get a passport but we explained that this—I really wish I could read some of this handwriting but I cannot. However, the basic answer is: no, but they sought an explanation. Perhaps I may write to the noble Baroness on the second point.

There is another point here about damaged fingerprints. Biometric supervision will make a decision to exempt a person from providing their fingerprints which have already been through. People who damage their prints will be asked to enrol them on a later occasion, and there is a full policy regarding these issues for the caseworkers who enrol biometric information.

The noble Baroness’s first question was whether this will be expanded to require biometric information from those making other immigration applications. The existing statutory provision for allowing regulations to be made to require the provision of biometric information—Section 126 of the Nationality, Immigration and Asylum Act 2002—was amended by the Immigration Act 2014 to add the possibility of requiring the information from those non-EEA countries exercising EU law rights and direct airside transit visas, and the amendments to the provision of physical data regulations are made to implement that.

As regards feedback from businesses, we have discussed the new process with a number of large immigration law firms and will continue to engage with the business sector. The general response has been recognition of the common-sense solutions that we have put in place for business; for instance, around right-to-work checks.

As for why the dates of the debates on these instruments have changed, the JCSI raised a technical drafting point about defining the term “short-term biometric entry clearance”, so the instruments have been amended to address that. As for the point on public consultation, public consultation before implementing overseas BRPs was not thought appropriate due to continuation of the in-court BRP process under the UK’s legal obligation to comply with EU regulations.

[Baroness Smith of Basildon]

My question was not about consultation on the policy but about consultation on the implementation. The Minister mentioned businesses. I was not sure whether she was trying to address the same point.

[Baroness Williams of Trafford]

I will write to the noble Baroness to clarify that.

We estimate the cost of requiring biometric enrolment for the new category of people to be about £1.8 million annually. In addition, we estimate a one-off cost for electronic deletion of biometrics of £1.3 million and a £1 million annual cost for the physical destruction of biometrics, although we estimate that this will be only some £0.5 million in 2015-16. I think that I have answered most—

[Baroness Smith of Basildon]

I asked questions on all the orders regarding the monitoring and review. If the Minister does not have notes on that, I am happy for her to write to me, because it is quite an important point.

[Baroness Williams of Trafford]

I will certainly write to the noble Baroness on that.

Misuse of Drugs Act 1971 (Amendment) Order 2015

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Thursday 29th January 2015 Grand Committee

[Baroness Williams of Trafford (Con)]

My Lords, the draft order, which was laid before Parliament on 17 December 2014, supports the Government’s ongoing efforts to disrupt the supply of new psychoactive substances where the evidence and expert advice from the Advisory Council on the Misuse of Drugs—the ACMD—indicate that they are dangerous drugs. This House recently approved an order updating the UK’s drug controls to protect the public from the serious risks associated with a number of such substances, which came into force on 7 January.

Today’s order will bring under class A control two substances: one being MT-45 and the other 4,4’-DMAR, which I will refer to under its street name, Serotoni, because it is easier to pronounce. I commend our expert adviser, the ACMD, for its ongoing and intensive work on monitoring the available evidence and advising the Government on actions to take against any number of new psychoactive substances that have the potential to cause serious harm, including legislative intervention necessary to protect the public.

The ACMD advises that MT-45 is a potent analgesic similar to morphine. It was developed by a Japanese pharmaceutical company in the 1970s and subsequently abandoned. It has similar health risks to already controlled opioids, including respiratory depression, coma and death. In some instances, loss of hearing was also reported. Although this compound has not been detected through the UK’s early-warning mechanisms, it has been identified in other EU countries and linked to a number of fatalities in Sweden.

Serotoni is a synthetic stimulant drug which has been detected in a number of EU countries, including the UK, and linked to harms including agitation, convulsions and hyperthermia. In a number of cases, these symptoms were followed by death. In late 2013, there were reports of sudden deaths from substance abuse in Northern Ireland. It was not obvious that they were related due to incidences of polysubstance use and drug bingeing or to users simply not knowing what drug they took, but following the completion of 20 inquests into these fatalities in the summer of 2014 they were linked to Serotoni.

The Government further intend to make two statutory instruments to complement the order, as recommended by the ACMD. These instruments, subject to the negative resolution procedure, will designate and schedule MT-45 and Serotoni as drugs which have no known legitimate uses beyond the research sector in order that they will remain available for research purposes under Home Office licence. I also wish to bring to noble Lords’ attention that these two substances are being considered for EU-wide control. Having received the ACMD’s advice and considered the evidence on harm as required under our laws, we are in a position to ban these drugs to protect the British public at the earliest opportunity. I commend the order to the Committee.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for that explanation. We welcome the order. It is one of a series of orders we have considered on which we have discussed issues around so-called legal highs. I know that neither she nor I like that term but, unfortunately, it is the one used in the Explanatory Notes. It is in inverted commas, so perhaps that justifies it, and “new psychoactive substances” clearly does not roll off the tongue in the same way. However, such terms are one of the things that cause young people to misunderstand and think they are doing something funny and safe when that is the last thing they are doing. I also thank the Advisory Council on the Misuse of Drugs for its work. Its explanation of the dangers is very helpful. We are not the experts on this; we rely on the experts. The council’s expertise leads us to only one conclusion: that these drugs should be banned.

Perhaps I may check one thing that the Minister said. She said that this drug has not been seen in the UK—I think that that is in the Explanatory Notes as well—but is available in Europe. In fact, it is available online, which means that it is quite likely that it could be in the UK. I come back to a point that I have made many times. Unless we tackle and get to grips with online sales—which means looking internationally but also at head shops and other suppliers of drugs— we are not going to be able to tackle this. The order therefore has our full support. I simply add the rider that I am very worried about this increase: you just have to go online and Google some of these drugs and you can find out where to get them. We support the order.

[Baroness Williams of Trafford]

I thank the noble Baroness for her helpful comments. I fully agree with her points about glamorising these drugs by using the unhelpful term “legal high”, the online availability of some of these drugs and the head shops continuing to try to race ahead of where the legislation has got up to. I commend the order to the Committee.

Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2014

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Thursday 27th November 2014 Grand Committee

[Baroness Williams of Trafford (Con)]

My Lords, this order was laid in Parliament on 7 November. It is part of continuing efforts to tackle the trade in so-called “legal highs”—a term which is unhelpful. On 30 October the Government published their response to the expert-led review into new psychoactive substances. They have set out an enhanced package of measures that includes looking at the feasibility of new legislation in this challenging area.

The Misuse of Drugs Act will remain the cornerstone of the Government’s legislative actions to curtail the availability of these new drugs where there is expert advice on their harms. The order being debated today is one part of the Government’s actions, which they continue to pursue with full vigour.

