The Committee consisted of the following Members:
Marek Kubala, Joanna Welham, Committee Clerks
† attended the Committee
To limit powers of search to the ship, the port and as conveniently as possible thereafter, not anywhere in the country.
See explanatory note for Amendment 230.
To prevent persons accompanying immigration officers carrying out searches in accordance with this part of the Bill.
To remove the immunity from prosecution and civil suit for constables and enforcement officers exercising powers under the Bill.
See explanatory note for Amendment 230.
See explanatory note for Amendment 230.
See explanatory note for Amendment 239.
See explanatory note for Amendment 242.
See explanatory note for Amendment 230.
See explanatory note for Amendment 230.
See explanatory note for Amendment 239.
See explanatory note for Amendment 242.
The Solicitor General (Robert Buckland): On a point of order, Mr Owen. This morning I assured the hon. Member for South Shields that a letter would be written. It has indeed now been sent to you and Mr Bone. I hope that that will answer some of the queries that she raised in debate some sittings ago.
in relation to ships. We spoke this morning about the power to stop, board, divert and detain a ship, and about the power to search and obtain information under new paragraph 3. Under new paragraph 3(2) the “relevant officer” may search
“Elsewhere” is obviously widely defined. There is a power to search the ship and anyone or anything on it, which suggests that it is ship-focused, but sub-paragraph (8) is open-ended and provides for a power to search on the ship or anywhere. To some extent the amendment may have a probing function to enable us to understand the reasoning behind the provision, but our concern is that the power is very broad and we seek assurance that it is not intended that the power under the schedule could be exercised literally anywhere, at any time.
Secondly, to give the context to amendment 239, new paragraph 4 deals with the power of arrest and seizure; new paragraph 5 is on protective searches of persons—searches that can be made of individuals to seize and retain items; and new paragraph 6 deals with searches for nationality documents.
Then comes new paragraph 7, which is odd. The “relevant officer” appears pretty well through the Bill and is the officer with the relevant powers, training, duties and so on. New paragraph 7(1) provides for assistants:
If that means what it says, anybody can exercise powers of search, including searches of people, and other powers without the need for any of the normal training and safeguards around the exercise of that power. On the face of it, simply anybody with the officer who is deemed to be an assistant can carry out all of these functions. That is an extraordinarily wide power. I do not think that exists in other areas of the law. Designating someone as an assistant in that way certainly does not exist in relation to police officers or other enforcement officers. That is a very broad power.
That is a very wide-ranging immunity which is as broad as anything I have ever seen. If, heaven forbid, there were a fatality when someone was being held or searched or force was used—as has tragically happened in immigration cases—this would exempt from any criminal or civil proceedings anyone acting in good faith with reasonable grounds, notwithstanding the other common law and statutory defences that would be available. On the face of it, that would prevent a court looking into the exercise of these powers. That is obviously a deep cause for concern. Although there are many amendments, those are the three core issues that run through the set.
Gavin Newlands (Paisley and Renfrewshire North) (SNP): We can all agree that we do not want to see anyone attempt to gain illegal entry into the UK by means of being smuggled in an overcrowded boat or vessel. Ensuring that immigration officials have the proper power to carry out their important duties is important not only in terms of enforcing our immigration control but with regards to increasing safety at sea.
That said, part 6 and, in particular, schedule 8 introduce a raft of new powers for immigration and maritime officers. It is only right and proper that we scrutinise those powers appropriately to ensure that the proper powers are being introduced to the correct officers and that they balance appropriately with the liberties that people are entitled to. I am not convinced that these provisions in their current form meet that aim and balance the equipping of immigration officers with the power that they need with ensuring that they treat international citizens with the respect that they deserve. Therefore, the aim of the amendments is to strike that balance between protecting an individual’s liberty and human rights and giving Home Office officers sufficient, important powers to carry out their duties. I accept that this is a difficult balance for the Home Office to strike.
We should be concerned about the regular use of the word “elsewhere” throughout this section of the Bill and what that implies. This in particular relates to the searches that will be conducted into the personal lives of individuals. In earlier sittings of the Committee, we have spoken about the dangers of speculative searches and the Home Office’s poor track record on completing them. I will not repeat the arguments already made but I will stress that these searches could have a significant and deteriorating impact on community relations and social cohesion.
Amendments 239, 240 and 241 make the point that, regardless of what happens with the Bill and the form it ends up taking, regardless of what law is finally passed, we all need to be sure that we have fully trained, capable and appropriate individuals carrying out the checks and enforcement that the law will demand. They will have powers of arrest without warrant, search, arrest and seizure. The Bill proposes that persons wholly unspecified may be able to carry out all these powers without limitation, under supervision of an immigration officer. Any powers under these provisions should be
The responsibilities of immigration officers who are operating at sea are arguably more demanding than those who are operating on land. Not only do they have to be qualified in immigration law, but they have to be experienced at dealing with ships at sea. This is an extremely important point. Safety concerns are at stake and I again make the point that we cannot make a half-hearted attempt on who we delegate these powers to. Schedule 8 may not have been one of the most widely discussed provisions in the Bill, but that should not distract our attention from it. Events over the summer have highlighted the danger that exists in trying to gain asylum through a vessel of some sort. Schedule 8 grants officers the
The Minister for Immigration (James Brokenshire): I hope that, with our clarifications and assurances, hon. Members will realise our purpose and intentions. We are taking the power because of a gap in the law. Until now, there has been a small number of relatively isolated incidents involving suspected facilitation in UK territorial waters. However, those incidents illustrate a gap in the legislation. Border Force officers currently have no powers to act unless the vessel is also of customs interest. In those circumstances, they have to pass the information to immigration officers on land and monitor the vessel’s movements while it remains at sea.
We judge that that gap in the law needs to be addressed to reflect the difference between powers that could be exercised for customs purposes and powers that could be exercised for immigration purposes. It is an issue if the powers cannot be exercised in the context of a vessel that is considered to be smuggling people rather than contraband, given the risk that organised crime groups, as we are seeing elsewhere, may over time seek to smuggle in a different way. The purpose of the schedule is to be prepared and to have the right legislative framework in place to be able to respond to any such risk in UK territorial waters.
The amendments raise concerns, as the hon. and learned Gentleman, the shadow Minister, and the hon. Member for Paisley and Renfrewshire North have highlighted, about whether the powers could be exercised anywhere on land. For ease, I will simply refer to the part of the schedule that deals with England and Wales, but I assure hon. Members that the same provisions equally apply, in certain other aspects of the schedule, in respect of waters adjacent to the coasts of Scotland and Northern Ireland.
The power to search in paragraph 3 of new schedule 4A only applies to a search of the ship, anyone on the ship and anything on the ship, as the hon. and learned Gentleman highlighted. The Bill does not limit where the power may be exercised in order to ensure that there are no gaps in the power. He was rightly probing and testing as to the intent of the term “elsewhere”. In part, it ensures that there is provision to arrest a person should they jump overboard to evade enforcement officers. Given the nature of the powers that we are seeking to provide, that could be entirely possible, whether they jump into the water or, if the vessel is in more inland waters, on to land. We need to be able to ensure that the provisions are operable in those circumstances. That will not be possible if the provision is limited to a ship or a port. I reassure the Committee that the test in paragraph 3(1) of new schedule 4A to the Immigration Act 1971 connects the exercise of the powers with suspicion regarding the ship. I hope that that connection may be helpful in giving an understanding of what we are trying to get at here.
Keir Starmer: This is in the nature of a probing intervention to ensure that I understand the Minister. The search is constrained by new paragraph 3(2) and I understand the reasoning, but there is no power of arrest in the paragraph; there is only a power of search. So sub-paragraph (8) would not help in the circumstance where someone jumps overboard and needs to be arrested. If someone jumped overboard, they could only be searched. I am probing because I do not quite understand the logic, but it may be that I am not quick enough.
Obviously, the officer would require the ship to be taken to a port. That is connected to the ability to search, as the hon. and learned Gentleman has highlighted. There may be circumstances, for example, in which someone jumps off a ship and is rescued by officers where a search may be appropriate under the exercise of that power. We are trying to cover such circumstances. I recognise that he is fairly seeking to probe on that, and I hope my answer is helpful.
