Investigatory Powers Bill

Lord Ashton of Hyde Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Strasburger (LD)]

My Lords, it is a good idea to remind ourselves at times like these that we live in a democracy, and part of what defines a democracy is that our Government do not rule us and we are not their subjects; they govern on our behalf, and with our consent. So when our Government ask us to hand over prodigious quantities of our information that reveal in detail how we live our private lives, we must take great care.

We all have something to fear from these surveillance powers, for none of us can guarantee the benevolence of future Governments. The surveillance programmes run by our Government now go far beyond anything George Orwell imagined. The more personal data are dredged up and stored, the more the risk of misuse. Now that most of us carry smartphones, government agencies and the police have unprecedented access to location information about where we are 24 hours a day, seven days a week. They can also get their hands on all the information on our phones and computers: our contacts, our diaries, our emails, our web browsing, our social networking and everything we do on the internet. Their access to our lives has expanded massively in the past 10 years. In addition, there are myriad new databases that create digital dossiers about our lives which are held by private companies and public bodies, including our banks and our doctors, and the Government have access to all of them.

In short, far from going dark, as is often claimed, the police and security services are enjoying a golden age of surveillance. If government agencies were offered the choice of current capabilities or pre-internet capabilities, they would overwhelmingly prefer their surveillance abilities today. Listen to the words of Wolfgang Schmidt, who was a lieutenant-colonel in the Stasi in Berlin. When he first learned of the extent of surveillance currently carried out on their populations by the British and American Governments, Schmidt thought carefully and then said:

“You know, for us, this would have been a dream come true”.

Some proponents of bulk surveillance tell us, “You have nothing to fear, if you have nothing to hide”. It has been said that the original maker of that claim was Joseph Goebbels. Many people’s response is simply, “I don’t have anything to hide, but I don’t have anything I feel like showing you either, and the way I live my life is none of the state’s business”.

I fully support the amendments in this group. They seek to give effect to the Intelligence and Security Committee’s—

[Lord Ashton of Hyde (Con)]

My Lords, I am grateful to the noble Lord for giving way. We have a great number of amendments to deal with today. I respectfully ask the noble Lord to address the amendments.

[Lord Strasburger]

That is exactly what I was just doing.

I fully support the amendments in this group. They seek to give effect to the Intelligence and Security Committee’s demand that privacy protections should form the backbone of the legislation around which these surveillance powers are built as exceptions to the privacy norm.

Clause 2 was the Government’s answer to the ISC’s demand, but it is incomplete and insufficient and needs to be seriously beefed up. The amendments in this group give full effect to the ISC’s reasonable requirement that privacy should be the backbone of the Bill by, among other things, incorporating the 10 tests devised by the Royal United Services Institute review. I commend these amendments to the House.

Hate Crime

Lord Ashton of Hyde Excerpts

Wednesday 29th June 2016 Lords Chamber

[Baroness Deech (CB)]

My Lords, first, I express my appreciation to the Minister for his long-standing, staunch attacks on prejudice. He has been excellent in this regard. Secondly, I agree with the noble Lord, Lord Paddick, that one should take a broader view of this. It would be wrong, and we would be burying our heads in the sand, if we thought it was simply the EU and immigration unleashing racism in this country. Sadly, as many of us know, there have been a growing number of attacks for decades on Muslims, for which Tell MAMA can provide the statistics, and on Jews. The Community Security Trust too, of which I am a patron, has statistics. Unfortunately, they spike when there is an incident such as Gaza, but I do not want to go there now. We must ask ourselves: whence comes this racism, which has gone on for so very long? It is not a new phenomenon from last week, although obviously one appreciates the vigour of the condemnation from the noble Lord, Lord Rosser, now that it has happened and been brought to our attention in a wider way.

I simply ask the Minister not to forget the forthcoming report of the Chakrabarti inquiry looking into anti-Semitism in the Labour Party, and the as yet unpublished report from the noble Baroness, Lady Royall—on incidents in the Oxford University Labour Club, I am ashamed to say. All these incidents must be taken on board; it is not a narrow phenomenon of the EU and immigration. I do not know whether the Minister will agree with me, but I suggest that one possible theory is segregated education and that university authorities have not been cracking down in the way they should have on the continuation of some of the prejudices, which I fear have been nurtured in segregated education. I do not mean just in regular schooling but unfortunately after school as well.

[Lord Ashton of Hyde (Con)]

My Lords, Back-Bench questions are meant to be brief, so will the noble Baroness please ask a question?

[Lord Ahmad of Wimbledon]

My Lords, first, I thank the noble Baroness for the work that she does for the CST. Indeed, I commend the work of organisations such as the CST for the Jewish community and of Tell MAMA in the reporting that it provides within the Muslim community. Our faith communities are central and pivotal in helping us to find and determine some of the solutions for the kind of integration that we want to see.

The noble Baroness makes a point about schools. There are many good examples of schools that are operating according to a particular faith ethos. We need to take those examples and ensure that they are translated across the board. Let me assure the noble Baroness that the Government are not complacent. The challenges that we are facing in certain sectors of society showing fragmentation and isolation need to be tackled full on, and the Government are seeking to do that through various policies, including tackling some of the challenges of radicalisation, both from the far right and from those usurping and hijacking faith, through our counterextremism strategy.

Immigration Bill

Lord Ashton of Hyde Excerpts

Monday 21st March 2016 Lords Chamber

[Baroness Nicholson of Winterbourne]

In support of this amendment, I remind the House that Britain has been deficient in its treatment of our interpreters. I recall very well that, when the British forces withdrew from Basra in the mid-2000s and we closed, or partially closed, the British consulate—it is completely closed now—three men contacted me in despair and desperation. They were under huge threat; they had worked as interpreters and senior officials in the British consulate and their lives were undoubtedly, in their view, under threat. The evidence they gave me was compelling. I did everything I could; I had no locus, no money, no budget, but by some miracle I was able to persuade a near-neighbouring country to take two of them, temporarily, for what turned into a two-year period before the UNHCR managed to take them out into third countries that were completely safe. The third man, when I said how difficult this was—it was impossible, frankly—said, “Don’t worry about me. I think I’m safer than the other two. I can manage a couple more months before I think they’d find me”. Three weeks later, he was found tortured to death in a shallow grave. I believe that other nations are far more imaginative and constructive in the treatment of interpreters, who are right upfront, known to everybody and, for our services, put their lives at the gravest possible risk and all too frequently lose them. For this reason, I support the amendment.

[Lord Ashton of Hyde (Con)]

My Lords, there are some things that I think we can all agree on. I agree with the noble Lord, Lord Ashdown, on this. We all acknowledge that the locally employed people in Afghanistan and Iraq did tremendous work—the interpreters in particular, because they tended to be on the front line. They put their lives at risk and sometimes put their families at risk, and I completely agree that we owe them a duty to look after them and to be honourable towards them. Where I differ from the noble Lord, Lord Ashdown, in particular, is that we have not had a policy which is shameful; we have tried and we have succeeded in doing quite a lot to support those people.

We do distinguish, it is true, between those who were employed doing more and less dangerous things and we particularly support those who were on the front line in places such as Helmand in Afghanistan, but I assure noble Lords that we are aware of our legal and our moral responsibility to assist those who suffer as a result of conflict generally. Over and above that, we have a comprehensive approach to assisting those in need who are outside the UK, whom the UNHCR considers in need of resettlement and whom we accept under one of our programmes, particularly the Gateway programme and, more recently, as we heard in the previous debate, the Syrian vulnerable persons relocation programme.

We also accept that we have an additional responsibility to those who have worked for the UK Government in conflict zones. Perhaps it would help if I explain briefly what those arrangements are, because I think there has been some misunderstanding. The numbers that the noble Lord, Lord Ashdown, quoted are not correct. In Afghanistan, we engaged around 7,000 staff during our operations, around half of whom were English-speaking interpreters. There are two schemes designed to assist these former interpreters and other locally engaged staff who are in Afghanistan. First, there is the redundancy scheme, introduced in 2013 in response to the military draw-down. For those who qualify, there is a range of in-country packages of assistance, but also, for those who meet certain criteria, relocation to the UK along with their immediate dependants. Under this scheme, up to the end of February 2016 more than 600 Afghan civilians have been relocated to the UK. This is completely distinct from our refugee resettlement programmes.

The second scheme is the scheme that was mentioned by the noble Lord, Lord Ashdown, which is the intimidation policy—personally, I think it should have been the anti-intimidation policy. This is designed to provide advice and support to any serving or former staff member whose safety has been threatened. So that applies to anyone, whether they resigned long before the draw-down or not—anyone can apply under this policy. That is regardless of the dates or duration of their employment or the role that they held working for us in Afghanistan. Anyone who was employed by the Government, or on associated programmes, can apply. Investigations take place and mitigation measures can be put in place. These can range from providing specific security advice to assistance to relocate the staff member within the country. In the most extreme cases, it could mean relocation to the UK. We have supported around 300 staff members through this intimidation policy, which is regularly reviewed. In the case of Iraq, the numbers are rather larger.

[Lord Ashdown of Norton-sub-Hamdon]

I said that, according to the figures I have, under the intimidation scheme the number of Afghan interpreters who have been relocated to the United Kingdom since the election of this Government is nil. Am I right?

[Lord Ashton of Hyde]

The noble Lord is right on that. The point is that 600 Afghan locally employed staff have been relocated to the UK and many others have been helped within the country. The important thing about the intimidation scheme is that, if the circumstances merit it, there is nothing to prevent those people being relocated to the UK.

The noble Baroness, Lady Nicholson, talked about Iraq. The Government have assisted staff through the Iraq locally engaged staff assistance scheme, which has been running since 2007. Six hundred places were made available for staff and dependants who met the criteria and have enabled nearly all that number to be resettled in the UK. The second arrangement in Iraq was also for locally employed staff who were still serving on 8 August 2007. They were granted entry clearance which, on arrival, if they met the criteria, conferred indefinite leave to enter the UK. This had to be referred by employing departments. Since 2007, under this arrangement, a total of 1,323 Iraqi civilians have been relocated to the UK up to the end of February this year.

These programmes are in addition to the UK’s obligation under the refugee convention to consider all asylum claims made in the UK. But we have no legal obligation to extend the asylum process to those outside the UK. As the noble Lord, Lord Pannick, mentioned in the last debate, government policy is very clear that we consider only asylum claims that are lodged in the UK. We do not grant visas to enable asylum seekers to come to the UK. To accept that proposal would attract large numbers of claims requiring careful consideration and place very heavy burdens on UK posts abroad. Importantly, it would also draw resources away from those applying in the UK, and thus undermine our ability to process those claims in accordance with our legal obligations under the refugee convention.

The operation of the two global resettlement schemes already provides a route to the UK for refugees recognised by UNHCR. The existing ex gratia schemes for locally engaged staff in Iraq and Afghanistan have a different focus and provide a route to the UK to reward those who have made particularly significant contributions to the success of UK missions. For all locally engaged staff we have the intimidation policy that provides cover for those who may need support in the face of a local threat, which in extreme cases could lead to relocation to the UK, as I have said. We recognise the considerable contributions made by locally engaged staff and owe a debt of gratitude to them and an ongoing duty of care. That duty and that debt are already being discharged and those in need have been allowed to come to the UK.

In answer to the noble Lord, Lord Dubs, I cannot accept the amendment. However, I can go some way towards what he was asking for as his second alternative. If he can give me examples of where the existing schemes are not working, I am happy to take them to the MoD and explain why they are not working. However, I submit that the schemes which are operating do fulfil our moral and legal obligations. On that basis, I would be grateful if the noble Lord would withdraw the amendment.

[Lord Dubs]

My Lords, what the Minister has said is quite complicated. There are a number of different schemes and it is not easy to sort out all the implications of what he has said. I will pick him up on one point, though. The Minister said that people cannot travel here to claim asylum. I remember that the British Government brought in some 4,000 Bosnians from the Serb camps. These people were allowed into the country—

[Lord Ashton of Hyde]

They had to travel here to claim asylum. What they cannot do is claim asylum in foreign countries.

[Lord Dubs]

They had to be given visas or something with which to come here. The amendment says that they have to satisfy the UNHCR that they meet the 1951 convention criteria and they would then be eligible to apply for a visa for the purpose of claiming asylum here. That meets what the Minister says—yes?

[Lord Ashton of Hyde]

One of the reasons why we cannot accept the amendment—the red line, if you like—is that we do not give people visas to come to this country to claim asylum.

[Lord Dubs]

The hour is late but, as I remember it, the Bosnians were allowed to come here in order to be able to claim asylum. I do not think they were given asylum in Serbia when they left. But be that as it may.

If I understand the Minister correctly, he has said that, if we can produce evidence of individuals who have slipped through the net and who would be entitled to come here, under what he has said, if we can find them and give the Government the names, then the Minister will pass them on to the MoD to be dealt with under the scheme. That goes some way to meeting my concerns. I am worried that there are people who have simply slipped through the net. For example, I am told there are several in Calais. They would seem to meet the criteria that the Minister set. There may be others elsewhere. If the Minister is giving that clear assurance, I am prepared to withdraw my amendment.