I would like to thank the Advisory Council on the Misuse of Drugs for its continued support in reviewing the evidence base on new psychoactive substances sold as legal highs that have the potential to cause harm. The ACMD’s considerations and advice continue to inform the Government’s response to these drugs. Noble Lords will wish to note that the legislative measures the Government are proposing through this order are entirely in line with the ACMD’s advice.

If made, this order will specify for control the synthetic opioid AH-7921 and a number of LSD-related compounds, commonly referred to as ALD-52, AL-LAD, ETH-LAD, PRO-LAD and LSZ. The order will also extend the definition used to control the family of tryptamines to capture compounds such as alpha-methyltryptamine as well as 5-MeO-DALT for control under the Misuse of Drugs Act 1971.

The Government have received advice from the ACMD that the drugs to be controlled are being misused or likely to be misused. In the ACMD’s view, their misuse is having, or is capable of having, sufficiently harmful effects to warrant legislative action under the 1971 Act. Legislative action is necessary as a result of the real and potential harms identified by the ACMD. This action will send out a strong message to those who are considering experimenting with these drugs and help the Government to target their public health messaging in order to protect the public. It will also allow enforcement partners to prioritise resources accordingly to tackle the sale and supply of these drugs, sending out a strong message to those who trade in these harmful drugs, including high street “head shops”.

The Committee will be aware that this Government and the ACMD continue to monitor, through UK and EU drugs early warning systems, emerging substances marketed as legal alternatives to controlled drugs. This work has informed the ACMD’s deliberations and, as appropriate, its current advice to update our drug laws in relation to the new psychoactive compounds being controlled.

AH-7921 is a potent synthetic analgesic developed over 40 years ago by Allen & Hanburys pharmaceutical company in the UK. The ACMD reports that,

“the compound was not developed further, presumably because animal studies revealed a high addictive potential”.

AH-7921 has recently become available as a new psychoactive substance. It was first detected in Europe in July 2012. Since then a number of drug-related deaths have been reported in Europe, including three related deaths reported by the National Programme on Substance Abuse Deaths in the UK in 2013. AH-7921 is reported as being highly addictive, with a potency similar to morphine. Harms from the misuse of this drug are reported to include difficulty in breathing, severe pain and death.

The LSD-related compounds are potent hallucinogens which currently evade UK controls on this family of drugs. These compounds are reported as being offered for sale on specialist websites devoted to hallucinogens as new psychoactive substances. The harms associated with the misuse of these compounds are reported to include euphoria, hallucinations, rapid heartbeat and depression. These compounds are also known to cause acute mental health disturbances.

The tryptamines are hallucinogens, a large number of which are already controlled via a generic or group definition under the 1971 Act as class A drugs. The ACMD reports that in recent years there has been a significant interest in hallucinogens of this type. A number of these substances, which fall outside the current group definition, are being offered for sale as new psychoactive substances. Two in particular, commonly referred to as AMT and 5-MeO-DALT, have been encountered through the Home Office forensic early warning system. AMT was linked to the tragic deaths of Adam Hunt and Christopher Scott last year.

The physical effects of the tryptamines are reported as visual illusion, hallucination and euphoria, among others. The ACMD also reports a small number of confirmed post-mortem toxicology reports, rising from one in 2009 to four in 2013, with AMT being the most frequently linked to reported tryptamine deaths. For all these reasons, the Government accept the ACMD’s advice to extend current controls to these compounds as class A drugs under the 1971 Act.

The Government intend to make two further, related statutory instruments, which will be subject to the negative resolution procedure. The Misuse of Drugs (Designation) (Amendment No. 2) Order 2014 will amend the Misuse of Drugs (Designation) Order 2001 to place the compounds being controlled in Part 1 of the order as compounds to which Section 7(4) of the 1971 Act applies. These compounds have no known legitimate uses outside research. Their availability for use in research will be enabled under a Home Office licence.

The Misuse of Drugs (Amendment No. 3) Regulations 2014 will amend the Misuse of Drugs Regulations 2001 to place the compounds being controlled by this order in Schedule 1 to the 2001 regulations, as they have no known or recognised medicinal uses. These instruments will be laid in time to come into force at the same time as the Order in Council, if it comes into force as proposed. The Government will publicise the approved law changes through a Home Office circular. I commend the order to the Committee.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the noble Baroness for the detail on this. The explanation she gave was very helpful. I also congratulate her on her pronunciation—these are not easy words; they have foiled many a Minister. However, the complications are more than just verbal when we look at the detail of the complexities of the compounds that we are seeking to prohibit. This order was actually laid in July and had to be withdrawn because of a mistake. That indicates how complex these issues are and how important it is that we get it right.

Too often, these drugs are referred to in a phrase that I do not like: “legal highs”. Sometimes the only reason that they are legal is because of the technicality that no one has got round to banning that particular compound yet, even though it has a very similar effect to another. That might be the initial reaction to these highs, but in too many cases they lead to death or very serious illness or psychosis, so it is right that action is taken against them. One thing that gives cause for concern is the growing number of artificial drugs—created or synthetic compounds—on the market. The Government’s approach now, of looking at groups of compounds rather than trying to ban an individual one so that when there is a slight change in the make-up another one has to be banned, is a much more sensible approach and one that we welcome.

I will just ask something briefly about process. There are two questions here. The Government sought advice from the ACMD on this order and it fully supports it. It is always helpful where there is consensus in these matters. Is there a process by which the ACMD can draw the attention of the Government to drugs being used on which it thinks action should be taken? Is there a two-way process?

The Minister referred to other orders coming before us. I think that this is the fifth order on the Misuse of Drugs Act that I have spoken to, so a number of substances have been banned already. We need to ensure that the action that we are taking is effective. There is no point in us sitting here, with the Minister having to learn the names of the drugs and read them through, with the immense work that goes into preparing such orders and the advice from the ACMD, if at the end of the day it is not going to have much effect. How many prosecutions have there been in line with all that has been done already in respect of substances and compounds that have been banned, and how many seizures of drugs banned in previous orders have we seen? Has any assessment been made or evidence emerged of a decline in their use? I am happy not to receive answers today, but I am looking for reassurance that when we take such action it does have an impact and makes a difference. With those points and questions, we give our support to the Motion.

[Baroness Williams of Trafford]

I thank the noble Baroness for taking part in this quite brief discussion of a matter which—I think there is general consensus—needs to be tackled. Obviously, approval of the order will ensure that our drug laws remain effective and assist law enforcement to restrict the availability of compounds that have no legitimate use outside research.

The noble Baroness mentioned how unhelpful the term “legal high” is—because, as she said, the only reason that a substance is a legal high is that it has not yet become an illegal high. She also referred to how complex the whole thing is, because we are almost running to stand still, given the number of new compounds and substances being developed.

The noble Baroness asked whether the ACMD can take a proactive as opposed to a reactive approach if it gets intelligence on new drugs that are being developed. Given that it is a two-way dialogue, I assume that the answer is yes, but if it is any different from that, I will let her know. The expert panel made an assessment of our approach and concluded that we should build on it, but I am happy to write to the noble Baroness on that point.