Amendments 239 to 244 would ensure that only the officers specified in the Bill can use the powers, and would remove the protection of officers from personal, criminal and civil liability. I will address those two points separately. The provision permitting powers to be exercised by accompanying officers reflects existing powers under other legislation—most notably, the powers recently considered by the House in the Modern Slavery Act 2015. The extension of powers to assistants also exists in general for those working alongside customs officers under section 8 of the Customs and Excise Management Act 1979.
In my opening comments I sought to explain the arrangement that Border Force officers have responsibility for revenue protection, as well as for the border, and they utilise those powers when they are on board cutters.
The reason why such powers may be given to assistants is not to permit untrained individuals to exercise those powers, but to ensure effective joint working with partner agencies that have at least a basic level of law enforcement training. The measure permits officers from partner organisations who may be working alongside enforcement officers, such as fisheries inspection officers, to assist immigration officers. It is important to emphasise the requirement that such persons must still be supervised.
On the protection of officers against civil and criminal liability, the measure extends only to personal liability; it does not prevent a claim for which an employer may be vicariously liable. When a court considers that officers have acted in good faith and that there were reasonable grounds for their actions, we think it is right from a public policy perspective that they are not held personally liable for carrying out their duties and acting in good faith. There are many other examples of where law enforcement officers are given equivalent protection. I understand that the principle has long been part of English law—prior to this sitting, the Solicitor General and I were discussing that it can be traced back to section 6 of the Constables Protection Act 1750, which I am assured remains in force today. Members may not have anticipated that they would be referring back to certain legislation in Committee, but the Solicitor General has come across the 1750 Act, which I underline.
With those reassurances, I hope that the hon. and learned Member for Holborn and St Pancras will recognise that the measure is not an extension of the law but builds on existing legislative practices and principles. I therefore ask him to reflect on what he fairly said are probing amendments to gain a better sense of our intent and the purpose and nature of schedule 8. I hope that he is minded to withdraw his amendment.
Keir Starmer: I am grateful to the Minister for those assurances. I wonder aloud how long that immunity provision, however long-standing it is, can survive. The idea that people are immune from criminal law in that way is hard to reconcile with later legislation, but that is a much bigger argument than the one we are having now. I beg to ask leave to withdraw the amendment.
This amendment and amendments 110 and 112 are minor drafting changes for consistency with language used elsewhere in the Schedule and have no substantive effect.
See the explanatory statement for amendment 109.
This amendment is a minor drafting change for consistency with the language used in the equivalent provisions for England, Wales and Scotland.
See the explanatory statement for amendment 109.
I will deal with the subsections of clause 38 in turn. Subsection (1) sets out the requirement for public authorities to ensure that each of their workers in customer-facing roles speak fluent English. I know you will have an interest in this, Mr Owen: clause 43 provides specifically that where there are statutory duties in Wales, the requirement includes fluency in English and in the language of heaven. All members of the public who access public services need to be able to understand the information provided and be confident that their needs are thoroughly understood. Ensuring that that is the case will not only create better and more efficient services for taxpayers but will contribute to meeting our manifesto commitments to promote British values, in a positive and appropriate way.
Subsection (2) will require all public authorities to have regard to a code of practice when deciding how to comply with the duty set out in subsection (1). Of course, public authorities will have an opportunity to help shape that code of practice by responding to the open consultation that has been live since 13 October and will run until early December. Copies of the consultation documents have been placed in the Library of the House.
Subsections (3) and (4) will require each public authority to operate a complaints procedure. Citizens must, of course, be able to report their experience of a customer-facing worker not speaking fluent English. Public bodies must consider and respond to those complaints.
Subsections (5), (6) and (7) explain that a worker in the scope of the duty will be someone working under a contract of employment or of apprenticeship with a public authority, as a contractor to do work personally for a public authority, as an agency worker or as a police officer, civil servant or member of the armed forces. Speaking with members of the public must be a “regular and intrinsic part” of their role.
Keir Starmer: There is some concern that such a clause could operate in a discriminatory manner, with complaints and assumptions being made about what is fluent English and who is able to speak fluent English. Will the Solicitor General give an assurance that effective measures will be put in the code or elsewhere to ensure that any potential discriminatory effects and consequences are mitigated or eliminated?
The Solicitor General: I can give the hon. and learned Gentleman several assurances. First, in assessing the potential discriminatory impact of the clause, the consultation process is an important part of allowing Government to understand precisely what the pressures might be. I also assure him that the standards of fluency will be assessed by the employer. The draft code of practice already contains welcome indicative standards for what various qualifications mean in terms of English fluency. Therefore, within the interview and selection process, there will be systems in place that can be deployed to deflect some of the more specious complaints that might be made. There will be an objective standard rather than a somewhat fluid situation, which I am sure he agrees would be wholly unsatisfactory.
Therefore, it follows that employers will have to satisfy themselves of that criterion among the others that they might deploy in seeking persons to fill vacancies for customer-facing jobs. Subsection (9) clarifies that the requirement to speak fluent English applies to existing workers and new members of staff. Finally, subsection (10) provides that the clause does not apply to those who work for public authorities where work is carried out mainly or wholly outside the United Kingdom.
Anne McLaughlin (Glasgow North East) (SNP): Part 7 of the Bill, which comprises clauses 38 to 45, is completely unnecessary and unworkable. It will have negative consequences, whether intended or not; I have some difficulty coming to a conclusion on that one. Perhaps when the Minister speaks later, it will be easier for me to do so. It goes against the wider measures advocated by the Government in the Bill. I will argue those points in turn, but I hope that the Committee will allow common sense to prevail and scrap this part of the Bill.
It is clear that the clauses are unnecessary from the overwhelming lack of evidence from the Government or anyone else that legislation is required. Page 25 of the explanatory notes state that clause 38 is being introduced in order
The question is surely why those professionals have not demanded such legislation themselves. I note the submission from the British Medical Association stating that doctors must already pass the international English language testing system to a level set by the General Medical Council or provide evidence to the equivalent. If the Committee does not agree to scrap part 7 of the Bill, will the Minister provide assurances that it will not result in duplication?
The fact is that part 7 in its entirety is merely a duplication of what any employer asks of an applicant: do they have the skills for the role? I challenge any Member here to tell me whether they know of any firefighters turning up to save our lives who have to
That point is made eloquently by the Royal College of Nursing, which argues against duplicating and undermining the standards being developed by the Nursing and Midwifery Council. That is what it is: an undermining of professional bodies. The fact remains that it is professionals, not Ministers, who have a sophisticated understanding of the level of English required for professional roles. The RCN states:
Far be it from me to argue for lighter-touch regulation to a Tory Government, but the professionals themselves are safeguarding public services, so it is difficult to envisage a Minister, of whatever party, devising a more sophisticated practice-led assessment of language skills than the professional bodies representing the public sector. The Government are fond of saying that they are fixing the roof while the sun is shining, but here they are putting a leaky tin roof in place of one that functions. Like much of the Bill, regardless of our respective opinions on the rights and wrongs, these provisions simply do not make sense.
No one who has worked in the public sector or employed anyone in a public-facing role in the private sector can have any doubt that that is already very much the case, making this part of the Bill completely redundant.
I ask again: who among us has teachers in our constituency who cannot speak English? Their role is to teach English-speaking children. It therefore goes without saying that they must speak English. Language support workers in schools, who interpret for children with no or little English, will have to be able to speak English to be able to interpret. Who among us knows of anyone employed to interpret from English who does not speak English?
I have suggested that part 7 of the Bill will be unworkable, and that is self-evident from a glance at the draft code of practice. It will quite rightly not be permitted to investigate a complaint based on an accent or dialect, which are two of the most noticeable features of someone’s use of language. But frequently, people mistake an accent they are not used to or attuned to for an inability to speak English, when that is not the case.
Miscommunication is a fact of life, as Members will testify. But given that we speak English that, if not quite the Queen’s English, is at least identifiably British, a few slips of grammar in a conversation will generally go unremarked upon. Let us consider the case of an individual who has fluent English to the standard required to fulfil their role but who, due to tiredness or whatever other cause, makes a significant grammatical mistake that then leads to a complaint. If I made such a mistake speaking with my Glaswegian accent, it would probably not lead to a complaint—although you never know—but a recent migrant with, say, a Nigerian accent who made the same mistake for the same reason could find that they were required to have additional training or were being investigated. That would be a colossal waste of public sector time and resources.