[Lord Ashton of Hyde]

I can certainly assure the noble Lord that, if he can produce examples of people who would appear to have slipped through the net, I would be happy to take them to the MoD. Obviously, I cannot give a guarantee that they definitely have slipped through the net, but the MoD will certainly take a look.

[Lord Dubs]

I appreciate that. I know of at least two who have been identified in Calais by members of an NGO. If I let the Minister have their names, will he be prepared to act as he said and let the MoD have them? I understand he cannot give a complete assurance about what the MoD will do. We have some names and we can produce some more.

On the basis of the Minister’s assurances, I am prepared to withdraw the amendment.

--- Later in debate ---

[Lord Green of Deddington]

My Lords, the amendment simply deletes a key requirement in a spousal visa. Noble Lords will remember that the Migration Advisory Committee was invited to make recommendations on what should be a threshold. I take the point that the noble Baroness would not like a threshold at all, but the recommendation was £18,600 as the level at which no income-based benefits were paid. The level at which the overall costs to the Exchequer would be zero was £40,000. That gives an indication of the cost to the taxpayer of abolishing this income requirement. It is surely not right that the taxpayer should be obliged to subsidise at such a considerable level the arrangements of other people. This amendment would drive a coach and horses through that requirement, and I hope that it will be opposed.

[Lord Ashton of Hyde]

My Lords, I thank all noble Lords who have spoken on this amendment and I appreciate the knowledge and the strength of feeling of the noble Lord, Lord Teverson. He has put this as a matter of fundamental principle. I respect that, but I am afraid that we disagree on it, and I shall try to explain why the Government feel like that.

The amendment concerns the family Immigration Rules for British citizens which also apply to those who are settled in the UK and those here with refugee leave or humanitarian protection to sponsor a spouse or partner to come and remain in the UK. Of course, we welcome those who wish to make a life in the UK with their family, to work hard and to make a contribution. However, we believe that family life must not be established here at the taxpayer’s expense and that family migrants must be in a position to integrate into British society. That is fair to the applicants and to the public and it is the basis on which the family Immigration Rules were reformed in July 2014 by the coalition Government.

The amendment would reverse those reforms by removing all requirements except the requirement that the marriage or civil partnership is not a sham. So the effect of the amendment would be to remove the minimum income threshold and accommodation requirements; to remove the requirement for basic English language speaking and listening skills; to remove the suitability requirements which prevent a foreign criminal from qualifying for leave; to remove the minimum age requirement; to remove the requirements which prevent the formation of polygamous households and prevent those with a prohibited degree of relationship from qualifying; and it would run counter to Parliament’s view of what the public interest requires in immigration cases engaging the qualified right to respect for family life under Article 8 of the European Convention on Human Rights as set out in the Immigration Act 2014. This would undermine our system for family migration. Understanding basic English and being financially independent, for example, help to ensure that the migrant spouse or partner can integrate and play a full part in British society.

Immigration Bill

Lord Ashton of Hyde Excerpts

Wednesday 9th March 2016 Lords Chamber

[Lord Deben]

I thank my noble friend for giving way. I still have a problem, and that is that we are making these major changes, but the Bill is still called just the “Immigration Bill”. Given that the Bill now covers things that are at a much further remove from immigrants, the Government really ought to think seriously about its Title. It really is something very different from that.

[Lord Ashton of Hyde (Con)]

My Lords, may I just remind the House that the Companion is very clear that, on Report,

“Only the mover of an amendment … speaks after the minister … except for short questions of elucidation”?

[Lord Deben]

If I may say so, I was asking for direct elucidation. I wonder whether the Minister would answer my question.

Immigration Bill

Lord Ashton of Hyde Excerpts

Tuesday 9th February 2016 Grand Committee

[Lord Green of Deddington]

My Lords, eventually I will be allowed to sit down. There are some very serious points here. There is a large number of destitute children in Europe. The issue is how we suggest our Government respond to that. Suppose we take 3,000 children in the UK as part as what I think has been described as our share. So 30,000 or 40,000 children are taken into care in Europe. Do we seriously think that none of the families who are refugees from Syria, Iraq or Afghanistan will deduce from that that the best way forward, particularly as the borders close and the Turks get more difficult and so on, is to send a child ahead? I think that they might well. I cannot be definitive about this—we need the evidence and we need to think about it very carefully. But there has to be a risk that if you say, “Right, we’ll have the kids”, other family members will follow and we simply make the situation continue and possibly even get worse. Whatever we do, there is a dreadful situation. Let us be really careful that we do not make it any worse.

[Lord Ashton of Hyde (Con)]

My Lords, we could probably spend four hours going backwards and forwards on this obviously important subject, but it might be useful, given that we have a number of things to get through, to hear the views of the Front Benches.

[Lord Rosser (Lab)]

I do not intend to speak at any great length. We support the amendment moved by my noble friend Lord Dubs. Indeed, it is quite clear that not all Government MPs are opposed to taking unaccompanied children already in Europe, not least some of those who have been to the entry points in Greece and other parts of Europe and seen the situation for themselves. We also welcome the financial support the Government are providing to those in camps in Syria and neighbouring countries.

I think we are all agreed—everyone who has spoken is—that we should be taking some unaccompanied children; there might be an issue as to where we take them from. It is not clear, as has already been said, what the Government’s intentions are in this respect, certainly in relation to numbers. The Government, obviously, up to now are sticking to their line that they would be from within Syria and neighbouring countries, but I think I am right in saying that we have not been told how many. I suppose one answer to the question posed by the noble Lord, Lord Green, about the extent to which our taking 3,000 unaccompanied children who are already in Europe might act as an incentive for parents to send their children that way might be that it rather depends how many children the Government intend to take from Syria and neighbouring countries. Clearly if they intend to take quite considerable numbers, that might still be seen as the most favourable way of seeking admission, provided the criteria were met, into the United Kingdom. That, no doubt, is something that the Minister will comment on when he replies, perhaps giving an indication of how many unaccompanied children the Government expect to take from Syria and neighbouring countries. I ask again how the Government actually reached their initial figure of taking 20,000 people over five years. I am still not clear how they reached that. It would be interesting if the Minister could comment on that as well as on the number of unaccompanied children the Government expect to be taking under the arrangements they have announced.

The reality is, as has already been said, that we have apparently considerable numbers of unaccompanied children already in Europe. I am certainly not confining my comments to Calais and Dunkirk. Indeed, the amendment refers to children,

“who are in European countries”.

It is not related simply to what may be happening in Calais and Dunkirk. My understanding, unless I have got the figure wrong, is that Europol recently said that more than 10,000 unaccompanied children registered after arriving in Europe over the past 18 months to two years have disappeared. It said that youngsters arriving in Europe alone are particularly vulnerable to exploitation and abuse. That, no doubt, is something on which the Minister will comment. Why are the Government refusing to take some unaccompanied children from within Europe—a specific figure is mentioned in the amendment? Where children have been identified as being unaccompanied, on their own and having come from a country ravaged by civil war, where hundreds of thousands have died and many have been brutally murdered, is it really still the Government’s policy to wash our hands of them as far as relocation to the United Kingdom is concerned because they landed cold, wet, scared and on their own on, for example, a Greek island rather than being in or near Syria? Up to now, that appears basically to be the Government’s stance.

--- Later in debate ---

[Lord Green of Deddington]

My Lords, I support Amendment 240. The sheer scale of immigration is a major public concern. I agree with the noble Lord, Lord Rosser, that we need to get a grip, and part of that is a matter of reorganisation, which I think is at hand. Another part is to have a legal framework, and we are doing that today. But none of that is any use at all unless it is enforced. I am increasingly of the view that the lack of resources is becoming a serious constraint; it really does need to be looked at, and the Government should explain how they think they can achieve their objectives on the resources that they have so allocated.

Lastly, I offer qualified support to Amendment 241A. Illegal immigration is a very important subject that is often ducked. We have looked at this, and it is very difficult to get beyond merely ballpark estimates, but it is worth having a shot at and I think that the Government should do it—not annually, because there is just not enough information for that, but it should be done and it would be worth doing.

[Lord Ashton of Hyde]

My Lords, I am grateful to all noble Lords who have spoken in this debate. I shall be brief if I can, because—if I can make a pitch wearing my Whip’s hat—we have six more groups of amendments to debate.

It may help if I speak first to government Amendment 239C, which I hope will be uncontroversial. I thank the noble Lord, Lord Wallace, for his support on this amendment. This makes a minor change to extend the maritime powers in the Bill to Northern Ireland port police by altering the definition of “Northern Ireland constable” in new Section 28Q of the Immigration and Asylum Act 1999, as inserted by paragraph 7 of Schedule 11 to the Bill.

The two harbour police forces in Northern Ireland, the Belfast Harbour Police and Larne Harbour Police, were not initially included in the Bill as the categories of officers listed are modelled on the maritime powers in the Modern Slavery Act 2015. However, we have listened to points made by Northern Irish Members in another place and agree that a consistent approach should be taken across the UK with the enforcement of immigration control. Therefore, this amendment aligns the position of port police forces in Northern Ireland with those port police forces elsewhere in the UK which are already included in the Bill. It will be a matter for individual port police forces to consider whether they wish to use the powers or rely on the relevant territorial force—for example, the Police Service of Northern Ireland.

Amendment 239BA would extend our penalties for misdirected passengers to general aviation sites, private landing strips and helipads. It is the Government’s intention to operate the misdirected flights penalties only at sites where there is a designated control zone to which arriving passengers must be directed for border checks by the Border Force. I shall come on to the points that the noble Lord, Lord Wallace, made in a moment. Given the large number of general aviation sites, landing strips and helipads in the UK that do not have a permanent Border Force presence, this amendment is unnecessary and unworkable. It would place a disproportionate burden on those sites. Border Force officers attend such sites only when they need to check specific arrivals.

On what the noble Lord, Lord Wallace, was saying about the potential loophole, I should quickly mention how border authorities handle general aviation flights. The Border Force and police take an intelligence-led approach to general aviation, which strikes a balance between securing our borders and best managing resources. Flights are risk-assessed in advance and, when appropriate, border authorities will physically examine crew, passengers and goods. There are in excess of 3,000 private air fields nationwide, and it would be unfeasible for the Border Force and police routinely to meet all arriving flights. It was noted by the independent inspection report published in January that the Border Force has made a number of significant recent interventions in the general aviation environment. I confirm that all those travelling via general aviation are subject to the same immigration and visa requirements as those using scheduled services. The noble Lord asks whether we are doing something about it. The Counter-Terrorism and Security Act 2015 includes enabling provisions for a stronger legislative framework for advanced notification for general aviation. Regulations will bring greater clarity to what is needed from the sector but also provide for appropriate sanctions to enforce compliance by the small minority that do not provide advanced notification under the current arrangements.

Amendment 240 seeks to include provision for a statutory review of border security in the United Kingdom. The Border Force operates a control regime which is predicated on checking 100% of scheduled arrivals. Our collection of advanced passenger information from carriers enables us to identify known subjects of interest to law enforcement agencies before they travel, allowing us to intervene and direct airlines and ferry companies not to carry certain passengers so that they never even set foot in the UK. The Border Force adopts an intelligence-led approach in combination with its partners to identify and intercept contraband goods which have the potential to cause harm to the public. Our visa regime provides another vital way by which we are able to manage the threats from crime, terrorism, illegal migration, and espionage.

The Independent Chief Inspector of Borders and Immigration regularly reviews Home Office immigration functions, including our management of border security. Most significantly, following the independent chief inspector’s critical review of the then UK Border Agency, Border Force was established as a separate law enforcement body. The Home Office also works with a range of other partners, including port operators, carriers and road hauliers. This allows us to review processes and security interventions to make border security work efficiently, and to work together to intercept threats while keeping the flow of law-abiding passengers and freight moving as smoothly as possible. I assure the Committee that the Government keep the UK’s border security arrangements under constant review and these arrangements are subject to rigorous scrutiny by the Independent Chief Inspector of Borders and Immigration—as I have said—and by the Home Affairs Select Committee. The reports and publications of both of these are laid before Parliament. On this basis, we do not consider there is any need to introduce a further statutory review process.

[Lord Rosser]

Are the Government satisfied with our border security arrangements at the moment?

--- Later in debate ---

[Lord Ashton of Hyde]

We are always looking to improve them. We agree that security is paramount. If there are areas that the Chief Inspector of Borders and Immigration brings to the attention of the Government, they will certainly consider them.

Amendment 241A in the name of the noble Lord, Lord Teverson, requires the Secretary of State to undertake or commission an annual survey on illegal migrants residing within the United Kingdom. I completely understand his reasoning and agree with it in theory. He asked whether we agree with the list. I think it is a good start but there are problems. We are committed to tackling illegal immigration. The primary aim of this Bill is to introduce measures to make it harder for illegal migrants to live and work in the UK. However, we do not believe that a Home Office survey of illegal immigration in immigration is achievable, nor that it would deliver the information set out in the amendment. Given the clandestine nature of illegal migration we do not see a practical way to sample a representative population of illegal immigrants to meet the aims set out in the amendment.