On the increase or the decline in use, the use of new psychoactive substances among the general population remains relatively low overall compared to that of some of the traditional illicit drugs, with 0.6% of adults—that is, 16 to 59 year-olds—reporting use of mephedrone in the last year compared to 6.6% for cannabis, 2.4% for powder cocaine and 1.6% for ecstasy.

[Baroness Smith of Basildon]

That does not address the point that I am making; it tells us about the average use. What I am trying to do is understand the impact of orders such as these. I understand what the use is in the UK; I want to know whether the orders are having any effect. I am happy for the Minister not to answer today but to write to me, because I think that is a more complex question.

[Baroness Williams of Trafford]

I will clarify that in a letter.

I think that I have answered the two main questions. I am happy to write with detail on the other questions that were asked. In light of that, I commend the order.

Azure Card

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Thursday 20th November 2014 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have taken part in this debate, particularly my noble friend Lord Roberts who is a very passionate advocate on this subject, as the noble Baroness, Lady Smith, said. I agree with the noble Baroness that this has been a thoughtful debate and, I think, a constructive one.

It is probably best if I set the background to this debate. The Government provide support and assistance to destitute asylum seekers by using the powers in Section 95 of the Immigration and Asylum Act 1999. This type of support generally consists of accommodation and a cash allowance to cover the person’s essential living needs. We provide this assistance to enable us to meet international obligations, most particularly by ensuring that persons seeking asylum, many of whom will, of course, have a genuine case, are not forced to abandon their claims and return to their countries because of destitution.

We do not usually accommodate or otherwise assist failed asylum seekers because in the vast majority of cases they can reasonably be expected to avoid the consequences of destitution by returning to their own countries. However, as an exception, we provide a different type of support under Section 4 of the 1999 Act—many noble Lords have mentioned this—where there is an unavoidable obstacle preventing the person’s immediate departure: for example, if they are too sick to travel or need time to obtain a necessary travel document. The noble Earl, Lord Sandwich, asked why people would be on that type of support. We also provide assistance to failed asylum seekers who have made further submissions relating to their asylum claim which, although found to be without merit in the vast majority of cases, have to be dealt with through a process that takes time. Different types of assistance therefore serve different purposes.

Section 4 assistance consists of accommodation plus a weekly allowance to meet essential living needs. The allowance is provided through the Azure card, which can be used to buy food and other essential items. The value of the allowance is rightly less than the allowances provided to asylum seekers, reflecting the different purposes of the separate support systems. One is aimed at meeting the needs of people still seeking asylum, a substantial number of whom will be granted refugee status and have a long future in the UK. The other offers a temporary fix for people who are not refugees and in nearly all cases need to be making arrangements to go home.

The legislation explicitly rules out cash being provided, as a result of an amendment brought in by the previous Government via the Immigration, Asylum and Nationality Act 2006. This Government have looked at the matter afresh, as a result of the proposed amendments to the Immigration Act passed earlier in the year, but have no plans to change the law. Many noble Lords have touched on this. We need to provide a balance between meeting people’s basic living needs and processing their asylum claims in an efficient and speedy manner. However, we are always looking at ways of improving the operation of the card. Officials talk regularly to voluntary sector providers and partners about how such improvements can be made. As one practical example of this co-operation, we will shortly be bringing in changes to allow card users to carry over extra credit on the card from one week to the next. This suggestion was made by the Red Cross in a recent report and by many noble Lords in the Chamber today and I am pleased to be able to make this announcement. Currently, credit is limited to £5 unless the person has children. The change is designed to enable people to plan how they spend their allowance more effectively.

We are also considering how we can implement sensible suggestions about providing further information about the terms and conditions of the card and clearer information about how to apply for extra assistance that is available to those on Section 4 support; for example, the provision of travel tickets not only to attend essential medical appointments but to undertake other types of necessary travel.

We also look for opportunities to extend the range of outlets that accept the card, although this is ultimately a matter for the particular retailers. In the run-up to this debate, we again approached other retailers such as Aldi and Lidl. They are not willing to have the card at this time. In the round, the Azure card is essentially a pre-paid debit card that can be used at most of the main UK supermarket chains. It serves substantially the same purpose as other debit cards used by shoppers. The Government are satisfied that it is an effective means of ensuring that those on Section 4 support are able to buy food and other items to meet their living needs. It is a shame that other outlets will not accept the card. I do not think that there is an impediment to their accepting the card. My noble friend Lord Roberts and I have spoken about this. Ultimately, a bit more of a push might be needed from voluntary organisations—indeed, from Members of your Lordships’ House—to encourage them to do so.

I turn to points made by noble Lords in the debate. My noble friend Lord Roberts brought up a number of points, the first being on the thanks that we owe to the voluntary organisations that provide different types of support not just to failed asylum seekers but to asylum seekers generally. I echo my noble friend’s comments. Without the voluntary sector, this country would be a poorer place in all sorts of ways. He talked about the Red Cross survey, which should probably be seen in context in that it sampled only 11 people. I am not decrying any of its findings, but the sample was quite limited. He and other noble Lords talked about travel to legal offices or health services. All asylum seekers, or failed asylum seekers under Section 4 support, are always housed within two to three miles of shops. However, I take on board a comment made by the right reverend Prelate about somebody living next door to a shop that they cannot actually use. That was a good point and additional pressure needs to be put on those shops to be a bit more accommodating. I have no reason to believe that they cannot accept the card.

My noble friend talked about replacing the card with cash. This goes back to the point about striking the right balance between processing claims quickly and not having a system that incentivises new claims that might not have been made were it not for an easier system. I am not saying we should make the system difficult for people, but we should try to prevent encouraging new claims. He talked about dignity, mental health, and so on, and the noble Earl, Lord Listowel, talked about the anxious effect on families. I cannot disagree that somebody with a family who not only sought asylum but had the claim refused must be in a state of extreme anxiety. The noble Earl mentioned a pregnant woman, for example, and the effect on foetal health must be extreme. Again, that goes back to needing to process claims quickly—70% of appeals are processed within six months. However, that does not undermine the figures for the people who stay here for more than a year, and as the noble Baroness said, sometimes up to six years.

The noble Baroness, Lady Smith, asked about the number of people on support for under a year. That figure is 684. I will come back to her on the two-year figure, which she asked for, but the number of those on support for more than a year and fewer than five years is 3,013. There is no doubt that the system needs to be speeded up. The speedier it is, the less anxiety will be caused to families.

My noble friend Lord Roberts also asked about the administrative costs of the card. It is not hugely expensive; it is about £200,000 per year, and there is a helpline. I was shocked to hear—I think I heard it right—that overuse of the helpline could lead to charges. I am happy to be corrected on that.