I appeal to the Government: if they believe in public sector efficiency, surely it is inconceivable that wasting staff and management time investigating misspoken English is in anyone’s best interests. Part 7 of the Bill puts that millstone around their neck. It also gives the lie to any idea that the Government favour integrating people into British society. If a migrant has made the effort successfully to secure a job in the public sector, working in a public-facing role, the Government should be commending that individual for finding work in a new country, possibly with a new language, and definitely for paying taxes to support our public sector. Neither those individuals nor managers in our public sector should be made to endure the spurious complaints and box-ticking training courses—taking them away from the job that they should be doing—that will follow this unnecessary legislation.
In essence, that is one of the main problems with this part of the Bill—it is unnecessary. It serves no discernible public good not already covered by proper recruitment policies. I fear that the Government are adding red tape to please the red tops and have already wasted countless hours of public sector work putting the requirements into the Bill. I appeal to the Conservative Members who believe in small government, cutting bureaucracy and letting the public sector get on with providing front-line services not to burden it with unnecessary legislation.
Let me tell the Committee what my big fear is. I am desperately worried that the measure will play into the hands of racists and of those who are not instinctively racist, but who are susceptible to racist arguments and fear-mongering. I wonder whether the Government realise the influence that they have over the thoughts of ordinary people. I hear Members tell us repeatedly that immigration is the No. 1 issue on the doorsteps. I also hear Members preface that with “We all know”, but no, we do not all know. I can tell the Committee that in constituencies throughout Scotland it rarely features even in the top 10 issues.
I represent a constituency that is probably the most diverse in Scotland. Poor, working-class communities such as those in Sighthill in my constituency welcomed asylum seekers with open arms—and I mean open arms. I do not just mean community groups, church groups and statutory organisations; I mean ordinary people who opened their hearts to those who needed our help. I am not saying that nobody ever mentions immigration, but I recall only one woman mentioning it during the last election campaign, and I was a very active campaigner. If the constituency with the highest
Incidentally, I do not believe for a minute that Scottish people are naturally any kinder or more welcoming than English people. People are just people, wherever we go in the world, but the one dramatic difference I notice in Scotland is the rhetoric coming from the leadership. The Scottish Government have been overtly welcoming to immigrants and publicly conscious of their duty to help people who require it. They have done everything they can in words and actions to welcome people who are new to the country. Again, that is not a Scottish National party thing. The previous Labour-Lib Dem Administration was much the same.
Our newspapers are also more migrant-friendly than the newspapers down south. Immigration is a big problem in the country where political leaders and the media are largely hostile to migrants, and it is barely mentioned in the country where the opposite is true. Members do not need to take my word for it; they can watch the BBC programme “Question Time”, because it is notable that almost every episode held down south has a question about immigration, but we rarely get that when it is held in Scotland. There is clearly a correlation between the attitudes of political leaders and the media and public opinion.
I will wait to hear from the Solicitor General before deciding if the negative consequences of this part of the Bill were, to my mind, intended or not. What I will do, however, is tell the Committee how it looks to me right now. It looks like the Government are pandering to the right-wing press that dishes out anti-immigrant propaganda, and it looks like the reason for doing that is to further entrench opinion against immigrants. In other words, this looks like ideologically-driven, prejudicial and inflammatory nonsense. As I said, I live in hope that the Solicitor General will disabuse me of that view, and I will keep an open mind when hearing what he has to say. We know that discrimination has increased following the trial of the right-to-rent provisions—[ Interruption. ]
Anne McLaughlin: Thank you, Mr Owen. Discrimination has increased following the trial of the right-to-rent provisions, which has led to people being judged not to look or sound British and to their having increased difficulty finding accommodation. The exact same prejudice will now face those working in the public sector, with people who sound as if they are not from Britain at risk of spurious complaints and victimisation.
Our public sector workers are doing increasingly difficult work, thanks to the Government’s cuts agenda. They are often working with fewer resources and taking on more responsibilities. It does not take a genius to see that this will be stressful for the worker and for those using the service, nor does it take a particularly high IQ to imagine that a disgruntled and stressed-out member of the public may take out their frustration with their situation on a member of staff. If that person is obviously an immigrant, there is a risk that complaints will be
I have seen it myself. I have been in a GP surgery where I heard people muttering about the African receptionist—“Could they not get somebody who can speak English?”—when she was speaking perfectly good English, since it was her first language, as it is for many people coming to this country. All that was different about her was the colour of her skin and her accent. Now those racist mutterings can be turned into formal complaints—[ Interruption. ] Yes, they can. The Government are legitimising that racism instead of tackling it head on. If I am wrong about the intentions, will the Minister tell us if and how he will assess the implementation of this part of the Bill? If he does not intend this part of the Bill to have such consequences, and if he does in fact care but does not believe that my fears are founded, will he at least consider the possibility that I might be right, assess this at a later stage and be willing to review it if necessary?
Part 7 makes it much more difficult for genuine migrants to integrate. It places a ludicrous burden on public agencies at a time when the Government are asking them to tighten their belts. It punishes those who have come here legally and are trying to get on and contribute to this society. Part 7 legitimises the rantings of racists, who will say, “Well, there is obviously a problem or the Government wouldn’t have to have a law to stop it.” In fact, it goes against much of what people believe the Tory party stands for—not me, incidentally, but some people. Part 7 certainly goes against the principles of the Scottish National party, and I urge all Members to reject clauses 38 to 45.
The Solicitor General: I would like to say that this debate has created more light than heat, but I am afraid that I cannot do so. With the greatest of respect to the hon. Lady, people such as the receptionist she mentioned will be protected by these provisions, safe in the knowledge that they have fulfilled the criteria set out in the code of practice. They have nothing to fear from people who, through racism or prejudice, may wish to make specious claims. I wholly reject her prospectus.
Anne McLaughlin: If the Minister is saying that that receptionist will be protected against spurious complaints, does he mean that nobody is allowed to make a spurious complaint? If so, will it be decided that a complaint is spurious before the receptionist is informed? The stress levels suffered by someone who has had an unlawful complaint made against them are just as bad as they would be if the complaint were founded.
The Solicitor General: I am sorry, but the hon. Lady acknowledged that several parts of the public sector have basic proficiency requirements in place. I am afraid that all of us in a public sector role, including everyone in this building and elsewhere, will be the subject of complaints from time to time. Some of those complaints might be wholly justified; others will not be justified. I do not accept for one minute that these provisions will increase the culture of fear that she has colourfully, but wholly erroneously, painted. She is right to say that some parts of the public sector have minimum standards of English for their staff. The provision underpins and
Anne McLaughlin: I thank the Minister for giving way—I appreciate it. Which parts of the public sector employ people who do not speak English in a public-facing role? I have listed all the possibilities, but I have never experienced it, and I have seen no evidence that anyone here has experienced it.
The Solicitor General: I am grateful to the hon. Lady for sharing her anecdotal experiences, but the Home Office has done pre-consultation modelling, based on the proportion of over-16s in employment in the public administration, education and healthcare sectors according to 2011 census data—those are important, objective, statutory data obtained from the British population. According to that modelling, about 3.6 million employees are within the scope of the proposed duty and about 1.5 million employees in Great Britain, excluding Northern Ireland, are subject to English language standards, so an extra 2.1 million employees will be newly affected by the duty. We anticipate that between a low of 8,500 workers and a high of 25,000 workers may not have the required standards of English fluency. There is objective evidence upon which we can base this policy.
The policy is not designed suddenly to change the game or somehow create a wholly new structure that will alter the balance and change societal attitudes towards people who have a heavy accent. I include myself in that—I know the hon. Lady is as proud of her accent as I am proud of mine. We are seeking to standardise and enhance the position of people who have come to this country to work and who might have a different ethnicity or background. They will be employed under the same objective criteria that will be applied to everybody else in the public sector.
The Solicitor General: I will give way in a moment, but first I want to read a highlighted extract from the draft code of practice consultation relating to complaints. I hope that it will help the hon. Lady. Paragraph 4.5 says:
“Public authorities are not obliged by this Code of Practice to respond to complaints that are vexatious, oppressive, threatening or abusive. These should be given their usual dictionary meaning and could be defined as those complaints that are without foundation and/or which are intended to result in harsh or wrongful treatment of the person referred to in the complaint. In these types of circumstances a complaint should not be allowed to continue.”