As the noble Lord said, there have been research exercises in the past to estimate the illegal population, but these, as he said, have been very speculative with very wide margins of error. They have looked only to estimate the overall level of illegal migration and are not surveys of illegal migrants, which is a wholly different exercise. Very few government surveys are mandated in this way. However, I reassure the Committee that the Government are taking action to improve our understanding of the scale of illegal immigration in the UK. From 8 April 2015 the Home Office introduced exit checks to provide more comprehensive information on travel movements across the UK border since that date. These will help us take more effective action against those who remain here illegally. In the longer term the data will also provide valuable information on the immigration routes and visas that are most subject to abuse, enabling the Government to make targeted changes to tackle this.

I am afraid that the noble Lord will be disappointed that I am unable to give the Government’s support for this amendment, but I hope that the thrust of the new legislation provides reassurance that the Government take the issue of illegal immigration seriously and are taking active steps to counter the problem. In light of the points I have made on these matters, I invite the noble Lords not to press their amendments.

[Lord Marlesford]

On the amendment tabled by the noble Lord, Lord Wallace, how can the Home Office argue that there are no resources? It is absurd. It may not be mega-bucks to use private planes, but it is quite expensive. To charge a cost for someone to be at the landing place to check the person is absurd, given the present terrorist situation and the fact that all the indicators say that the terror alert is very high. Look at it another way. We do not hesitate to have police cars, probably with two police people in them, checking that people are not going 40 miles an hour in a 30 mile-an-hour limit, which they should not be doing, but the resource is there. They are the real resources. It is inexcusable not to be following up what the noble Lord, Lord Wallace of Saltaire, said. The Minister says in triumph, “We have now introduced exit checks”, but it is a real disgrace that the Government had not done so long ago, certainly at the time of 9/11.

[Lord Ashton of Hyde]

On that last point, I do not know that one can blame just this Government, but I accept the noble Lord’s point on exit checks. They are a useful procedure to have. I believe that we had them in the past. We reintroduced them. Nobody is saying, and I certainly did not say, that the reason we do not have permanent Border Force personnel at every single general aviation airfield is simply a matter of cost. The Border Force has 7,700 members, I think. If we had someone permanently at every single general aviation airfield, we could use the whole of the Border Force on that. It is a question of value for money. We are not sitting there doing nothing. As I tried to explain, under the Counter-Terrorism and Security Act, we are extending the powers so that advance passenger information can be enforced. It is an intelligence-led procedure. We do not have Border Force people sitting for weeks on end with no passengers arriving from abroad. We try to do it in a more proportionate and value-for-money way.

[Lord Marlesford]

I shall ask the Minister a very straightforward question. How is it that, when I was pressing for exit checks, I was constantly told, “We do it by intelligence? We do not need to do it regularly”, but it is now being done regularly? Does the Home Office not understand that we are in a much more dangerous position than we were? Will it wake up please?

[Lord Ashton of Hyde]

The Home Office understands that because it takes advice from the law enforcement agencies. Of course, we also take advice from my noble friend. It is not true to say that the Home Office does not recognise the security situation. In fact, the Home Secretary regards it as her highest priority.

[Lord Wallace of Saltaire]

My Lords, the noble Lord must clearly be too young to remember who abolished exit controls. It was indeed Margaret Thatcher, when Prime Minister, as an economy measure. She thought that they were unnecessary and cut the number of people employed by the border service. That was some time ago.

[Lord Green of Deddington]

Perhaps I may correct the noble Lord. Exit checks to Europe were abolished by the Conservative Government in 1994 and exit checks to the rest of the world were abolished by the Labour Government in 1998. Both decisions were wrong.

[Lord Ashton of Hyde]

They were amended by this Government.

[Lord Wallace of Saltaire]

My Lords, I tabled my amendment simply to make sure that the Government and, in particular, the Home Office took this point on board. I am very happy to talk further. We are looking for a response from the Government on this. Of course we recognise that 3,000 private airports cannot be entirely covered. One has to use intelligence. As the noble Lord replied, I was thinking of the days when as a schoolboy I used to dip sheep on a farm. The policemen always turned up to check that you were dipping the sheep properly. In those days, there were ways in which they made sure that the law was enforced in all sorts of places around the country. Clearly, we need a degree of intelligence.

The use of private planes and private helicopters is clearly growing. This is not a static situation. The Government’s response therefore cannot be entirely static. They have to be much more aware of what is going on and of the potential for abuse and for people who are engaged in illegal activities, possibly even terrorism, to use this route as well as many legitimate people.

The noble Lord did not mention the Channel Islands loophole. I have asked a number of Written Questions on it. I am struck that the liaison between the British Border Force and the authorities in the Channel Islands may not necessarily be as tight and mutual as we would wish. If one looks for areas where our border controls may not be entirely secure, the Irish land border and the Channel Islands maritime border are the most vulnerable. I will be interested to hear what the Government have to say on that in particular.

Above all, we need to be sure that the Government do not give the impression that there is one law for the rich and another for the rest of us. There are a number of other areas where the Government are edging towards a situation where unkind people, or Private Eye, could indeed suggest that there is now one law for the rich and another for the rest of us. I look forward to further discussions off the Floor with the Government. I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, when I was in government I asked on a number of occasions how many British citizens hold dual nationality. We all know that we run into a number of problems with dual nationality, particularly when a British citizen of origin of another country is taken into custody in the country of origin. Dual nationality is a very cloudy concept. I should simply like to add that it would be very helpful if the Government would take this back and possibly even provide a Green Paper on the whole issue of dual nationality within Britain. We all have friends in that situation. I have a nephew and niece who hold British and Irish passports and a nephew who holds British and South African passports. My niece, who works for a development charity, sometimes finds it extremely useful not to be a British citizen when she is in a rather difficult country.

There are some major issues here. A substantial minority have British and Pakistani citizenship, and another substantial minority have British and Bangladeshi citizenship. These are delicate issues. They raise large public policy questions and some security questions. It would be useful if the Government would commit to looking at this matter further and reporting back to Parliament.

[Lord Ashton of Hyde]

My Lords, I am grateful to all noble Lords who have spoken. Perhaps I should first declare an interest in that one of my daughters has dual nationality. Indeed, she has two passports.

I start by saying that the noble Lord, Lord Green, very kindly asked me to ask my officials rather than answer his question. I certainly will ask my officials. Equally, I will take on board the comments of the noble Lord, Lord Wallace, and take them back to the department.

My noble friend Lord Marlesford has form on this question. I am conscious that I am but the latest in a long line of Ministers—“distinguished Ministers” is being whispered to me—including my noble friends Lady Anelay, Lord Taylor of Holbeach and of course Lord Bates, who, within a very short space of time, have answered the question put by my noble friend Lord Marlesford during debates on immigration Bills, counterterrorism Bills and in Questions in the House. As I said, I am just the latest in a long line and so, in hope rather than in expectation, here goes.

My noble friend will be aware from his long-standing interest in this matter that Her Majesty’s Passport Office requires holders of passports issued by another country to provide details of that passport at the time of application. He made the point that he understood that; the question was whether it would be on an electronic, searchable register. The reason for asking for other passports is to minimise the ability of the British passport applicant to obtain a British passport in a name and identity which is not consistent with an overseas passport. The holding of dual or second nationality is not in itself relevant to the issuing of a British passport. Instead, HMPO collects the information on any other passport held in order to help confirm the identity of the applicant. It provides an additional element of identity verification.

Therefore, requiring a British passport holder who holds or held dual nationality to supply information outside the British passport application process would be an unnecessary and additional function for HMPO. Failure to notify any acquisition or loss of citizenship would require an enforcement and penalty structure. This would in our view be disproportionate and likely result in legal challenges as the failure to notify would have no impact on the validity of the British passport. As I said, it is already a mandatory requirement for all applicants to submit any other passports that they hold, British or otherwise, when applying for a new passport. However, I can tell my noble friend that the Home Office continues to explore ways in which information held within the department is shared effectively to help to prevent and detect crime. My noble friend will be pleased to learn that HMPO is looking at enhancing how information at the point of application is collected and shared across Home Office agencies by making better use of technology. This would include information collected on dual national passport holders at the point of application. Information is held by the Home Office on dual nationals who apply for British citizenship and who subsequently apply for a British passport. Such information is necessary to progress the application for citizenship or when making jointly an application for citizenship and a passport. Outside of either process, the need for information on dual nationality would be unnecessary and would not serve any useful purpose.

Finally, I recognise that my noble friend has concerns about the security implications if his suggestions are not accepted, and I agree that the security of the public is of the highest importance. That is why we ask the views of the law enforcement agencies each time this matter is raised. Their response remains consistent—that the establishment of a dual national database is not considered operationally essential. Despite that, I fear that my noble friend will not be convinced by this response, but I hope that he will acknowledge that information on dual nationality is already collected and maintained. We do not see additional security benefit in extending the data collection process. I respectfully request that the amendment be withdrawn.

[Lord Swinfen]

Does my noble friend consider that, when someone has more than one passport, the other passport should be noted in the British passport so that officials know that there is more than one nationality involved and other passports may also be held?

[Lord Ashton of Hyde]

As I said, we are trying to make that information available by using electronic means, and we are looking at that at the moment. We have not received advice that that is necessary. Information is always useful to have, but it is not considered an operational necessity at the moment.

[Lord Green of Deddington]

I think the important word is “essential”—operationally essential. If you ask that question, you will get the answer that you would hope for. But would it be operationally valuable? Were they asked that question and, if so, what was the answer?

[Lord Ashton of Hyde]

I shall turn the question round. If you ask any law enforcement agency if it would like some information, it will always say yes. The question is whether it is nice to have something or it is an essential tool, and that is the advice that we have received at the moment.

[Lord Marlesford]

My Lords, I am afraid that my noble friend has reinforced my argument, by indicating that the information is already being collected and it is only a matter of having it on the same record as the passport record. It would obviously be useful to know, once you know that somebody has another passport, when they are entering or leaving the UK on the other passport, which will often be screened. If it showed that that person had a British passport as well, that might well be a clue and be useful. But the fact is that they are collecting information and then not using it; that is my complaint. I shall withdraw the amendment, but I will come back to it on Report, when we can have a proper debate.

[Lord Ashton of Hyde]

I must correct the noble Lord on one thing. The Passport Office collects information for foreign passport holders when they apply for a British passport. What it does not do is to maintain it consistently through life; for example, it does not keep up-to-date addresses, and things like that. What I was saying was that, for the information that it does collect, on application and renewal only, it will attempt to make available throughout the other law enforcement agencies. But it does not collect information across dual nationalities, as the noble Lord would want, except when someone applies or renews a British passport.

[Lord Marlesford]

I beg leave to withdraw the amendment.

Immigration Bill

Lord Ashton of Hyde Excerpts

Monday 1st February 2016 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, the amendments in this group are all in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, and concern the regulations set out in Schedule 4 to the Bill about bank accounts and the processes around freezing orders. These amendments generally seek to improve this section of the Bill by bringing greater clarity to the process. Amendment 180 provides for the court to be able to award compensation, which seems reasonable to me. If a court has allowed an appeal, it has presumably determined that it was wrong to freeze the account in the first place. Taking into account how long the order was in force and the inconvenience to the person or body and being able to award an amount of compensation do not seem unreasonable, taking all relevant factors into account. If the noble Lord, Lord Ashton of Hyde, thinks that this is adequately covered in Section 40E(3)(b), it would be useful if he could say so when he responds to the debate.

I am not sure whether Amendment 182 has the desired effect when looking at Section 40C and the proposed amendment. Amendment 183 would increase the number of regulations that are subject to the affirmative resolution procedure, which is very welcome. I know the noble Lord, Lord Ashton, said recently that I never agree to negative procedures. That is just not the case. However, all sides of the House have voiced concern about the Bill, and the more regulations that are covered by the affirmative procedure, the better.

This section is on access to services. Clause 13 is about tenancies and landlords, who can potentially go to prison for up to five years and be fined. I could not find anything about directors of banks if bank accounts are opened improperly. What happens to bank directors? They seem to be able to get away scot free. It would be useful if the noble Lord will respond on what happens about bank accounts.

[Lord Ashton of Hyde (Con)]

Amendment 178 would require, as opposed to permit, provision for reasonable living and legal expenses to be included in a freezing order. Amendments 179 and 180 would permit an appeal to be made against an order that is no longer in force and allow courts to order compensation. Amendments 181 and 182 would mean freezing orders could be applied for or maintained only if that is overwhelmingly in the public interest. Amendment 183 would make nearly all the regulation-making powers in these provisions subject to the affirmative resolution procedure. I take back what I said about the noble Lord, Lord Kennedy: I am sure he addresses the affirmative and negative procedures with the due consideration they deserve, and he is eminently flexible.

The noble Lord will know that the Bank of England Bill, which is currently before the other place, puts in a new regime which gives specific responsibility to individual senior managers for various duties. Therefore, individual bank directors will not be able to escape as they have in the past.