[Baroness Smith of Basildon]

No, that was in the note prepared by the House of Lords Library. The Asylum Support Appeals Project reported that and that is something that has to be looked at.

[Baroness Williams of Trafford]

I would be happy to come back to the noble Baroness on that, because it is a good idea for people to want to know exactly where they are up to in terms of their credit limits, just as we may want to know where we are up to on our bank accounts.

The noble Earl, Lord Sandwich, asked why people are here. I hope that I have explained the reasons why people would be on Section 4 support. My noble friend Lord Attlee spoke about the contribution of immigrants to this country. When we talk about immigration now, we often talk about it almost as a scourge. However, this country is a nation of immigrants and, speaking as an immigrant, I can say that many of us have contributed both to the economy of this country and to its cultural richness. Nevertheless, we have to get it right in terms of people who are coming to contribute to the economy and those who, as my noble friend pointed out, will risk their lives to come here for reasons other than work.

My noble friend also asked whether the Government would reconsider the level of payments on the card. I understand that the Government reconsider this every year, and at this point we do not intend to increase the level. I also take the point made by the noble Baroness, Lady Smith, about the High Court ruling, and I will write to her and to my noble friend on that subject, in terms of the level of the payment, and put a copy in the Library.

The noble Earl, Lord Listowel, asked about the numbers on Section 4 support. The numbers are about 5,000, and 70% of the claims are processed within six months. Of course, that means that 30% of claims are not processed within six months.

[Baroness Smith of Basildon]

The noble Baroness says that 70% of the claims are processed. Does she mean that 70% of the applications received the money in that time, or for that time?

[Baroness Williams of Trafford]

When a claimant is appealing a failed claim, they will be paid during the time of their appeal—yes. I hope that that answers the noble Baroness’s question.

The noble Earl also talked about the cost to families in terms of dignity, and the stigma of being not just an asylum seeker but a failed asylum seeker. I have to concur with that. Again, the more quickly we can process the claims, the better. There is also the travel issue, which I think I have already addressed.

The right reverend Prelate the Bishop of Worcester said that the card can be used only in certain outlets. Again, I hope I have addressed that point by explaining that the card can be used only in outlets that wish to accept it. The right reverend Prelate talked about someone living next door to a shop but not being able to use the card in it. He also talked about allowing flexible use of the Azure card or abolishing it. The Government have no intention of abolishing the card, but I agree that if markets, or any other retail outlets, were more willing to accept it, that would make the process easier and more dignified for all involved.

My noble friend Lord Naseby asked what happens if a card is refused. My understanding is that it will be replaced, or vouchers will be provided immediately. Obviously, there is a helpline to ring. I do not think that anybody would be left hungry because of a failure of the card. He also asked about carryover, and I am pleased to say that carryover would now be allowed without restrictions. He also talked about the range of supermarkets—I think I have gone through that—and about transport. We are continuing to look at where transport arrangements can be more flexible. Certainly, someone on Section 4 support can apply for travel tickets to see a doctor, to go to the Home Office or to access legal support. My noble friend said that the UK was a most generous country. That is true. We pride ourselves on our democracy and our rule of law, on our compassion and on how we treat asylum claimants. But obviously there remain some efficiencies to be derived in the asylum system where claims have failed.

I think that I have addressed all noble Lords’ points. I hope that I have addressed those made by the noble Baroness, Lady Smith, sometimes by weaving them in to my responses to various other noble Lords. She said that anyone going through an appeal is on Section 4 support, and that is absolutely correct; I think that was in response to a point made by my noble friend Lord Attlee.

[Baroness Smith of Basildon]

My understanding is that Section 4 support comes after somebody has exhausted the appeals system.

[Baroness Williams of Trafford]

They are appealing against their failed application; it is during the appeal process, I understand. I will write to the noble Baroness, because I am not sure that she is satisfied. It is when an asylum seeker has had their asylum claim rejected and is appealing against that.

I shall now conclude, because my time is up. I will check whether there is anybody whose questions I have not answered sufficiently, and if so I will write to them in due course.

Alcohol: Sale to Children

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Wednesday 19th November 2014 Lords Chamber

[Baroness Williams of Trafford]

My Lords, it is my understanding that concerns were not raised by any health bodies on the matters that we are discussing today.

[Baroness Smith of Basildon (Lab)]

My Lords, I would press the noble Baroness on this, because there is some confusion. In Committee, when this was discussed, the noble Lord, Lord Wallace, who was answering for the Government, said that it was not a matter for business and business had not asked for this. He thought it was a retail issue. However, the consultation policy briefing document from the Cabinet Office says:

“The proposal has not been part of the public consultation, but was suggested by business”.

Given that there are some concerns, which may or may not be justified, about deregulating the sale of liqueur chocolates to children, would it not be better, as the noble Lord said, to consult those who have an interest in public health and are concerned about alcohol misuse, and ask what their views are? Would that not be the more sensible way forward on an issue that is becoming controversial?

[Baroness Williams of Trafford]

My Lords, obviously I was not there on the Deregulation Bill, but it is my understanding that this consultation was open to anybody who wished to respond to it. It was widely advertised on the government website and, as I just said to the noble Lord, health bodies did not raise concerns about liqueur chocolates on this theme of restricted goods.

Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Monday 17th November 2014 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, usually where there is no limit on time for debates such as this, it is advised that people keep within 15 minutes— but given the lateness of the hour, perhaps the general principle of the House is that people keep their contributions brief.

[Baroness Smith of Basildon (Lab)]

My Lords, it seems to me completely unreasonable for the Government to schedule this debate so late at night—it did not start until three minutes before nine o’clock—when a number of Members wish to speak: noble Lords with considerable expertise on this issue. The Government’s response is to tell them to keep speeches short. That is completely and totally unreasonable.

[Baroness Williams of Trafford]

My Lords, it is not unusual to refer to the Companion on the general principles of conduct of the House. We have had the Modern Slavery Bill and the Statement today, which were expected to conclude earlier than they did. I am just giving guidance.

Children: Alcohol Harm

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Monday 17th November 2014 Lords Chamber

[Baroness Williams of Trafford]

I totally agree with my noble friend.

[Baroness Smith of Basildon (Lab)]

My Lords, I wonder whether the Minister would like to reflect on a couple of the answers that she has given. She said that the Government are considering minimum alcohol pricing, yet the Home Secretary said that—no ifs, no buts—the Government would introduce it. I would also like the Minister to clarify the point that she made in answer to my noble friend Lord Brooke of Alverthorpe, who raised the issue of alcohol being able to be sold in forms other than liquid to those under 16. Will she confirm, as she implied in her answer, that that is not the case and that the Government’s proposals in the Deregulation Bill will not make any changes in that regard?