Keir Starmer: In so far as the measures extend the existing duties on public authorities to consider the requirement in the first place, they do not go much further than the existing position, but I think that the hon. Lady is pointing at the complaints procedure, which the Minister just touched on. Will he assure the Committee that the only complaints that the provision is intended to open up are complaints against the public authority for failing to carry out its duties, and not
That means a complaint against the public authority for having breached that duty. There are no sanctions in part 7 that could be applied directly to staff. As I said, it is a duty for the public authority.
Keir Starmer: This is an important point. Can the Minister write to us on that specific issue? It also arises from clause 41(2)(c), according to my reading; I think that he would provide assurance if he wrote to the Committee—to me and other hon. Members—to say that that is the intention of the complaints procedure. One can see the scope otherwise for concern about complaints.
The Solicitor General: I understand entirely, and I am happy to do so. I assure the hon. and learned Gentleman and any Committee members concerned about consequences for staff that dismissal would be a matter extremely far down the line in these procedures. We are talking about improving systems. That does not entail an ad hominem attack on individuals; it is about the public authority and any perceived failure on its part.
Keir Starmer: I am grateful for the assurance about frivolous and other vexatious complaints. I know from having 9,000 staff of my own that what causes great anxiety is the fact that a complaint has been made to the individual, even if some weeks or months down the line it might be ruled out. If a number of complaints are made about a particular member of staff, that will increase anxiety hugely. The greater the clarity that the Minister can give here, the better. For a member of staff, simply knowing that a complaint might be knocked out in three months does not affect the anxiety that they feel when doing in their job.
On the question of bureaucracy, the measures take a minimalist approach. The code of practice will guide public authorities to align their actions regarding the new duty with existing practice. We expect a minimal expansion to existing procedures to suffice. Our open consultation will allow any concerns about bureaucracy to be raised and taken into account.
The Solicitor General: The hon. Lady has mentioned a body that operates its own minimum standards. I envisage that where organisations are already doing that work, it will be a fairly easy task for them to satisfy a code of practice, but again, I would be interested to hear what they have to say as part of the consultation. I am sure that the intention is for dovetailing in any expansion of the duty, so that we standardise it across the whole public sector, thanking those particular outliers for being proactive in the area.
Keir Starmer: Again, this is by way of seeking assurance. This discussion is in the context of an Immigration Bill, but the measures will cover all individuals. Can the Minister give an assurance that careful consideration will be given to how the measures apply to individuals with any kind of learning or speech difficulty, regardless of background, ethnicity and so on? There is the potential for impact on people who fall into those categories. I know that that is not the intention, but we would gratefully receive a high level of assurance.
The Solicitor General: I am happy to give that. From my own understanding and experience of such issues, I am extremely keen to ensure that people who are fluent but who might, due to disability, express themselves slightly differently, are not discriminated against in any way.
On the question of setting a single standard, again, to enlarge the point that I was making, because the public sector has such a broad range of customer-facing roles, whether they be heart surgeons or parking enforcement officers, different particular standards will be appropriate. Therefore, the code will guide public authorities to set a standard that is proportionate to the nature of the spoken interaction that is an integral part of each role. To reinforce the point that I just made to the hon. and learned Gentleman about discrimination, public authorities, like all employers, are prohibited from discriminating against members of staff and job applicants by the terms of the Equality Act 2010, under which disability is a protected characteristic. Of course that will be relevant to individuals with a speech impediment.
Anne McLaughlin: I appreciate the Minister letting me butt in so often. He has said that there is a public duty under equalities legislation not to discriminate against a potential employee, but discrimination happens and we know that it happens. It is far harder for someone to find a job if they are black; basically, it is much more difficult. The Committee has heard most of my fears, but my fear on this is that is that, just as landlords feel that they will discriminate whether they really want to or not, these measures will make employers more fearful of employing somebody who might get complaints against them because of language—not because they cannot speak the language fluently, but because they sound and look different. It will make it even harder for people to find employment. All the equalities legislation in the world is only useful if people know how to use it and have the resources to use it.
The Solicitor General: I hear the hon. Lady, but I must remind her that we are talking about public authorities, which have had to, quite rightly, adapt their practices to take into account legislation such as the Equality Act 2010,
Keir Starmer: I apologise for adding to the shopping list of assurances, but it is done, I hope, in the right spirit and with concern that is shared across the House. This problem might have been addressed, but there must be some public authorities that use sign language for some of those deemed to be customers or service users. Those fluent in sign language may not in fact be able to speak fluent English. Perhaps there is an obvious answer to this—if there is, I apologise—but the words “speaks fluent English” in clause 38(8) cause me some concern. There may be an easy reassurance. If there is, I will be assured.
The Solicitor General: I am grateful to the hon. and learned Gentleman for raising an issue in which I take a personal interest—the use of British sign language and other means for deaf people to participate in all aspects of our mainstream life. To parenthesise for a moment, I am sure that he would be interested in the work that I am doing to explore why deaf people cannot serve on juries, for example. It seems to me wholly ridiculous, but that is the position at the moment. Perhaps we can talk about that offline.
A British sign language interpreter is of course arguably a reasonable adjustment that is provided under an employer’s duty towards staff with a disability under the Equality Act 2010. That would be part and parcel of a person’s work; so to use it as a basis for suggesting lack of fluency would be wholly wrong and self-defeating. It is important to remember that people with disabilities, with reasonable adjustments, increasingly form part of the mainstream workforce. The provision is not designed to cut across that.
I think we all benefit from the fact that people with different ethnic origins work in our public services. Whatever they sound like and wherever they are from we welcome them all; but it is important—and they would agree—that we make sure there is a basic standard, to ensure that all sections of society have the fullest confidence in our public services. The measure goes a long way to protect our public servants.
Paul Blomfield (Sheffield Central) (Lab): I concur with the point that the Solicitor General makes, but I did not necessarily recognise the figures he gave earlier as a description of the problem. They were census data, which did not necessarily relate to the issue. However, let us assume that there is a problem. Is the Minister not concerned that what he wants to do will be undermined by the cuts of the order of 30% in the adult skills budget since 2010, which have had a direct impact on the courses in English for speakers of other languages that give people precisely the skills he is looking for? In the spirit of his proposals will he make representations to his colleagues in the Department for Business, Innovation and Skills to increase that budget?
The Solicitor General: At this stage what I will say is that those points need to be fed into the consultation, so that in the code of practice we get objective standards for fluency absolutely right. I note from the code of practice that there is a helpful table in the draft suggesting the stages of proficiency that can be equated with various qualifications, such as GCSEs, GCE A-levels or NQFs.
The hon. Gentleman makes an interesting point, which I would argue needs further discussion. I hope that if, when the code of practice is finalised, the issue he raises is causing problems, that will be reflected in a system that, while still objective, will include an understanding that fluency can sometimes be measured in a non-academic way, which would therefore need to be built into any assessment such as a written test or other proficiency test conducted by the employer or prospective employer when interviewing candidates for a job. That could be an objective standard.
Anne McLaughlin: Is not that the same as allowing the employers to follow their current recruitment processes and make the judgment themselves? If things are going to be that vague, why do not we just continue to allow employers to make the assessment themselves?
The Solicitor General: What we are doing is making sure that the practice spreads. Indeed, some employers do it already; but we think that the duty would spread it throughout the public service. The hon. Lady may well be right; normal assessment processes may be perfectly sufficient. Examples might be a spoken interview or the choice to require an applicant to answer a detailed interview question in English or Welsh, or to possess a relevant qualification, or pass a specifically tailored competency test. It is not a matter of heavy prescription.
The Opposition cannot have it both ways. On one level, they are telling us that they are concerned that the proposals will be too bureaucratic, and on another, when I suggest that this is in fact, more flexible, they ask what the point is. There is a point: it is all about spreading best practice through all levels of public service.
To respond to the point made by the hon. Member for Sheffield Central about ESOL, ESOL courses are more than just about fluency in English. They go beyond that, so the requirement to have an ESOL qualification will often not be necessary in the context of applications for jobs in the public sector. Although he makes an interesting and proper point, it is not quite on all fours with the particular requirements that this code of practice and statutory duty will involve.
The Solicitor General: The clause sets out which public authorities must ensure that each of their workers in customer-facing roles speak fluent English or, in Wales, fluent English or Welsh. Hon. Members will understand that it is important to define the scope of the duty as broadly as possible so that we make sure that all members of the public receive advice, help and support in fluent English or Welsh, regardless of the nature of the public service.