[Lord Kennedy of Southwark]

May I press the Minister on this serious point? There are serious provisions for landlords who commit offences, but there is nothing about bank directors. The Minister should reflect on that and come back with regulations. I know he is busy on another Bill, but this is an important matter.

[Lord Ashton of Hyde]

I absolutely agree that it is an important matter. I do not necessarily think that this is the place for it, given that this is an immigration Bill, but I will certainly reflect, along with my noble friend the Minister, on what he said. But it may not be something for this Bill.

Significant safeguards against error are built into the bank account provisions. We already share with banks details of illegal migrants who are liable to removal or deportation and have no open application or appeal. These data are subject to rigorous checks. There will be a further check under the new provisions before the bank takes action to close an account or the Home Office applies to freeze it—in which case, of course, a court is also involved.

As the code of practice will set out, applications for freezing orders will be reserved for a small number of cases with significant funds. The person’s circumstances, including the risk they pose to the public and their immigration history, will be carefully considered. I agree that it must be in the public interest to freeze an account, but not that the legislation needs to say so. We want people with no right to be here to leave the UK. Applying for and monitoring orders will involve a cost to the Government and the courts. They will only be used where we believe it to be necessary. This will be where a person’s history and behaviour make it both difficult and very desirable to remove them. They will also have to have enough money to make freezing it until their departure a significant incentive to leave.

Freezing orders will not cause destitution. The court has a broad discretion to make exceptions, with reasonable living and legal expenses explicitly included. In some cases another source of funds may mean that such provision is not required. Standard provision for such expenses will normally be included when an order is first applied for. Affected persons can apply to the court to have an order varied or discharged, and the Home Office can support an application where it agrees with it. This would allow orders to be swiftly varied on the papers without a hearing.

Courts can consider complicated circumstances, and there is discretion as to which accounts are included. Further detail will be set out in rules of court and guidance. It is appropriate to provide for an appeal to a higher court, but it would be wasteful where an order is not in force. Nor do we believe that it is necessary to make provision for compensation. The risk of an order being erroneously imposed is extremely small. In addition to the checks outlined above, the court will have to be convinced that the order is appropriate and proportionate. I have already explained how it may be swiftly varied if necessary.

I turn to Amendment 183. Key regulation-making powers in these provisions are already subject to the affirmative resolution procedure. Of those subject to the negative procedure, all but one concern matters of administrative detail. The Government continue to work with representatives of the financial services sector to ensure that these provisions are effective without imposing an excessive burden on business. The remaining regulation-making power is to bring into force the code of practice on when a freezing order will be applied for. It is right that the code is laid before Parliament, so that the Government’s intentions for the orders are clear, but ultimately it will be the court that decides if a freezing order is made. The negative procedure is therefore appropriate. The Delegated Powers Committee has made no criticism of the powers in this schedule and has recommended no changes.

The noble Lord, Lord Kennedy, asked about new Section 40E(3), which I confirm would allow a court to order compensation on appeal. However, there is no route to compensation if an order is lifted before it is appealed. The noble Baroness, Lady Hamwee, asked how an account closure can be challenged if the Home Office data were wrong. Individuals whose accounts are subject to closure will be informed by the bank of the reason, provided it is lawful to do so. If, despite all the checks, a person still considers that they are lawfully present, and that incorrect information has been provided, they will be given the information they need to contact the Home Office swiftly so that any error can be rectified. As is currently the case with data provided to Cifas, the Home Office will be able to correct any error in real time—as the noble Baroness mentioned—so that the person’s details will be immediately removed from the data which are shared with the banks.

The noble Baroness also talked about the Joint Committee on Human Rights. I have explained why I do not think this is necessary, but we will consider with care any further representations from the committee.

There was a question on why there is compensation provision for errors made in closure orders but not in freezing orders. There will be repeated checks on the Home Office data and careful consideration of an individual’s circumstances before a freezing order is applied for. The court must also be convinced that the order is appropriate and proportionate. In the light of those comments, for the moment, I ask the noble Baroness to withdraw her amendment.

Immigration Bill

Lord Ashton of Hyde Excerpts

Wednesday 20th January 2016 Lords Chamber

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I do not wish to see Clause 12 stand part of the Bill. We have other amendments in the group, and we intend to oppose the question that Schedule 3 be the third schedule to the Bill. I have some amendments to Schedule 3 as I am not entirely confident that the Minister will instantly accede to our amendments to and arguments on the schedule.

These provisions are about closing premises if it is thought that illegal working is taking place, followed by the possibility of compliance orders. It seems to us that these are something of a sledgehammer set of provisions. If anyone should be allowed to wield a sledgehammer, it should be the courts, not the Executive. A lot of this Bill—as we have said before and, I dare say, will say again—is about sending messages, which we do not think is the purpose of legislation.

The Bill would give immigration officers powers to close an employer’s premises for up to 48 hours when they are satisfied on reasonable grounds that the employer is employing an illegal worker. He might, of course, not necessarily actually be an illegal worker, but someone that the immigration officer has reasonable cause to believe is not entitled to work. I accept the phrase “reasonable cause” but, by definition, “reasonable cause” is not fact. A closure notice can lead on a pretty fast track to a compliance order being imposed for up to two years, which is a matter for the court. It seems to me that any closure, including the initial closure, should be a matter for the court. What happens when there are mistakes, poor decisions or bad judgment on the part of an immigration officer? The consequences for an employer can be considerable to both his reputation and financially, as they can be for the employees legally working for a business and, indeed, for other separate businesses operating from the same premises. Why is this measure required, given the criminal sanctions proposed for illegally employing someone? What safeguards are provided to ensure that this power is not used oppressively? What records will be made of the decision-making process and will they be disclosed to the owner of the premises?

As I said, I have tabled specific amendments to Schedule 3. Paragraph 1(12) requires an immigration officer to consult anyone he thinks is appropriate before issuing a closure notice. Amendment 135 would require consultation—which, of course, in this context would mean discussion before issuing the notice—with, as a minimum, the employer, people who live on the premises and anyone who has an interest in the premises.

Amendment 146 was tabled following debate in the Commons on paragraph 15(3)(d) of Schedule 3, which is about the possibility of compensation for loss being ordered by the court if, having regard to all the circumstances, the court is satisfied that it is appropriate. The discussion was around whether other criteria must also be satisfied. The Government consider that the word “and” should be included at the end of the relevant provision, not “or”. This is clearly an important point. The ability to order compensation for an employer is restricted, as are the circumstances in which compensation can be paid to third parties—the sort of third parties I have mentioned—who would be adversely affected. Therefore, I am not happy with the Government’s amendment, but at least it will bring clarity.

If the Secretary of State has presented inaccurate information to the court which has led the court to make an order which it would not otherwise have made, or the Secretary of State has acted in an oppressive manner or otherwise wrongfully, will the court have the power to order the payment of compensation or damages without having to start separate proceedings? And if not, why not? The government amendments remove all possibility of compensation for losses incurred as a result of an illegal working closure notice if that notice has been cancelled. It seems likely that where a notice has been issued wrongly, the Home Office should move to cancel it. I ask these questions to seek clarification on these provisions.

[Lord Ashton of Hyde (Con)]

My Lords, it might be helpful for noble Lords if I speak now to the government amendments to explain them and come to the noble Baroness’s amendments and the stand part debate at the end.

Government Amendments 136 to 145 and 147 have been tabled in respect of illegal working closure notices and compliance orders. They are technical matters, although they also clarify the circumstances in which a person may apply to the courts for compensation where they allege they have suffered financial loss as a consequence of an illegal working closure notice.

Amendment 136 clarifies that an immigration officer may cancel a closure notice only if either the employer operating at the premises is not employing any illegal workers, or the employer does not have an unspent conviction for the offence of knowingly employing an illegal worker, or has not received a civil penalty for employing an illegal worker which is less than three years old or which remains unpaid. This is because these are the circumstances in which a closure notice may be served, according to Schedule 3, paragraph 1(3) and (6).

Amendment 137 corrects an incorrect cross-reference. Amendment 139 excludes compensation from being available where a notice has been cancelled due to the employer being able to evidence compliance with right-to-work checks only after the notice has been issued. This is to ensure that any deliberate delay by the employer is not incentivised in the knowledge that they could still claim compensation. Amendments 140, 141 and 142 simply delete unnecessary references.

Amendments 143 and 144 make it clear that a compensation order may be made only when there has been a mistake of fact as to the conditions in paragraph 1(3) or 1(6) being satisfied. Employers will be given an opportunity to demonstrate that they have conducted right-to-work checks in relation to any illegal workers found before there is any decision to serve a closure notice. The court has discretion to award compensation where these specified conditions have not been satisfied and the claimant has suffered financial loss in consequence of a closure notice.

Following debate in the other place, Amendment 145 simply confirms that the relevant paragraph has a conjunctive construction. In case some noble Lords do not understand that, it means that we add an “and” to the penultimate sub-paragraph, which means that all the conditions must be satisfied

Amendments 138 and 147 omit paragraph 15(4) as it was felt this contributed to the ambiguity raised in debate in the other place. By preventing compensation for financial loss in relation to a person’s work, it could have been read to prevent all compensation for financial loss in relation to a closure notice, such as the earnings of illegal and legal workers. I can assure the Committee that that is not the Government’s intention. Therefore, the government amendments clarify that the compensation mechanism will apply in cases of mistake on specified grounds. I beg to move.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, at the risk of being a pedant, I point out that, strictly, these amendments are not moved; they are spoken to at this time. They are moved only in the order in which they appear in the Marshalled List.

[Lord Ashton of Hyde]

I apologise. I speak to the amendments.

--- Later in debate ---

I utterly support my noble friends Lady Hamwee and Lord Paddick in opposing that Clause 12 and Schedule 3 stand part of the Bill, and their other amendments in that group.

[Lord Ashton of Hyde]

My Lords, I thank the two noble Baronesses who have spoken. I start by making the general point that these powers will be used only for repeat offenders. They will not be used widely; they are for the most egregious offenders. As well as employing illegal workers, they must already have had illegal working penalties or convictions.

Clause 12, which gives effect to Schedule 3, sets out the regime for illegal working closure notices and illegal working compliance orders. The clause and schedule provide new powers to deal with businesses that repeatedly flout the law by employing illegal workers. The intention is to use them in the most serious cases, as I have just indicated, where civil penalties or previous convictions have failed to change employer behaviour. Such employers may also be exploiting their workers, including legal workers, by not paying the minimum wage or by breaking health and safety legislation. When immigration officers conduct an enforcement visit under existing powers to an employer’s premises, any illegal workers identified may be arrested and the employer may be liable to pay a civil penalty or to prosecution for an offence. Despite this, the employer may continue to use illegal workers who are not apprehended at the time of the visit or who are recruited subsequently. Furthermore, some businesses dissolve to evade sanctions and then reopen in a new name and continue their non-compliance as before. My notes tell me that this is often referred to as “phoenixism” and that may be so. The provisions are designed to break this cycle of non-compliant business behaviour.

The provisions create a new power for immigration officers to close premises for up to 48 hours in certain cases, where the employer or a connected person in relation to the employer has previously faced sanctions for employing illegal workers. An application must be made to a court for an illegal working compliance order, unless the closure notice is cancelled. This compliance order may extend the closure of the premises or make any order the court decides is appropriate to prevent an employer operating at the premises from employing an illegal worker. This might include ordering the business to perform right-to-work checks to ensure that illegal workers are not employed, or to permit immigration officers to enter the premises to ensure that the employer is complying with illegal working rules.

These provisions are loosely modelled on the power to close premises associated with nuisance or disorder, which is in Part 4 of the Anti-social Behaviour, Crime and Policing Act 2014. Let me reassure the House that this power will be subject to appropriate safeguards and its use will not be considered lightly. It is designed to be used as a last resort in the most serious cases, where established methods of securing compliance have been unsuccessful, by limiting the duration of the closure notice that may be served by immigration officers; by making the courts responsible for determining whether a compliance order should be imposed; by providing a right of appeal against a compliance order; and by providing a mechanism to apply for compensation, should mistakes be made, we believe that Schedule 3 provides appropriate judicial oversight of the use of these powers and sufficient safeguards and remedies for those who feel that they have been treated unfairly.

The noble Baronesses, Lady Hamwee and Lady Ludford, talked about what records will be kept and the noble Baroness, Lady Ludford, talked about the transparency in the process. Guidance may be published under paragraph 16 of Schedule 3, after appropriate consultation, which would provide for guidance for immigration officers in respect of how their immigration powers should be exercised and recorded. We will ensure that immigration officers make operational records in their pocket notebooks, as is standard practice, and that this is supported by guidance issued under paragraph 16. The Home Office will monitor compliance as a matter of course.