[Baroness Williams of Trafford]

I said that minimum unit pricing was “under consideration”. It is, and the case of Scotland is being closely watched. On alcohol in forms other than liquid, the rules set a limit of 0.2 litres per kilogram of confection. That is to stop vast quantities of alcohol being put into food. That is the situation as I understand it.

Serious Crime Bill [HL]

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Wednesday 5th November 2014 Lords Chamber

[Baroness Williams of Trafford]

My Lords, these drafting amendments simply seek to split Clause 67, which, as amended on Report, now deals with two distinct, albeit related, issues; namely, the extension of the extraterritorial reach of the offences in the Female Genital Mutilation Act 2003 and conferring lifelong anonymity on the victims of FGM.

I look forward to hearing what the noble Baroness, Lady Smith, has to say about her amendment before responding to it. I also understand that the noble Baroness, Lady Meacher, would like to put on the record some further observations about her proposed new offence of encouragement of FGM. For now, I beg to move.

[Baroness Smith of Basildon]

My Lords, I am sorry not to hear further from the Minister about her amendments. We had a very helpful and productive debate on Report, where it was clear that your Lordships’ House was united in a desire to tackle FGM. The government amendment was welcomed, but it was agreed that the issues raised by our amendments, which I have again tabled today, were both valid and reasonable. There was no policy disagreement; the difference was one of approach and what would be most effective in achieving the aims that we all share.

The noble Lord, Lord Lester, emphasised the need to use civil law and family courts. The noble and learned Baroness, Lady Butler-Sloss, agreed with him and said:

“I would like to see what is good in each set of amendments put together”,

and expressed the hope that,

“the Opposition and the Government will get together … and thrash out what would be the best of everything and get that into one list that could go into Third Reading”.—[Official Report, 28/10/14; col. 1092.]

That explains why we have retabled our amendment here at Third Reading. We felt that the House would want to hear what progress we have made in those discussions.

There were two issues of difference between us and the Government. I say “difference” rather than “disagreement”, as the whole approach on this matter has been consensual. Our intention in tabling amendments is to ensure that the legislation, and its application, is the best it can be. That is why we sought advice not just on policy but from leading practising lawyers in this area. I put on record my thanks and appreciation to Kirsty Brimelow from Doughty Street Chambers and the Bar Human Rights Committee and Zimran Samuel from 42 Bedford Row Chambers. Their considerable practical experience and expertise have been of enormous assistance in understanding all the implications of the proposed legislation. We are grateful to them also for attending the meeting we had with the Minister and her officials. I am also grateful to Catherine Meredith of Doughty Street and Dexter Dias of Garden Court Chambers. I am not a lawyer, but I felt that I needed to be absolutely clear on the implications of the amendments before us—not just how they would be implemented in theory but how much difference they would make in practice. There is old saying: in theory, theory and practice are the same, but in practice they are often different.

As legislators, we must be concerned about practice— the very point made by the noble Lord, Lord Lester, and the noble and learned Baroness, Lady Butler-Sloss— when debating the use of civil law. There are two issues of difference, both relating to the Female Genital Mutilation Act 2003. We welcomed the Government’s support for our calls for FGM protection orders and were grateful to them for bringing forward their own amendment on Report. The issues of difference that merited further consideration were highlighted by the Bar Human Rights Committee, whose members proposed such an order in the first place and are experts in this area.

The first issue relates to where the orders sit in relation to civil and criminal law, and which Act the amendment relates to. It might seem just an academic argument, but if that were that case, I would not raise it today in your Lordships’ House. The 2003 FGM Act, which the government amendment seeks to amend, is a criminal statute and not necessarily familiar to family law practitioners. The Family Law Act 1996, on the other hand, is their first port of call. Forced marriage protection orders, which are used all the time in the family court, are in the Family Law Act and have been successful. Having FGM orders also in the Family Law Act would mean that they would sit beside and complement the existing regime for the protection of children in the Children Act 1989.

I appreciate that the Government’s proposal remains a civil order, but it is a civil order within criminal legislation. Those who are involved in family courts told us of the practical reasons why not all family court lawyers would know, understand or appreciate that they should also look to criminal law statutes for civil measures.

There is the issue of the deterrent factor for those whom we want to come forward, when a civil measure lies within criminal law. The difference may be understood by criminal lawyers or across the Dispatch Box in your Lordships’ House, but it is not necessarily understood by those whom the orders seek to protect.

I totally understand that from the Government’s point of view it makes policy sense to have all the legislation relating to FGM in one place. It sounds logical. But when those who will use this law, and who really care that we get it right, tell us that it could make application for and gaining of an FGM order harder and therefore less likely, I feel obliged to take their views and experience into account. What matters is what works in practice.

The second issue is about the definition. As I explained in Committee, the government amendment uses the definition in the 2003 Act. The Government believe, as was the intention when we reintroduced the legislation in 2003, that this covers reinfibulation. I am not going to test your Lordships’ House again with an exact explanation of what is involved. Last time, “Today in Parliament” put out a warning before I spoke, and gave the programme a G certificate, standing for guidance. I think that is the first time that that has happened, but it does convey some of the brutality and horror of what we are talking about.

The law was intended to include reinfibulation. Any definition or interpretation should include reinfibulation, which involves unnecessary and non-medical restitching to reclose the female genital mutilation following childbirth. However, the Bar Human Rights Committee and Doughty Street lawyers tell us that there is some misinterpretation. That is why we use the World Health Organization definition instead. That would ensure that our law is consistent with recognised international standards and understandings and clarifies any existing confusion around offending conduct such as reinfibulation.

I was reassured on Report by the willingness of Ministers to discuss this further and, as a result, I agreed to withdraw our amendments. The lawyers who advised us attended the meeting with the noble Baroness and her officials. We were looking forward to the meeting, and we were optimistic that we would make the kind of progress that the noble and learned Baroness, Lady Butler-Sloss, and others, had wanted us to make. However, I have to tell your Lordships’ House that we are very disappointed with the outcome. It appeared to us in that meeting that the Government were not prepared to take on board any of the points raised by us or, more importantly, by the barristers who deal with this issue on a regular basis. On the issue of definition the Government are now concerned that such clarification as we have called for could affect any existing or current cases. I am surprised that that was not mentioned on Report. That assessment is questioned, including by senior lawyers who we have spoken to. Perhaps the noble Baroness and I could pursue that at another time.

No one is suggesting that the law is wrong; there is a problem with interpretation. When the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists say that the definition does not include reinfibulation, that seems to me to be an excellent case for clarification. Despite the clear will of your Lordships’ House that such discussions should take place with the intention of ensuring that whatever was brought forward works well in practice, I deeply regret that I do not consider that we had productive discussions. The Government clearly have no intention of making any modifications or improvements in this area.

I do not intend to press the amendment to a vote. The government amendments are not wrong, but they could be better. We believe that this is a lost opportunity, and I ask the following questions.