Subsection (1) defines public authorities as any organisation that carries out functions of a public nature. Subsection (2) clarifies that that does not include other bodies that carry out functions on behalf of a public authority. For example, it excludes a private company that appears to the customer to be part of the local council’s services even though the service is actually provided by an independent organisation through a contract with the local authority. Subsections (3) and (4) clarify that this duty will apply in Scotland only if a public authority exercises functions which relate to a reserved matter.
Subsection (5) limits the scope of the bodies included in this duty very slightly to exclude the security services, the Secret Intelligence Service and the Government Communications Headquarters. Subsection (6) provides that a relevant Minister may add, modify or remove the name of a body in relation to this list. The term “a relevant Minister” is defined in clause 44 to include either the Secretary of State or the Chancellor of the Duchy of Lancaster. The regulation-making power to amend the list of public authorities must be done in accordance with the provisions that relate to regulations in clause 53.
That brings me to Government amendments 37 to 39. These technical amendments ensure that clause 53 applies to regulations made by either the Secretary of State or the Chancellor of the Duchy of Lancaster under part 7.
The Solicitor General: Clause 40 provides a power to make regulations to expand the meaning of a person in respect of whom this duty applies. Should the relevant Minister—the Minister of the Cabinet Office or the Chancellor of the Duchy of Lancaster—choose to make such regulations, the duty would apply to customer-facing staff of contractors and subcontractors delivering a public service through an arrangement with a public authority. To comply with the statutory duty in clause 38, public authorities need to have regard to the code of practice to ensure that the customer-facing staff of these organisations, as well as their own directly engaged staff, meet the language standard.
Public authorities need to make sure, first, that the standard of fluency applied is proportionate to the nature of each customer-facing role; and secondly that their complaints process allows citizens to report their experience of a customer-facing worker employed by such organisations who is not speaking fluent English. Hon. Members will be aware from our previous debate about the consultation that is now live that respondents are asked explicitly for their views on the impact of expanding the scope of the duty to the staff of private and third-sector suppliers. We will publish those views as part of the Government response to the consultation. However, any expansion of this duty to apply to the staff of private and third-sector providers of services will involve separate consultation before any regulations are made.
‘(4) This Part does not apply to Scotland.”
I have set out why I do not want this measure to be part of United Kingdom legislation, so this is really just to make the argument that if the rest of the United Kingdom does, indeed, want it—I have set out the different experiences of Members in the different countries—then it should not stand in Scotland.
The Solicitor General: I gently remind the hon. Lady that the title of clause 43 is “Application of Part to Wales”. I see the point she is making, so I do not want to make too lawyerly a point, but the provision relates to Wales rather than Scotland.
The purpose of the hon. Lady’s amendment is to exclude Scotland from the whole of part 7. Subsections (3) and (4) of clause 39—the governing clause of this part of the Bill—provide that the requirement for customer-facing public sector workers to speak fluent English applies in Scotland only to the extent that a public authority exercises functions related to a reserved matter.
Hon. Members may not be aware of a letter sent on 3 November from the Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights in the Scottish Government, Mr Alex Neil, to my right hon. Friend the Minister for the Cabinet Office and Paymaster General. In that letter, Mr Neil acknowledges that this
I am grateful to Mr Neil and his team for the work that has been done with members of the British Government and the discussions with Scottish Government officials that have resulted in this proposal. I am also grateful to him for instructing his officials to ensure that the Cabinet Office received every support in understanding the landscape of the reserve public sector in Scotland. Such lines of contact have been established, and indeed the consultation continues. For all those reasons, I very much hope that the hon. Member for Glasgow North East will withdraw the amendment.
The Solicitor General: As alluded to in the previous debate, clause 43 sets out how part 7 will apply to public authorities exercising functions of a public nature in Wales. I am grateful to the Clerk to the Committee for confirming my understanding that the clause title is not an amendable part of the Bill but an indicative description of the clause.
The arrangements relating to Wales are subject to a legislative consent motion in the National Assembly for Wales. Subsection (1) makes it clear that a public authority
Subsections (2) and (3) make it explicit that in respect of such public authorities any reference to spoken English in that part of the legislation should be read as references to spoken Welsh or English. Subject to the approval of the National Assembly, officials would work closely with the Welsh Language Commissioner to ensure that the requirements of the duty are in line with existing standards in Welsh, set out in the Welsh Language (Wales) Measure 2011.
James Brokenshire: The clause inserts a new section in the Immigration Act 2014 to provide a power to impose a charge on employers sponsoring non-European economic area skilled migrants. In addition, it contains provision for regulations to be made regarding the charge. The immigration skills charge will help to address current and projected skills needs in the UK economy and contribute to reducing net migration. The intention behind the charge is to encourage employers to think differently about their recruitment so that, where possible, they recruit and train up resident workers.
I represent the University of Sheffield, which is involved in apprenticeship training. As I understand the proposals, the money raised from the charge will go to the Consolidated Fund to assist in addressing the skills gap in the UK. The university’s Advanced Manufacturing Research Centre, which has been held up as a model by the Government, is involved in higher apprenticeship training, much of which is undertaken by academics who are recruited through the tier 2 route. It appears nonsensical to make a levy on the University of Sheffield and other universities and educational institutions for recruiting tier 2 workers who are actively involved in filling the skills gap. What does the Minister think about that issue?
Similarly, we have received representations from the British Medical Association and the Royal College of Nursing about the position in the health service where, because of skills shortages, the Government and the NHS are actively recruiting from abroad. Given the financial pressures on the NHS, does it make sense to levy a skills charge on it? Perhaps that is not the Government’s intent and I have misunderstood the provisions of the Bill, in which case I will be grateful if the Minister can clarify the position on both those points.
James Brokenshire: Perhaps I should underline that employers over time should reduce their demand for migrant labour. We recognise that many employers invest in training, but throughout the economy investment in training has been declining over 20 years and use of tier 2 visas is up by 30% if we compare 2010 with 2014. We want to encourage employers to invest in upskilling our resident work force and reduce reliance on migrant labour. The immigration skills charge will fund training of the resident work force, including apprenticeships.
The hon. Gentleman’s argument is whether in principle there should be some exemptions. That is a question that we have asked the Migration Advisory Committee, which has been asked to advise on the charge’s impact on different employers. The Government will consider the MAC’s advice in due course; we expect to receive its full advice next month. The MAC will make recommendations, including on the scope and level of the charge. We are setting out the principle. We have asked the MAC to consider some of these details, and we will reflect on its recommendations and implementation.
James Brokenshire: Clause 47 provides new powers to make regulations to charge fees in respect of passport and travel document functions. The measures in the clause focus on increasing the transparency of how passport fees are set.
‘(1) Schedule (Private hire vehicles etc) (private hire vehicles etc) has effect.
(2) The Secretary of State may by regulations make provision which—
(a) has a similar effect to the amendments made by Schedule (Private hire vehicles etc), and
(b) applies in relation to Scotland or Northern Ireland.
(3) Regulations under subsection (2) may—
(a) amend, repeal or revoke any enactment;
(b) confer functions on any person.
(4) Regulations under subsection (2) may not confer functions on—
(a) the Scottish Ministers,
(b) the First Minister and deputy First Minister in Northern Ireland,
(c) a Northern Ireland Minister, or
(d) a Northern Ireland department.
(5) In this section “enactment” includes—
(a) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;
(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;
(c) an enactment contained in, or in an instrument made under, Northern Ireland legislation.”—(James Brokenshire.)
This new clause inserts a new Schedule NS1 which amends the licensing regimes for taxis and private hire vehicles in England and Wales. It also contains a regulation-making power to amend the legislation in Scotland and Northern Ireland to equivalent effect as that Schedule .
James Brokenshire: We move to new clauses, having considered the main substantive provisions of the Bill. New clause 14 requires immigration checks and continuing compliance with immigration laws as part of the existing licensing regime for taxis and private hire vehicles. It does so by adapting existing provisions for private hire vehicles in London in the Private Hire Vehicles (London) Act 1998 and for taxis and private hire vehicles in the rest of England and Wales in the Local Government (Miscellaneous Provisions) Act 1976.
The new clause seeks to prevent illegal migrants and migrants whose status does not permit them to work from holding taxi and private hire driver and operator licences. It is important to note that, because the majority of drivers are self-employed, they are not subject to existing right to work checks. In our judgment, that leaves scope for the sector to be exploited by illegal workers.