On the question from the noble Baroness, Lady Hamwee, the compensation mechanism in paragraph 15 does not apply where the court has made an order, since an adversely affected party should, in this case, appeal the order. The court, on hearing an appeal, may make any order it considers appropriate under paragraph 9(5) and this might include the award of compensation. The noble Baroness also asked whether compensation should be payable when inaccurate information is presented to a court by an immigration officer. If a court considers that the conditions for issuing the notice under paragraph 1(3) or paragraph 1(6) were not satisfied, the court may award compensation to a claimant who has suffered financial loss, if it considers it is appropriate. The compensation mechanism in paragraph 15(3), as I have just said, does not apply when the court has made an order, since the adversely affected party should appeal the order. Compensation may be payable at the discretion of the court if the immigration officer supplied inaccurate information to the court as to whether any illegal workers were present at the property or if the employer had not previously been convicted of an immigration offence or received an immigration penalty. Compensation may also be payable when the immigration officer has not used reasonable efforts to notify people who live at or have an interest in the property.

As to the point that the initial closure order should be issued by a court and not an immigration officer, the Government respectfully disagree. We think that the immediacy of the present approach is designed to serve as a deterrent to employers who have repeatedly flouted illegal working rules. The present approach allows for the trigger conditions to be applied to a particular moment in time. Imposing a requirement for an initial court order would give the employer an opportunity to hide their illegal working, including through dissolving the company.

The noble Baroness, Lady Ludford, mentioned that she thought the powers were oppressive and contrary to the rule of law. I point out that the closure of a business premises by law enforcement officers is not unprecedented and the proposal in this Bill, including the safeguards, is modelled on the approach taken in the Anti-social Behaviour, Crime and Policing Act 2014. As a result of those remarks, I hope that in due course the noble Baroness will accept that Clause 12 and Schedule 3, to which it gives effect, should remain part of the Bill.

Turning to the amendments tabled by the noble Baroness, Lady Hamwee, Amendment 135 would require the immigration officer to consult the employer,

“people who live on the premises … and … any person who has an interest in the premises”.

The officer will already be required by Schedule 3 to consult any person they think appropriate before issuing a closure notice, and this may include many of those interested parties. In addition, immigration officers are already required to make reasonable efforts to inform any person who lives on the premises and any person who has an interest in the premises that the notice is going to be issued. A requirement to also consult such people—who, I remind noble Lords, have already committed an illegal working offence—seems an unnecessary additional requirement. Also, paragraph 1 makes it clear that a closure notice cannot prohibit access to premises to any person who habitually lives on the premises.

The amendment also requires the employer to be consulted. I can reassure noble Lords that employers will be given an opportunity to demonstrate that they have complied with the law in this area. The decision to serve a closure notice will not be taken lightly. If the employer can produce evidence that right-to-work checks have been undertaken, Schedule 3 makes it clear that the notice must not be issued, or if such evidence is produced after the notice has been issued, the notice may be cancelled. The whole purpose of serving the closure notice is because the business has repeatedly flouted the law in this area. It will be a serious case where the established civil penalty scheme or previous convictions have not prevented continued illegal behaviour.

Amendment 146 would have the effect of always giving the court the discretion to award compensation, even where immigration officers have acted lawfully and the claimant was responsible for illegal working on the premises. This would frustrate the objective of the proposed scheme of closure notices, which is to strengthen our ability to deal with repeat offenders involved in the use of illegal workers. It would be inappropriate to provide the facility for such persons to obtain compensation for financial loss where the immigration authorities have acted correctly in closing their premises.

In the light of my explanation of these provisions, I hope that the noble Baroness will feel able not to press her amendments.

[Lord Lucas (Con)]

My Lords, perhaps I might ask my noble friend a couple of questions. He said several times that this is to deal with people who are repeat offenders—the most serious offenders—but paragraph 1(6) requires only one offence. As with certain members of the Government who make mistakes in employing illegal workers from time to time, as do many people, it seems unfair to lump them in with people who are deliberately flouting immigration rules. It sounds very much from what my noble friend is saying that the guidance would require many more offences to have been committed than just the one in the previous three years. I would be comforted if he could reinforce that that is the case and say why paragraph 1(6) says only once.

The other thing that I wanted to raise with him is the conjunction between paragraph 1(3) and 1(11). Surely if the person who is employing gets even a few moments’ prior notice that this procedure is about to be activated, he has a “Lord Sugar” defence—all he has to say is, “You’re fired”, and he is no longer employing anyone.

[Lord Ashton of Hyde]

My Lords, in answer to the first question, the whole point is that it is not just sub-paragraph (6) that has to be taken into account before a closure notice is provided; it is in combination with sub-paragraph (3). The condition is that an employer is employing someone illegally and, in sub-paragraph (6), they have to have previously been convicted of an offence. If an immigration officer suspects that illegal working is going on, they can apply for the closure notice if, and only if, sub-paragraph (6) also applies where they have previous convictions in respect of illegal working.

On my noble friend’s second point about giving notice, that is precisely why for the first 24 hours, which may be extended to 48 hours, we feel that an immediate closure notice can be served, before the court is applied to, to prevent employers doing things which would enable them to continue employing illegal workers. The fact that we can do it immediately, albeit for only up to 48 hours, is an important factor in clamping down on this offence.

[Lord Lucas]

My Lords, when paragraph 1(11) says,

“An illegal working closure notice may be issued only if reasonable efforts have been made to inform”,

that surely says that the person who is running the premises has to be told beforehand that a notice is to be issued and therefore there is a small space of time in which people can be disemployed. I agree that a company could not be closed. I understand how sub-paragraphs (3) and (6) work together, but sub-paragraph (6) is the bit that covers the previous convictions and, in my opinion, it does not match the words of my noble friend that this is for the most serious offences and the really rogue offenders. This catches anyone who has made one mistake beforehand. If we are giving the Executive this power, which I do not disapprove of in extreme cases, we should restrict it to extreme cases and not include a person who makes a second mistake within three years, which in the retail industry is not hard to do.

[Lord Ashton of Hyde]

My Lords, we are talking about illegal working by illegal immigrants. It is just a question of what you define as serious. In our view, with employers who have previously been convicted of illegal working offences and who are suspected of employing illegal workers, we regard that as serious. I think it is a question of definition whether you have to have had one, two or three convictions before it applies. At the moment that is where we consider it should be and we consider that serious.

With regard to my noble friend’s earlier point, sub-paragraph (11) says that there is a duty to inform,

“people who live on the premises”—

not necessarily the employer—but we think it is reasonable that people who live on a premises should be informed that a premises might be closed.

[Baroness Hamwee]

My Lords, that is exactly the point about the written words matching the oral words which has been concerning me about paragraph 1(6). I do not know whether the Minister can answer this question now. If there has been a conviction, leaving aside for the moment how many offences there have been, and it is a spent conviction under the Rehabilitation of Offenders Act, it does not apply. But if there has been at any time a requirement to pay a penalty following an illegal working closure notice, and failure to pay that penalty, does that fall within the reference to the Rehabilitation of Offenders Act? I suspect it does not. In other words, although there might be a spent conviction, the non-payment of a penalty notice could blight your business for ever. I am not suggesting that penalty notices should not be paid.

[Lord Ashton of Hyde]

I think that the noble Baroness has made my point for me. If there is a civil penalty and businesses do not pay it, they are not the sort of business which we would necessarily feel that this clause should not apply to. On the concern that the printed words do not match the oral words, I am very happy to write to the noble Baroness to confirm that what I said is correct—and we are of course happy to discuss this at any time afterwards. But in the mean time, I would be grateful if she would withdraw her opposition to the clause standing part.

[Baroness Hamwee]

My Lords, I am not suggesting that the Minister is misrepresenting the Government’s intention. I want to see the intention reproduced on paper. A civil penalty should, at the very least for this purpose, be on all fours with a conviction. After all, it is lighter than a conviction. For it to bite for ever and ever, and come up to bite you in 15 years’ time or whatever, seems inappropriate.

[Lord Ashton of Hyde]

Is the noble Baroness saying that if you do not pay a civil penalty for 15 years, you should get away with it?

[Baroness Hamwee]

My Lords, if you can—in the Minister’s words—get away with a conviction because of the Rehabilitation of Offenders Act, which is well-respected legislation, then you should be able to get away with not paying a penalty in the terms in which we are discussing them. I am not advocating law-breaking or the non-payment of penalties; I am sure that the Minister really understands that.

[Lord Ashton of Hyde]

I do understand, and it might be appropriate to continue this discussion between ourselves later, outside the Chamber.

[Baroness Hamwee]

My Lords, I do not wish to continue that bit of the discussion, but perhaps I might put into a future discussion a question on payment of compensation. The Minister referred to the court being able to pay compensation. Under paragraph 9, it can make any order it regards as appropriate—but a separate paragraph 15, on compensation, requires an application to be made. I think he said that guidance would be given under paragraph 9(5) but I am not sure how paragraphs 9 and 15 work together. I do not expect an answer now; that would not be fair. But I would be grateful if I could have some clarity—others may understand it perfectly—as to how those two paragraphs work together.

I will not test the patience of the Committee by responding to other points. No doubt the Question on Clause 12 is about to be put. We will not at this moment object to it.

--- Later in debate ---

[Lord Green of Deddington]

The short answer is no. We have an asylum system which does not work as fast as people would like, but let us improve the system. The obvious answer is to process the claims more quickly and then this question would not arise. However, I would go back to the original, existing system.

[Lord Ashton of Hyde]

My Lords, this is an emotive issue. As the noble Baroness, Lady Hamwee, said, these are not new arguments. In fact, I think they were had on the last Immigration Act and possibly in immigration Bills before that. Of course, it is an emotive issue and everyone has sympathy with the plight of some of the people whom we are talking about. It is a difficult line to draw and we have to draw a balance.

I have listened carefully to the arguments in favour of allowing permission to work where an asylum claim is still outstanding after six months, removing the caveat that any delay must not be of the asylum seeker’s own making, and lifting restrictions on the types of employment available. The amendments would radically change existing permission-to-work arrangements for asylum seekers and the Government are not convinced that that is sensible. As a general rule, the Government believe that it is not appropriate to allow asylum seekers to work. It is important that we protect the resident labour market for those lawfully present in the UK.

[Lord Roberts of Llandudno]

Did the Minister listen to the employment statistics announced by one of our Ministers three weeks ago? She said that there were 200,000 job vacancies in the UK.

[Lord Ashton of Hyde]

I am not aware of those statistics, but I will take a look at them.

[Lord Green of Deddington]

There are about 600,000 vacancies in the UK, and there always are. It is frictional unemployment. The only way that you can take another job is if a job is vacant.

[Lord Roberts of Llandudno]

Thank you.

[Lord Ashton of Hyde]

We will come to employment in a moment.

It is important that we protect the resident labour market for those lawfully present in the UK and discourage those not in need of protection from claiming asylum for economic reasons. There are provisions in the Immigration Rules to allow non-EEA nationals to come to the UK to take up employment where there are no suitable resident workers available, and which give priority to those coming to fill roles included on the list of shortage occupations published by the Home Office. These arrangements are subject to numerical limits. This ensures that the employment meets our needs for skilled labour and benefits the UK economy. This approach prioritises access to employment and business opportunities for those lawfully in the UK, including recognised refugees. It will undermine this approach if non-EEA nationals can bypass employment restrictions by claiming asylum, particularly where that claim is clearly without merit.

There has been much comment, including tonight from the noble Lords, Lord Alton and Lord Ramsbotham, and the noble Baroness, Lady Hamwee, about historic delays in decision-making in the Home Office, but this has been brought under control. The Home Office met its public commitment to decide straightforward asylum claims lodged before April 2014 by 31 March 2015, and to decide all straightforward claims lodged from 1 April 2014 within six months. About 85% of cases are straightforward. This means that the vast majority of asylum claims are decided quickly. While awaiting a decision, asylum seekers are provided with free accommodation and a cash allowance to cover essential living needs—I will come on to the detail of that in response to the noble Lord, Lord Alton—if they would otherwise be destitute. They can also undertake volunteering activities while their claim is outstanding. I am not relying on volunteering as a primary argument, and it will not be financially beneficial, but it will help with integration, making friends, learning the language, maintaining skills and so forth. I will also deal with the noble Lord’s question about volunteering in a moment.

The Government believe that the current policy strikes the right balance. If a claim remains undecided after 12 months, for reasons outside their control, the person can apply for permission to work. That is a fair and reasonable policy and is consistent with our obligations under EU law. It also assists genuine refugees. It is common knowledge that some people make unfounded asylum claims. The reasons why can be difficult to establish, but it is reasonable to assume that some do so because of the benefits, real or perceived, that they think they will gain. Earlier access to employment risks making asylum more attractive for those who are otherwise not eligible to work in the UK.

Providing more generous employment opportunities for those who claim asylum therefore creates a risk of more unfounded claims. An increase in the number of such claims would slow down the processing of genuine claims and undermine our progress towards a fair and efficient asylum system. The Government do not believe that that is a risk worth taking.

I said that I would address the question asked by the noble Lord, Lord Alton, about voluntary work and volunteering. Asylum seekers can undertake voluntary activity, but it must not amount to unpaid work. They cannot be paid for it and it cannot be undertaken on a contractual basis. The noble Baroness, Lady Lister, asked a straightforward question about whether asylum seekers would be caught by Clause 8 and the offence of illegal working. The right to work is a different question from whether you are in the UK lawfully and it is better if I write to the noble Baroness and send copies to interested Peers to confirm how Clause 8 will affect asylum seekers.