First, can the Minister tell us what the Government will do to raise awareness among practitioners and the public that these orders exist? Secondly, will she agree to report to Parliament on the number of orders that have been made after, for example, one year of operation —although that might of course be under a different Government—so that the effectiveness can be considered? Thirdly, will she clarify the legal aid position? My understanding is that legal aid will be made available because these are civil FGM orders, even though they sit within criminal legislation. Without such legal aid, these orders would fail. How does the Minister intend to make that clear, or is my understanding of legal aid wrong? Fourthly, will the Government consult on the interpretation of the definition of FGM?

While we are disappointed that we do not have the best outcome, we feel that we have done all we can to make the case. The proposals from the Government are important, they are a significant improvement and we want to see them be as effective as possible.

Child Abuse: Police Investigations

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Wednesday 29th October 2014 Lords Chamber

[Baroness Smith of Basildon]

To ask Her Majesty’s Government what assessment they have made of recent research by the NSPCC into police investigations of child abuse.

[Baroness Williams of Trafford (Con)]

My Lords, we will always ensure that police and other crime-fighting agencies have access to the powers and resources that they need to tackle child abuse in all its forms. The National Crime Agency is currently leading an unprecedented operation against online child abusers in the UK. In the past 12 months it has safeguarded or protected more than 1,000 children, and 706 arrests have been made by forces.

[Baroness Smith of Basildon (Lab)]

My Lords, in July 2012, the Canadian police passed to CEOP—now part of the National Crime Agency—hundreds of names of people involved in downloading abusive images of children here in the UK. It was not until September 2014, over two years later, that Essex police interviewed deputy head teacher Martin Goldberg. He was found dead the following day, with thousands of images of children on his computer, some taken with a secret camera.

Reliable evidence shows that more than 50,000 people may pose a risk to children in the UK—and yet, by the noble Baroness’s own figures, only some 700 have been arrested. The Government say that those who pose the greatest risk are prioritised. How are they prioritised? How many of the 50,000 on the NCA list have been identified as posing the greatest risk, and how many have now been interviewed?

[Baroness Williams of Trafford]

It is fair to say that Project Spade—as it was called—was a very regrettable incident, to the extent that the NCA has actually referred itself to the IPCC. There was no excusing what went on there. In terms of who is prioritised, they are the people who proved the most harmful to children. That is how the priority is worked out.

Serious Crime Bill [HL]

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Tuesday 28th October 2014 Lords Chamber

[Baroness Williams of Trafford]

I apologise to my noble friend. I am sure that if other countries or jurisdictions want to take on our legislation, that would not be a problem. I will confirm that with the noble Lord in a letter and also put a copy of that letter in the Library, but I assume that to be the case.

I have been on my feet for some time, but I hope that I have set out in a little detail the effect of the government amendments. I am grateful to the House for bearing with me and commend the government amendments to the House.

[Baroness Smith of Basildon]

My Lords, I am grateful to the noble Baroness. She need not apologise for having been on her feet for a long time, as she did as much as she could to address the many issues which were raised in the debate.

On the issue of FGM protection orders, I think there is not a cigarette paper between us on what we are trying to achieve. However, I still do not fully understand—I am not a lawyer, but even the noble Lord, Lord Lester, could not help me out on this one—why the Government have chosen this approach and not the family law approach. That is the other point. I will look again in Hansard to see what she said, but given the comments that have been made around the House, I thought there was a willingness from the noble Baroness and from others for the Government to talk to us and say, “Have we got it right? Can we look at this?”.

[Baroness Williams of Trafford]

I thank the noble Baroness, and I think there is a further conversation to be had, perhaps outside the Chamber. I am very willing to engage with her and other noble Lords who may wish to meet with me before Third Reading.

[Baroness Smith of Basildon]

I am grateful to the noble Baroness for that, because we just want to get it right. On the basis that she is prepared to discuss it and bring something back at Third Reading, we will be happy to withdraw our amendment. I am grateful and I appreciate that.

However, I must express my disappointment with her comment around the legal definition. I was unusually —and somewhat, I would say, embarrassingly—graphic about what reinfibulation actually means. I know that the Government believe that it is covered in law, and I said that in my comments. We believed that we covered reinfibulation when we brought in the law in 2003, but the evidence is that it is not. If the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists say that it is not covered, we have to accept that there is a lack of clarity and there is some doubt. With the best will in the world, the noble Baroness saying to me that the Government believe that it is covered is not good enough. I ask her whether, on the same basis, she would be prepared to look at this and discuss this with us.

[Baroness Williams of Trafford]

Certainly.

[Baroness Smith of Basildon]

I am extremely grateful. On both those issues, therefore, we would be happy not to press our amendments on the basis of further discussion before Third Reading.

--- Later in debate ---

[Baroness Smith of Basildon]

It could be argued that that was a considerable clarification. I am grateful to the noble Baroness.

If the Minister’s Bill team does not believe that this addresses the problem, and we in your Lordships’ House all understand what the problem is, can we look at it again? The Minister has been very good and I greatly appreciate her co-operation. We can have discussions before Third Reading and full debates in the other place as well. This is the only opportunity, as we will not have another Bill on this in the short term. We have an opportunity here to get it right. We would welcome discussions with the noble Baroness, Lady Meacher, and the noble and learned Baroness, Lady Butler-Sloss, as well as the lawyers who have tried to find a way through on this without encroaching on the kinds of issues that the noble Lord, Lord Dobbs, rightly addressed, or on issues of free speech. We can find a way through and this is the only chance we have. If we are to wipe this out in the UK, we have to address it.

[Baroness Williams of Trafford]

Again, this has been a further excellent debate on the role of the criminal law in helping to put a stop to the practice of FGM in this country. I am grateful for the constructive approach that the noble Baroness, Lady Meacher, and others have adopted in both debates and in the discussions we have had outside and inside the Chamber.

As many noble Lords have said, we are aiming to get to the same end. It is slightly unfortunate that the amendment was tabled quite late and that there is a difference of opinion in terms of what the amendment seeks to achieve. My noble friend Lady Hamwee rightly pointed out, on the point about “other or others”, that the amendment does not seek to achieve what was sought in the original amendment, if that makes sense.

I also thank my noble friend Lady Tonge and the noble Baroness, Lady Meacher, for pointing out quite strongly that this is not a religious matter. There is nothing in any religious text that points to FGM being something that should be carried out on young girls. It is a specific cultural practice that exists in certain communities in the world and has found its way to this country. Legislation alone cannot eradicate a practice that is so deeply ingrained in the culture and traditions of those who practise it and have been doing so for centuries, but I agree that the law is a very important part of our response to the abhorrent practice of female genital mutilation, and it is right that we should change it where necessary.

We believe that the new offence that we have just debated of failing to protect a girl from risk of genital mutilation gets to the heart of the issue. The Government’s new offence focuses on those who allow this dreadful abuse to be perpetrated on their daughters rather than on those who may only encourage them to do so. That is not to suggest that encouraging female genital mutilation, or indeed any crime, is in any way acceptable.