Licensing authorities already conduct checks to determine whether someone is a fit and proper person to hold a driver or operator licence. However, a licensing authority has discretion as to many of the checks that it undertakes to satisfy itself that someone passes the fit and proper person test. Many licensing authorities make immigration checks, but they are advisory at present. The new clause will make immigration checks mandatory and embed immigration safeguards in the existing licensing regime.
New clause 14 gives effect to new schedule 1, which amends the Private Hire Vehicles (London) Act 1998 for private hire vehicles in London and the Local Government (Miscellaneous Provisions) Act 1976 in respect of taxis and private hire vehicles in the rest of England and Wales. The new provisions also make relevant changes so that the same measures can be implemented in London, where the taxi licensing regime is slightly different, by amending the Metropolitan Public Carriage Act 1869.
We are in the process of consulting with the Northern Ireland Executive and the Scottish Government with a view to making similar changes to the licensing legislation in Scotland and Northern Ireland in the Bill or, if that is not possible, by regulations, for which provision is made in the new clause.
I will now comment in more depth on new schedule 1, the main meat of the provisions. On the changes to the Metropolitan Public Carriage Act 1869 for London, first, the provision ensures that where someone’s immigration leave is time-limited to less than the statutory length for a driver or operator licence, the licence will be issued for a duration that does not exceed the applicant’s period of leave. If someone has so-called section 3C
Secondly, if someone is disqualified from continuing to hold a driver or operator licence for immigration reasons, they must return their licence, any copy and their driver’s badge to the licensing authority. Someone who fails to return their licence within seven days without reasonable cause will be committing an offence and, on summary conviction, liable to a fine not exceeding level 3 on the standard scale and, in the case of a continuing offence, a daily fine for each day they fail to return the documents after conviction. Thirdly, the grounds for disqualification—this is for someone who already holds a licence—will include that someone has no lawful status in the UK, or has no right to undertake the work in question.
The Local Government (Miscellaneous Provisions) Act 1976 and the Private Hire Vehicles (London) Act 1998 are similarly amended for operator and driver licences. In addition, the new schedule provides that a licence must not be granted under those Acts to someone who is disqualified by their immigration status. The licensing authority must have regard to any guidance issued by the Secretary of State in making a decision about someone’s immigration status. Importantly, the new schedule also specifies that the conviction of immigration offences and the requirement to pay penalties since the licence was issued are grounds to revoke a driver or operator licence. That is our approach, which intends to catch operators who may seek to engage people who are in the country unlawfully.
Sarah Champion (Rotherham) (Lab): I would like further clarification from the Minister; I did not want to intervene in case he was coming on to this. Will he talk us through the logistics of how the legislation will be enforced?
I welcome the recommendations. I have not gone through the details of them, but it seems that currently different local authorities have different legislation and rules, so there can be confusion about who is responsible for enforcement of the local authority recommendations when people cross the border. Will the Minister talk a little more about how the legislation will be enforced and who will be responsible? He mentioned a seven-day period and said that the local authority would then have to enforce this. How does the local authority find out about that? What will happen with on-the-ground resources to enable the local authority to act? What happens if someone is in violation—will the Home Office or the local authority be responsible for that? I ask for practical ways in which the legislation will work.
James Brokenshire: I am grateful to the hon. Lady for her probing questions about enforcement. It is worth underlining that some licensing authorities are already doing basic right to work checks. That is what we are seeking to embed within the overall licensing regime.
Licensing authorities, under the provisions, will not be able to issue a licence to someone who has no lawful status and no right to work. That means they must be satisfied that an applicant has the right to live and work in the UK before granting someone a licence—that is to
Where someone’s permission to remain in the UK is time-limited, authorities will know that because it will be clear from the applicant’s immigration status document. Authorities should not issue a licence for any period exceeding that duration. Furthermore, if the licensing authority is provided with information about other immigration law breaches by the applicant, it should consider those as part of the application process and, as the hon. Lady will understand, the fit and proper purpose test that authorities are already applying.
Licensing authorities may receive information from many sources that lead them to review someone’s eligibility to hold a licence, including immigration enforcement. The new clause makes it clear that if the licensing authority is informed that the holder of a driver or operator licence has breached immigration laws, those are grounds to revoke a licence. If information comes to immigration enforcement, they may then notify a local authority that evidence has been presented that may trigger revocation.
The hon. Lady is right to highlight the issue of who has responsibility. In England and Wales, district and unitary councils—referred to as the licensing authorities—have responsibility for ensuring that the public travel in safe and well maintained vehicles driven by competent drivers, as well as providing a fair and reasonable service for the taxi and private hire vehicle trade. Through that mechanism, these provisions will be effectively embedded within the existing structure. That is an important point.
As the hon. Lady may know, provisions in the Deregulation Act 2015 set a standard length for all taxi and private hire vehicle driver licences. The guidance and the provisions of the new clause will ensure that a consistent approach is taken by all licensing authorities to the checks undertaken. That assessment will effectively prevent abuse within the taxi or private hire licensed arena.
We have concerns—indeed, immigration enforcement will be conducting some targeted enforcement around this activity, to further develop our understanding of the challenges—that the self-employed nature of most drivers means they are potentially not subject to existing right to work checks, leaving scope for the sector to be exploited by people intending to work illegally. That is an issue not simply of ensuring the immigration provisions are applied appropriately and firmly, but of how the fit and proper purpose test applies. If someone is not in this country lawfully, does that imply there may be other breaches or issues? Indeed, does that call into question someone’s insurance and any conditions that apply to it? It is about a culture of ensuring high standards within the sector.
It is appropriate for me to underline that the requirements also apply to app-based operators and drivers. They are required to hold the same licences and, accordingly, the
In developing the proposals we consulted licensing authorities in England and Wales that between them account for about 60% of all licences issues. Many respondents—62%—reported abuse of the licensing regime. The most commonly cited concern was document fraud, including identity documents and MOT and other certificates from overseas. Immigration enforcement agencies also report illegal working in the sector. They work closely with Transport for London to identify and apprehend illegal workers. Regular enforcement activity is undertaken in Scotland, and in Edinburgh, for example, immigration offenders working as drivers are apprehended in operations every month.
This is a genuine issue. We are not trying to use a great big sledgehammer, but to put some in place basic requirements for right to work checks, as is proportionate. When people have been convicted of immigration offences, that fact should be equally relevant in the context of, for example, whether they hold an operator licence, to make sure that the standards on who is a fit and proper person are properly applied. That is the intention behind the measures.
Sarah Champion: I would like just a little more information. At the moment, if someone fails the fit and proper person test they can appeal through a magistrates court. Is it correct that under these measures that right would go and it would become a straight immigration issue?
“In section 62(1) (suspension and revocation of operators’ licences) before the “or”…insert…“…that the operator has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty”.
The point is that that will be a matter of established fact. The terms are further defined in proposed new section 79B of the 1976 Act, which is inserted by the new schedule, and defines immigration offences and immigration penalties. The measures will be embedded within the overall framework of the licensing arrangements. If the relevant local authority were, for example, to seek to revoke or suspend a licence, a legal process would no doubt be followed. The point is that it would be made clear whether an operator had been subject to these specific measures, because of the nature of the definitions.
The fit and proper person test is built in. It takes place when someone is applying for a licence. Immigration offences are a clear factor that will have to be weighed in any determination of whether someone is a fit and proper person. If someone does not have the right to be here, the new provisions make it clear that they should not be considered a fit and proper person. That is how we are embedding the measures within the existing process. We believe their operation can be effected smoothly. We will issue guidance, as I have already indicated, to assist local authorities in the implementation of the provisions.
This is a question of raising standards, to ensure that abuse does not take place within the sector. These are positive and important new provisions, which will see immigration enforcement agencies working with local authorities—something that, as I have indicated during our discussions, I strongly support. If we can get our activities embedded well, in places where immigration enforcement officers may come across intelligence and information, we can work smartly with other agencies such as local authorities to raise standards more broadly and root out abuse and rogue operators. The measures are important and distinct, and will, we hope, not only deal with immigration offending and people who are in the country unlawfully and engaging in employment or contracts for services, but raise standards in the sector more generally.
‘(1) Section 20 of the Immigration and Asylum Act 1999 (supply of information to Secretary of State) is amended in accordance with subsections (2) to (10).
(2) For the heading substitute “Power to supply information etc to Secretary of State”.
(3) In subsection (1) for paragraphs (a) to (f) substitute—
“(a) a public authority, or
(b) any specified person, for purposes specified in relation to that person.”