The noble Baronesses, Lady Lister and Lady Hamwee, talked about other countries that allow asylum seekers to work that had fewer asylum claims and whether reducing the period would act as a pull factor for asylum seekers. Germany, which was mentioned by the right reverend Prelate, the noble Lord, Lord Kennedy, and others, allows asylum seekers to work after three months and the highest number of applicants were registered in Germany in 2015, including thousands of migrants from the western Balkans who are economic migrants and rarely qualify for asylum. Germany has the highest asylum intake in the EU.

The noble Baroness, Lady Hamwee, asked about the permission to work, which is limited to the shortage occupation list. The list is based on expert advice from the independent Migration Advisory Committee. It comprises skilled jobs where there is an identified national shortage that it is sensible to fill, at least in part, through immigration. The restriction ensures that the employment meets our needs for skilled labour and benefits the UK economy. Under EU law, we are entitled to prioritise access to work for UK and EEA citizens over asylum seekers. Limiting access for those granted permission to work to employment on the shortage occupation list is an effective mechanism for achieving that. However, those granted refugee status have unrestricted access to the labour market.

The noble Baroness also mentioned the recent news about red doors. As the Immigration Minister told the other place today, we have commissioned an urgent review and officials will be travelling to Middlesbrough tomorrow to begin that.

The noble Lords, Lord Ramsbotham and Lord Alton, talked about the support package that is made available to asylum seekers. Nobody is pretending that they will live in anything like the lap of luxury, but it is not a random amount. The £36.95 per week is in addition to free furnished accommodation, with utility bills and council tax paid; and the weekly cash allowance is designed to meet essential living needs. It is reviewed every year using evidence-based methodology and we are satisfied that we provide enough to meet essential needs. The current level is for each person in the household—the asylum seeker and any dependant—and of course they have access to NHS healthcare and all minor children are legally entitled to free primary and secondary education.

The noble Baroness, Lady Hamwee, asked how many asylum seekers had been awaiting a decision for at least six months. There are around 3,500. As I have said, the delays that have happened before have been brought under control and we have met our public commitments.

The noble Lord, Lord Ramsbotham, talked about Red Cross food parcels. The British Red Cross has produced a report on the problems of destitution faced by asylum seekers which is based on 56 cases, but for the most part these were not asylum seekers. Some 46 of the 56 were failed asylum seekers, people the courts agreed did not need our protection.

As I said at the beginning, this is an emotive issue. The Government do not believe that the risk entailed in reducing the period is worth it. In light of the points I have made, I respectfully ask the noble Lord to agree to withdraw his amendment.

[Lord Kennedy of Southwark]

My Lords, in response to the comments made by the noble Lord, Lord Alton of Liverpool, the Minister referred to the nature of voluntary work. I think we may need a little more detail on that, and perhaps it would be a good idea if he wrote to noble Lords. It is an important point because voluntary organisations and the people who work for them need to be very clear about their position on this matter.

[Lord Ashton of Hyde]

I completely agree that it is an important point and I will be happy to write to the noble Lord and others who have spoken on this after our session in Committee today.

[Lord Alton of Liverpool]

I am grateful to the Minister for his response to the noble Lord, Lord Kennedy. Can he be clear in that response on the distinction that is being made between voluntary activity and voluntary work, which I found very difficult to understand, and I am sure that many in the field will find it perplexing too. Their worry will be that either they as organisations or some of those asylum seekers who are involved in voluntary activities could find themselves prejudiced against or even prosecuted. These are significant issues that need to be addressed in some detail.

[Lord Ashton of Hyde]

I take the point from the noble Lord, and that is why it would be better if our response was written down once we had had a chance to think about it carefully and get our definitions right. I will circulate the response and put a copy in the Library of the House so that voluntary organisations know where they are.

[Lord Kennedy of Southwark]

My Lords, I thank all noble Lords who have spoken in the debate. When applications for asylum take longer than six months, being allowed to work is a reasonable objective. I thank the noble Lord for his response and I look forward to the letter on the points we have just discussed. Some powerful speeches have been made, particularly by the noble Lord, Lord Alton of Liverpool, and many others. Surviving on £5 a day is an impossible hardship and it has to be endured for many months. As my noble friend Lady Lister said, the risk is that these people will be driven into the illegal work market where the risk of exploitation is even greater.

The noble Baroness, Lady Hamwee, mentioned the issue of the red doors in Middlesbrough. It is unbelievable and I hope that the Government will take very firm action, but let us make sure that we do not end up just painting all the doors blue next time. I make that point because this has to be dealt with properly. It is a scandal and an absolute disgrace. With that, and with my thanks for other comments made by the noble Lord, I beg leave to withdraw the amendment.

Immigration Bill

Lord Ashton of Hyde Excerpts

Monday 18th January 2016 Lords Chamber

Moved by

[Lord Ashton of Hyde]

9: Clause 2, page 2, line 17, leave out “whose officers” and insert “whom, or by whose officers,”

[Lord Ashton of Hyde (Con)]

My Lords, before I turn to the amendments before us, it may be helpful to explain what the changes the Government are proposing will do to the Bill print. We have brought forward a number of amendments to Part 1. To avoid this becoming unwieldy, on reprint this will be split into two chapters. Chapter 1 will be entitled “Labour Market Enforcement” and will cover that topic, meaning what is currently Clauses 1 to 7 and the material in government amendments numbered between 9 and 77. Chapter 2 will start at what is now Clause 8 and will cover illegal working.

I have taken on board and listened to what was said in Committee on the Director of Labour Market Enforcement, and his role and resources, and the general points that have been made about these government amendments. In the light of what has been said, it now falls to me, in bringing these amendments forward, to explain the nature of the amendments which bring into being some of the issues we have talked about.

I will begin with those amendments that collectively better define the “labour market enforcement functions”,

“non-compliance in the labour market”,

and “labour market offence” that are within the scope of the labour market enforcement strategy that the director is required to create every year. Some of these are substantive, others are technical in nature, but they all go to the core of the purpose of the Director of Labour Market Enforcement and what should be covered by the annual labour market enforcement strategy.

Amendments 9 and 19 to 23 ensure that all the enforcement bodies’ functions contained in the Employment Agencies Act 1973, the National Minimum Wage Act 1998 and the Gangmasters (Licensing) Act 2004 are brought within the oversight of the director. Amendment 23 has two key purposes. First, it adds new functions of the Gangmasters and Labour Abuse Authority under Part 2 of the Modern Slavery Act 2015 to the list. As I hope noble Lords will know from our response to the consultation on Tackling Exploitation in the Labour Market, published on 12 January, and as we will cover when we reach later amendments, the Government wish the Gangmasters Licensing Authority to evolve into an authority that is able to tackle serious labour market exploitation across the economy. As part of this, we intend that the Gangmasters and Labour Abuse Authority will be able to enforce certain parts of the Modern Slavery Act 2015.

Secondly, Amendment 23 includes the investigation of breaches of the new labour market enforcement orders. As I hope noble Lords will be aware, we are bringing forward amendments to enable a new regime of labour market enforcement undertakings and orders. These will be used to tackle the most unscrupulous employers. I look forward to dealing with this in detail later today but, if it is the will of this House that these undertakings and orders should be added to the Bill, the Government want this regime to be firmly in the scope of the labour market enforcement strategy.

I turn to the abuses in the labour market that we want the director to help us tackle. It is the Government’s intention that the labour market enforcement strategy covers all types of non-compliance by business with the Employment Agencies Act 1973, the National Minimum Wage Act 1998 and the Gangmasters (Licensing) Act 2004, whether they are criminal offences or not. Amendments 16, 17 and 24 seek to better define in legislation the non-compliance that is not an offence but should be included. This is: non-payment of the national minimum wage where it does not meet the wilful criminal intention; failure to pay a notice of underpayment of national minimum wage; and breaching a Gangmasters and Labour Abuse Authority licence condition that results in withdrawal of a licence rather than a criminal prosecution.

The next set of amendments deals with the offences that will be included in the labour market enforcement strategy. The Bill already includes offences under the Employment Agencies Act 1973, the National Minimum Wage Act 1998 and the Gangmasters (Licensing) Act 2004—the three core pieces of legislation enforced by the three enforcement bodies—and offences in Part 1 of the Modern Slavery Act 2015. Amendment 26 excludes an offence from this core legislation that applies to enforcement officers rather than employers—the offence of improper disclosure of information collected by the enforcer. We think this is not best dealt with through the Director of Labour Market Enforcement but is covered by other mechanisms. Amendments 27 and 30 add to the scope of the labour market enforcement strategy the offence of breaching a slavery and trafficking prevention order where the action against the perpetrator was taken by the Gangmasters and Labour Abuse Authority. Amendment 27 also adds to the scope breaches of the new LME orders that the Government are proposing to create. Amendment 29 adds related offences, such as aiding and abetting, to the list.

The Government believe that this is a sensible remit for the Director of Labour Market Enforcement at this time. However, I draw noble Lords’ attention to the powers currently in the Bill which provide that the Government can add further labour market enforcement functions and labour market offences to the scope of the labour market enforcement strategy. Amendment 17 includes the ability for the Secretary of State to also add further non-compliance in the labour market by regulations. The Government believe it is appropriate for such extensions to be made by secondary legislation to enable us to act quickly if it becomes apparent that changes are required urgently. We believe that making these regulations subject to the negative procedure is the appropriate degree of parliamentary oversight. The power would allow the Government only to add labour market enforcement functions, non-compliance or offences already set out in legislation to the scope of the labour market enforcement strategy, not to create new categories of non-compliance or offences.

I turn to the more technical amendments. Amendment 15 removes the definition of “financial year” from Clause 2, which is now contained, along with other relevant definitions, in a new clause proposed in Amendment 62. Amendments 31, 61, 243 and 244 deal with the regulation-making powers under this Part. As I have said, we want the Secretary of State to have the ability to widen the remit of the Director of Labour Market Enforcement’s annual labour market enforcement strategy, should the nature of exploitation change in the future. This will make sure that the role stays relevant to prevent abuses in the labour market. Secondly, we want the Secretary of State to have the ability to confer extra functions on the Gangmasters and Labour Abuse Authority by regulations for the same reason: if there are new abuses in the labour market that we need the authority to be able to crack down on. The Government believe that the appropriate level of parliamentary scrutiny for these regulations is the negative procedure. This is because Parliament has approved the regimes and the Government are keeping them up to date. However, were any primary legislation to be amended as a consequence, we believe it is appropriate for the affirmative procedure to apply, as that merits a higher level of parliamentary scrutiny. Thirdly, the ability to add to the list of trigger offences would enable enforcement bodies to request an LME undertaking. Again, this will mean that our labour market enforcement can be flexible to changing non-compliance and criminality in the labour market. Lastly, the list of measures that can be included in an LME undertaking and an LME order are added to.

For these three regulation-making powers, we are proposing that the affirmative procedure should apply. This is because a breach of an LME order is a criminal offence, and we want that to be subject to appropriate scrutiny here and in the other place. In relation to the territorial extent of the regulations, Amendment 61 makes clear that the regulation-making powers can contain only devolved matters with the consent of the Ministers in the relevant devolved Administrations. Finally, Amendment 246 changes the Long Title of the Bill to better reflect the functions which have been added since introduction. I beg to move.

[Baroness Hamwee (LD)]

My Lords, my noble friend and I have one amendment in this group. It is an amendment to the Government’s Amendment 17, which allows other requirements to be added to the list of roles already set out, and other enactments to be added. The noble Lord said that this does not mean the creation of new offences: I accept and understand that. He also said that it will extend to “non-compliance in the labour market”. That is exactly what I am seeking—

[Lord Ashton of Hyde]

I am sorry to interrupt. Could the noble Baroness tell me which amendment she is speaking to?

[Baroness Hamwee]

It is Amendment 18, which is an amendment to government Amendment 17. From the way in which the Minister introduced Amendment 17, I think that he was anticipating Amendment 18. He seemed to glance in my direction at the time as well.

The Minister said that the fourth paragraph of Amendment 17, regarding,

“failure to comply with any other requirement imposed by or under any enactment and which is prescribed by regulations”,

was to deal with other enactments which related to non-compliance in the labour market. My amendment seeks an assurance to exactly that effect: that the Secretary of State could not roam far and wide over the statute book by adding whatever enactment took his or her fancy under that paragraph. I realise, looking at Amendment 18 now, that my drafting is not completely correct—in other words, it is wrong. I have taken out too many words, but I am sure that the Minister and his officials will have understood what I was driving at.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I welcome the greater powers for the Gangmasters Licensing Authority, both in this group of amendments and in a later group. The authority has done extremely good work ever since its inception in legislation and I am delighted that there will in due course be powers for its officers to take steps under PACE. I appreciate that that provision is not in the present group, but I want to say that in case I am not here when that point comes up.