I take the point made by the noble Baroness, Lady Hamwee, that such behaviour also constitutes an offence under the provisions of Part 2 of the Serious Crime Act 2007, which contains inchoate offences of: intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be committed; and encouraging or assisting offences believing one or more will be committed. As the noble Baroness observed, the revised wording of the proposed new offence follows closely the wording of the existing inchoate offences. That is both its strength and, dare I say, its weakness. As a result, it would not cover behaviour that is not already covered by the existing 2007 Act offences.

We are not persuaded that creating a specific offence of encouraging FGM is necessary or appropriate. The provisions in Part 2 of the Serious Crime Act 2007 apply to all criminal offences precisely so that it is not necessary to create specific encouraging or assisting offences for every crime. We agree that the behaviours now referred to in the noble Baroness’s revised amendment should be criminalised, but that is already the case. This amendment would not advance the criminal law in this area—I suspect this is where we are going to have a further conversation.

We believe that changing the culture and attitudes that allow female genital mutilation to persist will be better achieved through the awareness raising and community engagement that the Government have already embarked upon, rather than through the creation of another, arguably unnecessary, inchoate offence.

I wholeheartedly commend the aims of the noble Baroness, Lady Meacher, and others in tabling her amendment. As I have said, this House is united in its desire to eradicate FGM, even though we may differ on how best to achieve that end. I hope the noble Baroness will agree that the government amendments that we have just debated represent a substantial package of measures to strengthen the civil and criminal law to tackle FGM. I firmly believe that they offer a better way forward, and on that basis I ask the noble Baroness not to press her amendment.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I can be fairly brief in this debate because I think the Minister will have heard the very real and deep concerns across the House on this. It is not the first time that concerns have been raised about the use or misuse of RIPA. In this instance we are talking about the rights of journalists obtaining information from confidential sources to retain that confidentiality without which some information may never come to light. Previously, there had been anecdotal reports of local authorities using the legislation, which the noble Lord, Lord Black, mentioned, including identifying whether parents were living in a school catchment area. These issues raise serious concerns and have serious implications for individuals and for issues of collective privacy.

I will say something about the wider and serious implications of misuse of the legislation, but I want to address the specific role of journalists’ sources. In effect, we are discussing how new technology has brought with it new challenges for a free press and for personal privacy. Thirty years ago, if the police wanted access to journalists’ sources, they would have to go to a court to obtain their notes. There were no mobile phone records they could access at that time. Similarly, we would not have seen journalists illegally hacking into private phone calls, as shamefully came to light more recently.

Over the weekend, like other noble Lords, I read some of the obituaries of Ben Bradlee, and this amendment came to mind as I was reading about his editorship of the Washington Post. I also watched “All the President’s Men”, which is one of my favourite films. The main people portrayed in that film—Bob Woodward, Carl Bernstein and Ben Bradlee—uncovered the most serious corruption at the highest level of government. I might tag this amendment as “the Watergate amendment” because, although the jurisdictions are entirely different, the principle is the same. Would that story, with all the implications for democracy and secrecy, ever have been told if the Nixon Administration had been able to identify the Deep Throat source or access the records of the journalists he was speaking to? If Nixon had been able to obtain mobile phone records in secret, would we ever have found out what was going on? There will be parallels in the UK, although perhaps they will not be so dramatic. That underlines the value and importance of serious investigative journalism. I am not talking about sensationalist stories about people that most of us have never heard of, but about the best kind of journalism, which I hugely admire, acting in the public interest, not just on what is of public interest.

Noble Lords will recall that, when the Government brought in new powers into the DRIP Act by fast-track legislation to deal with serious and organised crime, including terrorism, we were highly critical of the way in which they acted and of the need to use the fast-track process. Part of our demands in supporting that legislation was that there should be a complete, thorough and independent view of RIPA. We have said for some time that it is becoming increasingly clear and obvious that RIPA is out of date and does not have the right kind of framework or the safeguards we need. Recent reports that RIPA has been used to access journalists’ sources reinforce that. It is right that the Interception Commissioner is looking at it, but in addition it is essential that we get a clear guarantee from the Minister today that this issue will be included as part of the comprehensive review of RIPA led by David Anderson, the independent reviewer of terrorism legislation, that was agreed by the Government during the debates on DRIPA.

For many, the world seems less safe today. We must be vigilant against organised and serious crime and terrorism. I believe that the public understand and support the need for measures that the Government must put in place to deal with these threats to our safety. In order to have and maintain that public support, it is vital that such powers are only ever used for the purpose for which they were intended. If those powers are abused, whether by government, police or local authorities, it undermines public confidence in the very measures needed for the most serious issues, and that puts us all at risk.

Of course, journalists are not above the law. Like anyone else, they need to be investigated if they have committed a serious crime, and I do not think anybody is arguing otherwise. As noble Lords have pointed out, there is already an independent judicial process with prior jurisdiction needed by which the police can apply for access to journalists’ information, but we have a long tradition of additional safeguards in law to recognise the role of a free press in a democracy and to protect whistleblowers, and this should not be compromised.

That is why we need the RIPA legislation to be examined in its entirety, including in context and in application, to ensure that the legal framework enables the police to access the data they need to solve serious crimes and to ensure that it does not have a chilling effect on free speech and the free press on which our democracy depends. The Government must ensure that David Anderson’s review is ambitious enough in scope to resolve these problems and to respond positively to the issue before us now. We seek an assurance from the Minister that this matter will be considered in the review. In addition, the Government must make it clear by whatever means are appropriate that such legislation must only ever be used for the purpose for which it was intended.

[Baroness Williams of Trafford]

My Lords, I am grateful to my noble friend for explaining the purpose of this amendment. I do not believe there is any difference between my noble friend and me, or indeed any of your Lordships who have contributed to this debate, on the key issue at stake here. We all agree that a free and fearless press is fundamental to a democratic society. A key element of journalism is the protection of sources, and I can assure your Lordships that the Government do not wish to do anything which would undermine the operation of the vibrant and independent press that operates in this country.

The amendment which my noble friend has moved seeks to require public authorities who acquire communications data under the Regulation of Investigatory Powers Act 2000 to seek the authorisation of a judge when the material requested is subject to legal privilege or relates to journalistic sources. However, this is unnecessary, given the strict regulation RIPA already contains and the additional safeguards we are already putting in place.

Communications data—the who, when and where but not the content of a communication—would reveal the telephone number a journalist or lawyer calls, but would not reveal any of what was said or written in a communication. Last month, the independent Interception of Communications Commissioner issued a statement in which he said that communications data,

“do not contain any details of what was said or written by the sender or the recipient of the communication. As such, the communications data retained by CSPs”—

communications service providers—

“do not contain any material that may be said to be of professional or legal privilege—the fact that a communication took place does not provide what was discussed or considered or advised”.