(4) In subsection (1A) in each of paragraphs (a) and (b) for “a person listed in subsection (1) or someone acting on his behalf” substitute “a public authority or someone acting on behalf of a public authority”.
(5) After subsection (1A) insert—
“(1B) This section does not apply to—
(a) information which is held by the Crown Prosecution Service, or
(b) a document or article which comes into the possession of, or is discovered by, the Crown Prosecution Service, or someone acting on behalf of the Crown Prosecution Service,
if section 40 of the UK Borders Act 2007 applies to the information, document or article.”
(6) After subsection (2A) insert—
“(2B) Subsection (2A)(a) does not affect any other power of the Secretary of State to retain a document or article.”
(7) In subsection (3) after paragraph (d) insert—
“(da) anything else that is done in connection with the exercise of a function under any of the Immigration Acts;”.
(8) After subsection (3) insert—
“(3A) “Public authority” means a person with functions of a public nature but does not include—
(a) Her Majesty’s Revenue and Customs,
(b) either House of Parliament or a person exercising functions in connection with proceedings in Parliament,
(c) the Scottish Parliament or a person exercising functions in connection with proceedings in the Scottish Parliament,
(d) the National Assembly for Wales or a person exercising functions in connection with proceedings in that Assembly, or
(e) the Northern Ireland Assembly or a person exercising functions in connection with proceedings in that Assembly.”
(9) Omit subsection (4).
(10) After subsection (6) insert—
“(7) Nothing in this section authorises information, a document or an article to be supplied if to do so would contravene a restriction on the disclosure of information (however imposed).”
(11) After section 20 of the Immigration and Asylum Act 1999 insert—
“20A Duty to supply nationality documents to Secretary of State
(1) This section applies to a nationality document which the Secretary of State has reasonable grounds for believing is lawfully in the possession of a person listed in Schedule A1.
(2) The Secretary of State may direct the person to supply the document to the Secretary of State if the Secretary of State suspects that—
(a) a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and
(b) the document may facilitate the removal.
(3) A person to whom a direction is given must, as soon as is practicable, supply the document to the Secretary of State.
(4) If the document was originally created in hard copy form and the person possesses the original document, it must be supplied to the Secretary of State unless it is required by the person for the performance of any of the person’s functions.
(5) If the original document is required by the person for the performance of any of the person’s functions—
(a) the person must, as soon as is practicable, supply a copy of the document to the Secretary of State, and
(b) if subsequently the person no longer requires the original document, the person must supply it to the Secretary of State as soon as is practicable after it is no longer required.
(6) Subsection (5)(b) does not apply if the Secretary of State notifies the person that the original document is no longer required.
(7) If subsection (5) applies the person may make a copy of the original document before supplying it to the Secretary of State.
(8) The Secretary of State may retain a nationality document supplied under this section while the Secretary of State suspects that—
(a) a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and
(b) retention of the document may facilitate the removal.
(9) Subsection (8) does not affect any other power of the Secretary of State to retain a document.
(10) The Secretary of State may dispose of a nationality document supplied under this section in such manner as the Secretary of State thinks appropriate.
(11) Nothing in this section authorises or requires a document to be supplied if to do so would contravene a restriction on the disclosure of information (however imposed).
(12) The Secretary of State may by regulations amend Schedule A1 so as to add, modify or remove a reference to a person or description of person.
(13) Regulations under subsection (12) may not amend Schedule A1 so as to apply this section to—
(a) either House of Parliament or a person exercising functions in connection with proceedings in Parliament,
(b) the Scottish Parliament or a person exercising functions in connection with proceedings in the Scottish Parliament,
(c) the National Assembly for Wales or a person exercising functions in connection with proceedings in that Assembly, or
(d) the Northern Ireland Assembly or a person exercising functions in connection with proceedings in that Assembly.
(14) In this section “nationality document” means a document which might—
(a) establish a person’s identity, nationality or citizenship, or
(b) indicate the place from which a person has travelled to the United Kingdom or to which a person is proposing to go.”
(12) In section 166 of the Immigration and Asylum Act 1999 (regulations and orders)—
(a) after subsection (5) insert—
“(5A) No regulations under section 20A(12) which amend Schedule A1 so as to—
(a) add a reference to a person or description of person, or
(b) modify a reference to a person or description of person otherwise than in consequence of a change of name or transfer of functions,
are to be made unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.”, and
(b) in subsection (6), before the “or” at the end of paragraph (a) insert—
“(ab) under section 20A(12) and which falls within subsection (5A),”.’
(13) Before Schedule 1 to the Immigration and Asylum Act 1999 insert the Schedule A1 set out in Schedule (Duty to supply nationality documents to Secretary of State: persons to whom duty applies).”—( The Solicitor General .)
This amendment expands the information gateway in section 20 of the Immigration and Asylum Act 1999 for the voluntary supply of information to the Secretary of State for immigration purposes. It also places a duty on authorities listed in new Schedule A1 to that Act (see NS2) to supply nationality documents to the Secretary of State where directed to do so.
The Solicitor General: The new clause expands the existing information gateway in section 20 of the Immigration and Asylum Act 1999 for the voluntary supply of information to the Secretary of State for immigration purposes. It also places a duty on the authorities listed in new schedule 2 to supply nationality documents to the Secretary of State where directed to do so.
At the moment, in addition to common-law data-sharing powers, section 20 of the 1999 Act allows for information and articles from specified public authorities, such as the police and the National Crime Agency, to be supplied to the Secretary of State for immigration purposes. We would like to ensure that other public authorities that may find themselves in possession of information or documents that may be used for immigration purposes have clear statutory authority to pass those to the Home Office. The new clause will ensure that any public authority, other than those expressly excluded, may provide information and documents to the Secretary of State for immigration purposes, should it wish to do so.
We also want the Secretary of State to be able to require the provision of nationality documents that are lawfully in the possession of specified public authorities. That power would be exercisable where the Secretary of State suspects that a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts and that the document may facilitate the removal.
I want to make it abundantly clear that the new clause does not require the listed bodies to collect data or information on behalf of the Secretary of State or to seize documents from people, as it applies only where the Secretary of State has reasonable grounds for believing that a document is already lawfully in a body’s possession—that is to say, that it holds the document for the purposes of its functions.
To give an example, a person may be arrested for overstaying his visa in the UK. Immigration officers search his home for a passport or other documentation that will help with obtaining an emergency travel document from his embassy. They do not find it, but they do discover a letter to him from his local council. An immigration officer can then contact the council and ask whether it has taken a copy of that person’s passport or ID card, or a record of the number. Under the new powers, if the council has such a document, the immigration officer may direct that it is sent to the relevant immigration team. If the council confirms that it does not have such a document, there is no further action for it to take.
In a nutshell, we believe that it is important that the public sector works together to achieve effective immigration control. For those reasons, I ask that new clause 15 and new schedule 2 stand part of the Bill.
‘(1) Section 26B(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (interpretation of Part 3) is amended as follows.
(2) In the definition of “immigration offence”—
(a) after “means” insert “— (a)”, and
(b) at the end of paragraph (a) insert “, or
(b) (insofar as it is not an offence within paragraph (a)) an offence under the Immigration Acts or in relation to which a power of arrest is conferred on an immigration officer by the Immigration Acts;”.
(3) In the definition of “immigration enforcement offence”, omit paragraph (a).’—( The Solicitor General .)
This amendment ensures that the Scottish powers of detention prior to arrest and of arrest without warrant apply to all immigration offences contained in, or for which an immigration officer has a power of arrest under, the Immigration Acts. It ensures consistency in the immigration-related criminal investigation powers of immigration officers across the United Kingdom.
The aim of new clause 16 is to ensure that there is consistency in the immigration-related criminal investigation powers of immigration officers across the United Kingdom. As I have mentioned in this Committee, we have been
In England, Wales and Northern Ireland, a person may be arrested and interviewed in accordance with the Police and Criminal Evidence Act 1984 or the Police and Criminal Evidence (Northern Ireland) Order 1989 until a decision is made on whether they should be charged with the offence. In Scotland, that differs to the extent that in most circumstances, a suspect can currently only be questioned if they are detained but not yet arrested. Once the suspect is arrested, the general rule is that they cannot be questioned. That means that immigration officers in Scotland cannot properly investigate immigration-related offences for which they have a power of arrest under the Immigration Acts, but do not have the power to detain pending arrest.