I want to put two points to the Minister. First, how far afield is he expecting the Gangmasters Licensing Authority to roam? In particular, does he have in mind either the hospitality or the construction industry, each of which should at some stage be under the control of that authority, or possibly this new director, in a way which is not covered at present? Secondly, if in fact the Gangmasters Licensing Authority is to have further powers, as it will, it is crucial that it has greater resources. That matter should be absolutely upfront because if its officers are allowed to become prevention officers—to be able to arrest and to do much more than they can at the moment—it really does not have sufficient resources to carry that out, let alone anything further that needs to be done.

[Lord Ashton of Hyde]

My Lords, several noble Lords said right at the beginning of our debate that these government amendments came fairly late, but noble Lords on the opposition Benches are not the only ones to suffer from that. I will therefore have to ask the noble Baroness, Lady Hamwee, for her indulgence because I am afraid that her Amendment 18 was not contained within my speaking notes for this group. It is an amendment to our Amendment 17, but I do not have the details of how I should refute it with the power that I normally would. As my noble friend Lord Bates said right at the beginning, and as I think the noble Baroness mentioned, some of these issues may be revisited at times on Report—but I accept that that is not a very compelling argument tonight.

The noble Lord, Lord Kennedy, talked about negative and affirmative procedures. I have never known him to agree that we should have a negative procedure when we could have the affirmative. I do not want to repeat the reasons that I gave, but we have made a distinction between regulations that create new offences or affect primary legislation and those which merely deal with existing offences, where we still maintain that the negative procedure is correct.

The noble and learned Baroness, Lady Butler-Sloss, asked how far the remit of the Gangmasters Licensing Authority will roam in future. I cannot tell her that today, but I absolutely take on board her point. As I said in my opening remarks, we intend that the authority should evolve. That is the whole point of our changing the Gangmasters Licensing Authority to the new arrangements, and putting it under the remit of the Director of Labour Market Enforcement. The only thing we are likely to be concerned about—we have made this point before—is that it will be for labour market enforcement issues and not for other things. However, I take on board the noble and learned Baroness’s point on where it might evolve.

Of course, the Director of Labour Market Enforcement is required to outline a strategy. That is one of the things that we would expect him to do, having used the intelligence hub to work out where the efforts of his three enforcement agencies should best be employed. I also take on board that if we are expanding their role, there will be resource implications. My noble friend Lord Bates has already committed to write to noble Lords about the resource issue, so I would like to leave it there and ask that the amendments be accepted.

[Lord Kennedy of Southwark]

I assure the noble Lord that I would be very happy to agree to a negative procedure. I have nothing against that at all, but my concern here is that we have not had the greatest time today, with amendments arriving late. It is about my lack of confidence and the fear that we may be sitting back here in some weeks’ or months’ time with problems, only for us to say, “I told you so”.

[Lord Ashton of Hyde]

I hear what the noble Lord says.

Amendment 9 agreed.

Immigration Bill

Lord Ashton of Hyde Excerpts

Monday 18th January 2016 Lords Chamber

Moved by

[Lord Ashton of Hyde]

43: After Clause 7, insert the following new Clause—
“Labour market enforcement undertakingsPower to request LME undertaking
(1) This section applies where an enforcing authority believes that a person has committed, or is committing, a trigger offence.
(2) An enforcing authority may give a notice to the person—
(a) identifying the trigger offence which the authority believes has been or is being committed;(b) giving the authority’s reasons for the belief;(c) inviting the person to give the authority a labour market enforcement undertaking in the form attached to the notice.(3) A labour market enforcement undertaking (an “LME undertaking”) is an undertaking by the person giving it (the “subject”) to comply with any prohibitions, restrictions and requirements set out in the undertaking, as to which see section (Measures in LME undertakings).
(4) “Trigger offence” means—
(a) an offence under the Employment Agencies Act 1973 other than one under section 9(4)(b) of that Act;(b) an offence under the National Minimum Wage Act 1998;(c) an offence under the Gangmasters (Licensing) Act 2004;(d) any other offence prescribed by regulations made by the Secretary of State;(e) an offence of attempting or conspiring to commit an offence mentioned in paragraphs (a) to (d);(f) an offence under Part 2 of the Serious Crime Act 2007 in relation to an offence so mentioned;(g) an offence of inciting a person to commit an offence so mentioned;(h) an offence of aiding, abetting, counselling or procuring the commission of an offence so mentioned.(5) “Enforcing authority”—
(a) in relation to a trigger offence under the Employment Agencies Act 1973, means the Secretary of State or any authority whose officers are acting for the purposes of that Act (see section 8A of that Act);(b) in relation to a trigger offence under the National Minimum Wage Act 1998, means the Secretary of State or any authority whose officers are acting for the purposes of that Act (see section 13 of that Act); (c) in relation to a trigger offence under the Gangmasters (Licensing) Act 2004, means the Secretary of State or any authority whose officers are acting as enforcement officers for the purposes of that Act (see section 15 of that Act);(d) in relation to an offence which is a trigger offence by virtue of subsection (4)(d) (including an offence mentioned in subsection (4)(e) to (h) in connection with such an offence), has the meaning prescribed in regulations made by the Secretary of State.(6) In subsection (5), a reference to an offence under an Act includes a reference to an offence mentioned in subsection (4)(e) to (h) in connection with such an offence.
(7) In this section references to the Gangmasters (Licensing) Act 2004 are references to that Act only so far as it applies in relation to England and Wales and Scotland.”

[Lord Ashton of Hyde (Con)]

My Lords, these government amendments introduce new clauses to create a new regime of labour market enforcement—LME—undertakings and orders, backed up with a criminal offence for non-compliance. As such, they are an important part of the Government’s response to the consultation Tackling Exploitation in the Labour Market, where respondents agreed that there was a need to tackle exploitation falling between routine breaches of labour market legislation and very serious offences, which are dealt with by the police or the National Crime Agency. This means that, for the first time, individuals within rogue businesses face the possibility of imprisonment for repeated or serious breaches of labour market legislation, many of which are currently punishable only by a fine. However, as I am about to describe, a business will have several opportunities to put matters right before facing prosecution.

Taking national minimum wage offences as an example, an initial offence would be dealt with using the existing civil penalty regime. Money owed to the worker would also be recovered and the new regime will not affect this. However, if a business decided to take the hit and continue underpaying its workers then a labour market enforcement undertaking could be sought, requiring the business to take reasonable steps to ensure compliance in future. This could be an update to its software, for example, a measure which a law-abiding business would have implemented on its own initiative. If the business refused to give or failed to comply with an undertaking, the enforcer could apply to the court for a labour market enforcement order. This would contain similar corrective measures, as ordered by the court. A court could also make such an order when sentencing for a labour market offence. Only where the business failed to comply with the order would prosecution be a consequence.

The new clause inserted by Amendment 43 allows one of the enforcement bodies to request that a subject enters into an LME undertaking where it believes that a trigger offence has been or is being committed. “Trigger offence” is defined as meaning,

“an offence under the Employment Agencies Act 1973 other than one under section 9(4)(b) of that Act … an offence under the National Minimum Wage Act 1998”,

or,

“an offence under the Gangmasters (Licensing) Act 2004”,

including secondary and related offences.

The new clauses inserted by Amendments 44 and 45 set out what measures may be included in an LME undertaking and their duration. These must secure compliance with labour market legislation, publicise the undertaking and subsequent remedial action or be a measure of a kind prescribed in regulations by the Secretary of State. We envisage this power being used to prescribe measures to protect workers such as taking steps to inform them of their rights or preventing the unlawful retention of documents. All the measures must be just and reasonable, and at least one measure must be necessary to prevent or reduce further offending. The undertaking must make clear how any such measures will secure compliance. An undertaking takes effect when accepted by the enforcing authority unless alternative arrangements are made within it, and can last for a maximum of two years. The enforcing authority may release the subject from an undertaking, and must do so if none of the measures within it is necessary to reduce or prevent further offending. The new clause inserted by Amendment 46 governs the service of a notice to request an undertaking, including where the suspected offender is a body corporate or a partnership.

The new clauses inserted by Amendments 47, 48 and 50 set out the arrangements by which the enforcing authority can apply to the court for an LME order and the measures it may contain. An application may be made where the proposed respondent has refused or failed to enter into an undertaking within a negotiation period of 14 days, or longer by agreement. An application may also be made where the proposed respondent has failed to comply with the undertaking. The court must be satisfied, on the balance of probabilities, that the trigger offence has been or is being committed. The court must also be satisfied that the order is just and reasonable. The measures that the order can contain are the same as the undertaking. The appropriate court is the magistrates’ court, sheriff court or court of summary jurisdiction, according to where the conduct constituting the offence took place.

The new clause inserted by Amendment 49 makes provision for a sentencing court to make an LME order following conviction for a trigger offence. The new clause inserted by Amendment 51 states that an order may not be made in respect of a child and that its maximum duration is two years. When making an order, the court may release the respondent from any previous order or from any undertaking made in respect of the same trigger offence. The new clauses inserted by Amendments 52 and 53 make provision for orders to be varied, discharged and appealed.

The new clause inserted by Amendment 54 puts a duty on the Secretary of State to issue a code of practice on the exercise of the new enforcement regime. This will make it clear to enforcing authorities how the regime should be applied alongside their existing sanctions. The code of practice will be laid before Parliament and published, and the enforcing authorities must have regard to the current version.

The new clause inserted by Amendment 55 provides that the powers conferred on officers to investigate trigger offences may also be used when investigating breaches of an LME order. In the case of the Gangmasters and Labour Abuse Authority, these powers will be extended by Amendments 17 and 40, and it will therefore have the powers to investigate trigger offences under employment agency and national minimum wage legislation.

The new clauses inserted by Amendments 56 to 59 create a criminal offence where a respondent fails to comply with an LME order. The maximum penalty is two years’ imprisonment and/or a fine on conviction on indictment, or 12 months’ imprisonment and/or a fine on summary conviction. Where the offence is committed by bodies corporate, unincorporated associations or partnerships, an offence is also committed by the officers of the company, the members of the unincorporated association or partners respectively, where it is proved that the offence was committed with the consent or connivance of, or attributable to the negligence of, that individual. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have some amendments in this group. The first is an amendment to government Amendment 47, on the power to make an LME order. Under subsection (1) of the new clause, the court must be,

“satisfied, on the balance of probabilities, that the person has committed, or is committing, a trigger offence”.

My amendment would change the balance of probabilities to “beyond reasonable doubt”. A trigger offence relates to offences under other legislation as well as being an offence in itself so I do not understand why the civil standard of proof is thought to be appropriate. If the answer to this is that it is in effect covered by the new clause in Amendment 49, which is different, then is there not a problem in having differing standards of proof? I would be grateful for an explanation here.

Amendment 50A is an amendment to government Amendment 50. It would leave out the provision that one of the purposes of a measure—a “prohibition, restriction or requirement”—included in an LME order is bringing it,

“to the attention of persons likely to be interested in the matter”,

and other points. If this is about communication across the actors in labour market enforcement, should it not be for the director to make sure this happens? Why is it a measure in a court order? It does not seem a matter for the courts. I can see that it may be necessary, for instance, to inform employees about an order but it seems very cumbersome and not appropriate in this context.

My final amendment in the group is an amendment to government Amendment 57, which, dealing with “Offences by bodies corporate”, defines an officer of a body corporate as including a “manager”. My amendment would take that out. I am used to seeing directors, secretaries and so on as officers of a company but a manager—though I admit I will be very out of date on company law provisions—to me means something quite different and not with the same responsibilities as a director of a company.

--- Later in debate ---

[Lord Hylton (CB)]

My Lords, what I have to say follows from what the noble Lord, Lord Kennedy, has just said. Amendment 43 refers to offences under four existing Acts together with inciting, aiding, abetting or counselling such offences. These can trigger undertakings. Amendment 44 refers to notices, orders and enforcement. All this is bound to cost money. Resources have been repeatedly mentioned today, so I must ask: how much of this additional expenditure will be new money and how much will be transferred from the enforcement mechanisms of the existing legislation? It would be a great waste of our time and effort to create a series of new offences without having the means to cope with them.

[Lord Ashton of Hyde]

My Lords, I thank noble Lords for their remarks. Before I move to the amendments spoken to by the noble Baroness, Lady Hamwee, I shall comment on the points raised on the government amendments.

I was asked when the new system, which the noble Lord, Lord Kennedy, described as burdensome, will be used. This is a new power to be used after the existing penalties have been applied under the existing Acts. For example, in national minimum wage regulations, the current penalty is naming and shaming. In other areas, there are civil penalties. These amendments are designed for egregious offences and repeated offences where, for example, some companies may decide to take the fine and continue to pay their workers less than the minimum wage. We have included these new powers to put an end to breaches of labour market rules. We think they are an important part of the new toolkit to address these serious matters.

Resources have been mentioned on several occasions this evening. I take the point that if these new powers are not properly enforced, there will be no point in having them. My noble friend has already committed to talk about resources and to write to noble Lords on that subject, and I will ask him to include this in his letter.

The noble Lord, Lord Kennedy, raised the subject of electronics. He cleverly included matters which are nothing to do with this Bill. Of course, electricity is dangerous when it is incorrectly applied. The electronic means in this Bill bring it into the 21st century, but that does not mean that they should be used in all cases.