None the less, I recognise that this is a sensitive issue. It is personal information and RIPA already applies rigorous controls on its acquisition.

Communications data can only be obtained when their acquisition is necessary for a specified purpose, such as preventing and detecting crime, and then only when it is proportionate to do so. Anyone can complain to the Investigatory Powers Tribunal if they think the powers have been used unlawfully against them. The whole system is presided over, and reported on, by the Interception of Communications Commissioner, a senior judicial figure.

These controls apply to all requests for communications data, and I believe we have one of the most stringent systems to be found anywhere, with both strict internal controls and independent oversight. If any of your Lordships have doubts on this point, I would recommend reading the annual report of the Interception of Communications Commissioner. Sir Anthony May’s report, published in April of this year, includes a detailed account of how the system works and a full statistical breakdown of communications data requests.

However, we recognise the special considerations that apply to journalists, lawyers and a number of other professions which may involve access to sensitive information. We have announced plans to update the Acquisition and Disclosure of Communications Data Code of Practice. These changes will make clear that specific consideration must be given by the senior authorising officer to the level of possible intrusion in cases likely to involve the communications data of those engaged in certain professions who may have obligations of professional secrecy. These professions include journalism, as well as those of lawyers, doctors and Members of Parliament, and will also include those known to be close contacts of members of these professions. Any application for communications data that are known to be the data of members of these professions or their close contacts will have to state this clearly in the application. It will also require that relevant information is available to the authorising office when considering necessity and proportionality. This change will make clear in the statutory code what is already existing best practice.

We will publish the updated draft code of practice for public consultation as soon as possible, noting the acting Interception of Communications Commissioner’s request to expedite publication of the code. It is also worth pointing out that on 6 October the acting Interception of Communications Commissioner, Sir Paul Kennedy, announced that he had,

“launched an inquiry into the use of RIPA powers to determine whether the acquisition of communications data has been undertaken to identify journalistic sources”.

It would certainly be premature to take any legislative action in advance of knowing his findings.

The noble Baroness, Lady Smith of Basildon, asked whether David Anderson’s review of RIPA would cover this area. I am sure that David Anderson will wish to look at all aspects of RIPA interception and communications data, including this issue.

In the light of the protections already available, the very clear commitment to strengthen these through the code of practice and the ongoing inquiry by Sir Paul Kennedy, I invite my noble friend to withdraw his amendment.

Busking

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Monday 30th June 2014 Lords Chamber

[Baroness Williams of Trafford]

My Lords, it depends on the carol singers. If they were being disruptive they might well be.

[Baroness Smith of Basildon (Lab)]

My Lords, we have a number of candidates today for the busking task force, if perhaps not too many wanting to be buskers themselves. I think the noble Baroness missed one part of the Question asked by the noble Lord, Lord Clement-Jones, which was about the revised guidance that is awaited. The Anti-social Behaviour, Crime and Policing Act 2014 and the 1839 Act are also relied on. When will the new guidance be issued?

[Baroness Williams of Trafford]

My Lords, we have no plans to issue guidance in relation to how the two existing Acts are applied to buskers. However, we have undertaken, as the noble Baroness says, to include reference to busking in the guidance for the new anti-social behaviour powers for use by the police and others. This will be published shortly, in advance of the new powers commencing later in the year.

Immigration: Cedars Pre-departure Accommodation

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Wednesday 18th June 2014 Lords Chamber

[Baroness Williams of Trafford]

I thank the right noble Prelate for his question. I am sorry—I was so focused on the answer that I forgot the right reverend Prelate’s title. I think that there are lessons learnt from situations like that, and I know that refresher training is going on. I hope that, again, the specialist teams will provide that more consistent journey and that the lessons learnt will enable a better arrest and removal procedure in future.

[Baroness Smith of Basildon (Lab)]

My Lords, I welcome the noble Baroness to the Dispatch Box, and I hope that she enjoys the experience of sitting on the government Benches. Can I bring her back to the point that she was answering about children being separated from their families? When we had the Immigration Bill debates, the noble and learned Lord, Lord Wallace of Tankerness, informed the House that the Government would never separate a child from their family,

“solely for a compliance reason”.—[Official Report, 3/3/14; col. 1133.]

He said that it would be only in cases of safeguarding or welfare. That is not quite what the noble Baroness’s Answer said today. The Barnardo’s report says that families are split in one-sixth of all cases and that family splits,

“are often a plan or contingency in response to actual or potentially”,

non-compliant behaviour. That is not what the noble and learned Lord said in the debates on the Bill. Given that commitment, will any further action be taken in light of the Barnardo’s report?

[Baroness Williams of Trafford]

I thank the noble Baroness for her comments. The points that I made probably cover the points that she has made, so disruptive behaviour might include welfare issues as well. I hope that I have answered that satisfactorily.

Asylum Seekers: Uganda

Debate between Baroness Williams of Trafford and Baroness Smith of Basildon

Wednesday 18th June 2014 Lords Chamber

[Baroness Williams of Trafford]

My Lords, work is going on to dig down to discover the type of asylum claims that are being made, and we hope to have some information towards the end of the year. However, no one will have failed to notice the conference on ending sexual violence in conflict which took place here last week. We lead the way in many areas of human rights, and the legalisation of gay marriage in this country is certainly a step forward in terms of human rights and equality. I think that we can be leaders in this area.

[Baroness Smith of Basildon (Lab)]

My Lords, you do not need to feel much empathy to understand fully the fear and terror felt by gay men and women in Uganda, who risk life imprisonment or the death penalty just for being themselves. It is clear that there has been an increase in reports of violent attacks on gay people since the passing of the Anti-Homosexuality Act in 2014. Given the figures that the noble Baroness has just given us about the number of people who applied for asylum in this country and were either refused or accepted, what training and advice are being given to the immigration officials who have to make a judgment on these asylum claims?

[Baroness Williams of Trafford]

I thank the noble Baroness for that question—she raises an important point. The figures on asylum refusals and acceptances may not be based on the same year: in other words, the figures for 2013 do not necessarily relate to the applications for 2013. It is, as I say, a very important point. I have forgotten the second part of the noble Baroness’s question.

[Baroness Smith of Basildon]

I was asking about the training and advice given to the immigration officials who have to make a judgment on these asylum claims.

[Baroness Williams of Trafford]

There have been a few high-profile cases where completely inappropriate questions have been asked, and that has led to the training being refreshed for those who conduct such interviews. There is no need to provide sexually explicit material in an asylum application interview, and that is being made clear to applicants. We also work with partners such as Stonewall, the UK Lesbian and Gay Immigration Group and the UNHCR to develop the framework for the interview. The interview does not seek to prove that somebody is LGBT but rather to establish that the claim is valid.