The noble Lord, Lord Hylton, talked about the four current Acts which can trigger the possibility of going into enforcement, and—again—he mentioned money. I agree it is bound to cost some money. As I said before, my noble friend will include that in his reply, if I could leave it like that for the time being.

Of course, the Director of Labour Market Enforcement will set out in his strategy how the funding that is available for the enforcement agencies should be allocated. Every year he makes an annual report. It would be very surprising, if he were underresourced, that he would not refer to that in his annual report.

As I have said to the noble Lord, Lord Kennedy, routine cases will continue to be dealt with using existing powers. There will be LME undertakings, and then orders will be for the more serious cases.

I move on to the amendments in the name of the noble Baroness, Lady Hamwee, to which I listened carefully. Amendment 47A would change the court’s power to make an LME order on application from an enforcement agency, so that the court would have to be satisfied beyond reasonable doubt that the person had committed or was committing a trigger offence.

We think it appropriate that a court should be able to make an LME order on application from an enforcement agency on the basis of the balance of probabilities rather than the criminal standard of proof. In these circumstances, the order is designed to prevent further offending, not as a means of sentencing the person on conviction for an offence. The amendment would limit the ability of enforcement agencies to invoke the LME order regime to secure compliance as an alternative to straightforwardly prosecuting the person for a trigger offence.

Amendment 50A would remove the court’s power to include a prohibition, restriction or requirement in an LME order on bringing the order, the circumstances in which it was made and any action by the respondent to comply, to the attention of persons likely to be interested in the matter. However, we think it right that the courts, in making an LME order, should be able to require a business to make the matter known to interested parties, and failure to do so would result in a breach of the order with the possibility of prosecution for the consequent offence. It is properly for the courts, not the Director of Labour Market Enforcement, to impose this requirement. The amendment would significantly weaken this provision, possibly enabling those subject to an LME order to conceal it from its employees, creditors and trading partners.

Amendment 57A would remove from the provisions relating to offences by bodies corporate the possibility of a manager committing the offence of failing to comply with an LME order where they have consented or connived in the offence or it was attributable to their neglect. However, it is appropriate that managers, in addition to their companies, should be held liable for the offence of failing to comply with an LME order where the offence resulted from their neglect, consent or connivance. Secondary liability provisions of this kind, including liability for managers, are commonplace in other legislation. The principle that managers can be held liable for offences committed by their company in certain circumstances is well established.

In the light of what I have said, I hope that the noble Baroness will agree not to move her amendments.

[Lord Kennedy of Southwark]

The Minister made reference to a point I picked out about electronic communications. It is his party that decided to allow the use of electronic communications in this Bill for contacting people who may have committed some very serious offences. Another Bill, also on the Floor of this House around the same time, is denying law-abiding citizens to get their communications by electronic means. I asked the Minister if he would point out that contradiction to his friends in BIS, particularly the noble Baroness, Lady Neville-Rolfe. I would be grateful if he could confirm that he will do that.

[Lord Ashton of Hyde]

My Lords, I am very happy to report the noble Lord’s comments to my noble friend Lady Neville-Rolfe. I would not necessarily call that a contradiction but I will certainly bring his remarks to her attention.

[Baroness Hamwee]

My Lords, I will go back and look at the standard of proof that is required. My concern was that an LME order is a step along the way—a part of a process that seems to require, as an appropriate standard of proof, to be beyond reasonable doubt.

With regard to “an officer” including a manager, my concern is whether the term “manager” is understood in the same way by everyone. We know what a director is—it is defined in legislation, you sign up to it and so on—but there could be doubt as to whether an individual was actually a manager or not, and that is where my anxiety lies. I appreciate that the Minister is not in a position to make any further comment today but perhaps it is something that we can look at. This is not intended as an opposition political point; it is a real concern about how the legislation will work.

[Lord Ashton of Hyde]

I am happy to say that my noble friend is prepared to talk to the noble Baroness about that before the end of Committee—or before Report, anyway.

Amendment 43 agreed.

Immigration Bill

Lord Ashton of Hyde Excerpts

Tuesday 22nd December 2015 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, from these Benches we find little that is positive in the Bill. We fear that it will increase discrimination, exploitation, destitution and homelessness. It will risk children’s welfare, turn citizens into enforcers through outsourcing and reduce the UK’s reputation in employment and other sectors—all of this, and more, without making any progress on a time limit for immigration detention, on family reunion, on integration and on community cohesion. This is the Bill we would have had in the last Parliament had it not been for the moderating effect of coalition government.

I thank the Minister for the pack from the Home Office that deals with some of these anxieties with what it calls “myth-busters”. I am afraid that the perspective of these Benches is different and I pray in aid two policy areas. The first is family reunion. When the Government are asked about relaxing the very restrictive rules, we are reminded that family visas can be issued outside the Immigration Rules on the basis of exceptional, compelling and compassionate circumstances—which is good to know, but how many have been issued? In 2011, the total was 77. In 2012, it was down to 30. In 2013, it was down again to 18, and in 2014 the total was just 12. My first thought was how counterintuitive this was, given what is going on in the world. My second thought was: in view of the experiences of people caught up in, or driven out of, Iraq, Syria, Afghanistan, Eritrea, Sudan and other countries, the situation is not exceptional.

My second example is the UN’s review of overseas domestic workers and their visas. The aims of the review included bringing their lives out of the relative shadows into an open and legal framework where they can receive the proper protection of the law. The review supports points made forcefully by a number of noble Lords during the passage of the Modern Slavery Bill. These were resisted by—or perhaps did not find traction with—the Government at that point until the very last knockings of the Bill, when its very passage was threatened. The Minister will understand that this will encourage us to stick to our guns when we are convinced that this Bill should be amended. He will also be aware that, given the current debate on how secondary legislation is dealt with, we will want at least very clear assurances about the detail of the regulations provided for in the Bill.

I hope that the Minister can tell us today—not just this House but those outside it—whether the Government plan to implement Mr Ewins’s recommendations. If they do not plan to implement all of them, which of them do they plan to implement, and when?

Second Reading is a time when one can attempt to give only a flavour of one’s approach. So to the organisations and individuals who have sent so much thoughtful and powerful material—I measured it this morning; it was almost 5 centimetres deep—I say, “Thank you, and if you are not mentioned directly, none of it will be wasted”.

I will start with some of what is not in the Bill: family union and reunion. Last week I asked whether the Government would allow people of Iraqi or Syrian origin, for instance, who are settled here to sponsor family members. The rules are very restrictive and the processes complex. They do not even allow for a child asylum seeker who has arrived here alone to bring over his closest family. If I had a 19 year-old daughter who had to be left behind in a camp in the Middle East, that would be exceptionally tough. If I had a 24 year-old son married to a Costa Rican, starting his career and not earning much, I would be very confused why his own country would not welcome his wife. As for myself, with neither of those children, I want my country to work on safe routes for refugees. The Bill’s maritime enforcement powers beg the question of what is to be done to help the passengers—or victims—once a ship without nationality is stopped.

I was a member of the all-party group inquiry into immigration and detention, as were a number of other speakers today. I was struck then by the paradox at the heart of unlimited detention: the lack, one might even say deprivation, of hope—might detention last for ever?—coupled with uncertainty that tomorrow one might, without warning, be deported. We will certainly look at the time limit. Sweden is one country where returns of unsuccessful asylum seekers is achieved more humanely and with a higher rate of voluntary returns. The returns process will be another point of focus.

I appreciate that the Bill deals with immigration bail. Seeking asylum is not equivalent to the commission of an offence with a trial pending, as the term “bail” suggests. Though we have tried before, we will try again on the right for asylum seekers to work within a reasonable period of their arrival and in occupations not regarded by the Government as in shortage. For us, it is a matter of integration and not badging asylum seekers as “other”.

Many who have the right to work and come from other parts of the EU do not understand that they have rights and are vulnerable to exploitation. This is the experience of the Gangmasters Licensing Authority, the future of which seems unclear in the light of this Bill and the recent consultation. Another question to the Government is what their plans are with regard to amendments in this area, what those amendments are and when they will be made.

I am not entirely comfortable with Part 1 of the Bill. Inevitably, there will be tensions because there are different priorities between the departments involved. At the moment, we have three entities funded separately: HMRC, enforcing—though some say it does not—the national minimum wage; the Employment Agency Standards Inspectorate, a group of civil servants within BIS; and the Gangmasters Licensing Authority, a non-departmental public body with a board. What is that board for if not to create a strategy, a function which is to go to the new director of labour market enforcement? Even before that question is answered, there is the one of who—the Home Office or BIS—will appoint the director and to whom the strategy is submitted. There is a great deal to explore around governance powers, the sectors, resources, avoiding confusion between inspection and enforcement, and, in the case of the new director, his or her very purpose. There is even the name of the Gangmasters Licensing Authority: the consultation refers to a possible change of name but does not pursue that. That is not a frivolous point as the GLA is a very strong brand.

I had thought that we might have a year without a criminal justice Bill, but of course we have the immigration-related offences. Those may be what the Government call a logical extension to the preceding legislation but I would be happier to see an end to that legislation instead. It is objectionable that employers and landlords are enlisted in the cause of enforcement and subject to difficult requirements with a criminal sanction. Landlords may not set out to discriminate—most will not—but I would not fancy your chances of easily finding accommodation if your name is “Afshar”, “Ahmed”, “Janke” or “Hamwee”. It is not as if everyone can produce a single, easily understood document to prove status. Some 17.5% of the UK population do not have a passport, and I suggest that there is likely to be a higher proportion of such people among those who are seeking rented accommodation. The homelessness that may ensue is so often a trigger for exploitation. Also, eviction on the say-so of the Home Office without court involvement goes against all our instincts. In the employment context, the new illegal working offence is something else that we believe will add to the vulnerability to exploitation. Elsewhere in the employment forest, will the skills charge add to the UK’s reputation internationally?

I am sure that the House will live up to its reputation for scrutiny of the enforcement powers of the state and rights of appeal. Immigration officers already have considerable powers, which will now relate to crimes as well as to civil penalties and removal from the country. Those powers will be extended from immigration officers trained as criminal investigators to all—but with what recourse? In the case of the police, as a comparison, there is the IPCC.

One of the “myths busted” in the Government’s information pack is that asylum support appeals are to be scrapped though 60% are currently allowed. Leaving aside for now challenging that assertion, I would not say that the figure given in the pack of 37% of appeals being dismissed is anything to boast about, nor is extending the cohort of migrants who must appeal from overseas. Where is the equality of arms so fundamental to our justice system—that is, where there is any right of appeal at all?

The Government’s human rights memorandum acknowledges that Article 6, the right to a fair trial, is engaged regarding the refusal of new Section 95A support, but says that this is, again,

“susceptible to judicial review and emergency injunctive challenge where appropriate”.

How realistic is this, even if there were no residence test? In assessing the Bill’s compatibility with various convention rights, I am sure that proportionality will be to the fore. New Section 95A says that support for asylum seekers whose application has failed can be by way of vouchers. What a pity not to have got rid of this bureaucratic and inflexible arrangement. That might be a minor point, though, compared with other aspects of this section. We are told that the regulations will provide “very narrowly drawn” criteria for facing,

“a genuine obstacle to leaving the UK”,

and that the grace period will be short. We will not be able to amend the regulations, so it is inevitable that we will seek to challenge the Government’s plans through primary legislation.

If we do not spend time today on the horrors and risks of destitution, that is not because we ignore them. We are aware of the government amendments to plug gaps in the provision, but the Minister will be aware of views that there is a real risk that destitute families will fall through the gaps. It is not only those who fail in their application who find themselves in such difficulty. The Red Cross reports on what is called the “move-on” following the grant of refugee status, and makes practical recommendations to avoid breaks in support, which I hope we can use the Bill to look at.

The House has a veritable army prepared to fight for children’s well-being. Children’s best interests, whether among their family or if they are unaccompanied, should run through the Bill. I do not dismiss the pressures on local authorities; I have been there. As the LGA says, no council should be made to choose between supporting unaccompanied asylum-seeking children and providing vital services for their local community. The Minister dealt with the position of local authorities, but I noticed that he did not answer his own question about the transfer of burden to the third sector. There are still resource issues to be sorted out, together with the Home Office—should it not be the DCLG, if anyone?—exercising powers of direction on local authorities.

Issues of support are the subject of most of the representations which I and, no doubt, others have received from individual members of the public, although I do not think any of them have described as disingenuous applying the Home Office term “simplify” to the basis of assessment and support of people with immigration status who are destitute.

What should our immigration policy say about our Government? Should it say they are responsible and humane, show leadership and are closer to Trudeau than Trump? Will pulling up the drawbridge make us a better nation? The movements of people that we are seeing now will be as nothing if, or when, climate change drives even bigger movements. What will we do then?

[Lord Ashton of Hyde (Con)]

It may be helpful if I note that there are 31 speakers for today’s Second Reading debate and that if Back-Bench contributions are kept to around eight minutes, the House should be able to rise by 5.30 pm.