The power of detention under section 24 and the power of arrest that immigration officers have under section 26A of the Criminal Law (Consolidation) (Scotland) Act 1995 are also limited by restrictive definitions of immigration and immigration enforcement offences, further limiting the use that immigration officers can make of their Scottish criminal investigation powers. We therefore believe that immigration officers working in Scotland should be able to rely on their Scottish powers, so that the criminal cases they investigate can be properly progressed towards trial and conviction under the Scottish criminal justice system. Our intention with the new clause is to amend the current power of detention under section 24 of the 1995 Act so that it applies to all immigration enforcement offences contained in, or for which an immigration officer has a power of arrest under, the Immigration Acts.
Although this means amending Scottish legislation, we note that the Scottish Parliament could not be asked to address this issue as varying the powers of immigration officers would not be within their competence. For those reasons, I beg to move that new clause 16 stand part of the Bill.
In paragraph 16 of Schedule 2 to the Immigration Act 1971 after subsection (4) insert —
‘(5) A person may not be detained under this paragraph if they are a member of one or more of the following groups of person—
(a) Pregnant women;
(b) Victims of trafficking;
(c) Victims of torture;
(d) Victims of sexual violence;
(e) Any other group as may be prescribed by the Secretary of State.”—(Paul Blomfield.)
This amendment would provide that pregnant women, victims of trafficking, torture and sexual violence, and any other group prescribed by the Secretary of State, may not be detained pending an examination or decision by an immigration officer.
In paragraph 16 of Schedule 2 to the Immigration Act 1971 after subsection (4) insert—
“(5) ubject to regulations under subsection (6), a person detained under this paragraph must be released on bail in accordance with Schedule 5 to the Immigration Act 2016 after no later than the twenty-eighth day following that on which the person was detained.
(6) The Secretary of State may by regulations make provision to vary by category of person the time limit under subsection (5).”
I am very pleased to be speaking to new clauses 1 and 3, were tabled by the hon. Member for Bedford (Richard Fuller), a Conservative. I was delighted to have the opportunity to add my name to them so that they can be debated by the Committee. I think we are moving into new territory here, and I hope that the cross-party consensus that is reflected in my decision to support the clauses will be reflected in our deliberations.
In the previous Parliament I was pleased to serve as vice-chair of an inquiry into immigration detention on a panel that included the hon. Member for Bedford, along with other colleagues from the Government Benches, including the hon. Member for Enfield, Southgate (Mr Burrowes) and a former Conservative Cabinet Member, the right hon. Member for Meriden (Mrs Spelman). Opposition Members were in a minority on the inquiry panel, which drew parliamentarians from both Houses, including many with huge experience such as a retired Law Lord and a former chief inspector of prisons.
The inquiry was brought together by the all-party group on migration and the all-party group on refugees. Our recommendations, which were prepared after eight months of deliberation, included the limits on detention contained in new clauses 1 and 3. The recommendations were endorsed by the House of Commons on 10 September. The new clauses therefore build on the work of the inquiry and provide expression for the will of the House by introducing limits on indefinite immigration detention. This is not a particularly controversial proposal: we are unusual in this country in having no limit on administrative detention for immigration purposes.
Sadly, we have become increasingly dependent on detention, and that has been the case under successive Governments. This is not a party political point. Detention takes place in immigration removal centres, and the clue for their purpose should be in the name. They are intended for short-term stays, but we have become increasingly reliant on them, and as the use of detention has expanded rapidly over the last two decades, so has the size of the estate. In 1993, there were 250 detention places available in the UK; by 2009 the number had risen to 2,665, and by the beginning of this year it had risen to 3,915. The number of people entering detention in the year to June 2015 was just over 32,000—up 10% on the previous year. In contrast, Sweden, a country that in most years receives something like three times the number of asylum applications—I accept that immigration detention does not simply relate to asylum;
The reality is clearly different. Members will be aware of a number of high-profile incidents in immigration removal centres, including deaths and allegations of sexual assault. That was reflected in the evidence heard by our inquiry. In our first oral evidence session, we heard from non-governmental organisations and medical experts. Most powerfully, we heard from people who were at that time in detention centres via a phone link to immigration removal centres.
One young man from a disputed territory on the Cameroon-Nigeria border told us his story. He said that he had been trafficked to Hungary as a 16-year-old, where he was beaten, raped and tortured. He managed to escape and eventually made his way to Heathrow using a false passport, which was discovered on his arrival. He was then detained. We asked him how long he had been detained for. He told us that he had been detained for three years in the immigration removal centre. His detention conflicts with three stated aims of the Home Office: first, that those who have been trafficked should not be detained; secondly, that those who have been tortured should not be detained; and, thirdly, that detention should be for the shortest possible period.
New clause 1 seeks to put those Government aims on torture and trafficking in the Bill, and to add victims of sexual violence and pregnant women to the category of people not to be detained. Her Majesty’s chief inspector of prisons, Nick Hardwick, following an unannounced inspection of Yarl’s Wood immigration removal centre earlier this year, said to the Government:
Following a case that was reported on 6 October, I understand that the Home Office is reviewing its policy on the detention of pregnant asylum seekers. I would welcome the Minister’s clarification on where that review stands.
New clause 3 seeks to deal with the wider issue of indefinite detention, the impact of which was a constant theme of our inquiry, and about which we received some striking testimony. Time and again we were told that detention was worse than prison. Initially, a number of us were puzzled by that, because we were not talking about the criminal justice system—many of those people demonstrate in due course that they have the right to be here—but those who were detained said that people in prison at least know when they will get out. As one former detainee told us:
Medical experts told us that the sense of being in limbo and the hopelessness and despair leads to deteriorating mental health. One told us that those who are detained for more than 30 days have significantly higher mental health problems.
However, it is not just the impact on those who are detained. A team leader at the prisons inspectorate told us that the lack of a time limit encourages poor caseworking and lazy procedures in the Home Office. He told us that one quarter of the cases of prolonged detention that the prisons inspectorate had considered were the result of inefficient casework. That is not because it was inappropriate for people to be released. Despite being called immigration removal workers, we found—this is an important point—that most people who leave detention do so for reasons other than being removed from the UK. According to the latest statistics produced by the Government, more than half the detainees are released back into the UK. The system is therefore not only bad for those involved, but expensive and a waste of public resources, at a time when the Chancellor is looking for savings. Detaining someone costs £36,000 per year. Alternatives to detention, proved to be more effective in other countries, are significantly cheaper; so alternatives driven by imposing such a limit would save taxpayers’ money.
The recommendation to set a maximum time limit in statute, which new clause 3 would introduce, would not simply right the wrong of indefinite detention, but change the culture endemic in the system. By doing so, it would meet the aims of the Home Office’s own guidance, which is about detention being used more sparingly and only as a genuine last resort to effect removal. The proposed limit of 28 days reflects best practice in other countries and is workable for the Home Office, given that in the first three quarters of 2014 only 37% were detained for longer. It also reflects evidence about the mental health impact on those detained for more than a month.
Deprivation of liberty should never be a decision taken lightly or arbitrarily. Decisions are taken by relatively junior officials, with no automatic judicial oversight. With no time limit in place, it has become too easy for people to be detained for months on end, with no meaningful way to challenge their continued detention. The introduction of a time limit and the reduction in reliance on detention represents a significant change—it is in line with what happens in other countries, but it is a significant change for us. Therefore, in order to detain fewer people for shorter periods of time, the Government will need to introduce a much wider range of community-based alternatives.
In the report of the inquiry panel that I mentioned earlier, we gave a number of examples of such alternatives from other places, including the United States—we are not talking about countries that might be perceived as a soft touch. Indeed, Australia, a country whose immigration system is often held up as an example of toughness, has also developed constructive, effective and much cheaper alternatives to detention. Those alternatives allow people to remain in communities while their cases are being resolved, including when making arrangements to leave the country. Not only are the alternatives better; as I have said, they also cost less and are more successful, because they have higher compliance rates in terms of people’s willingness to return.
There is a recent UK precedent. When the coalition Government committed to reduce the number of children detained, they introduced the family returns process. The House of Commons Library described its design as
and it worked. There has been a dramatic fall in the number of children detained, and the Home Office’s own evaluation of the scheme found most families compliant with the process, with no increase in absconding.
I know that the Government share many of the concerns about immigration detention. I guess that is why in February they commissioned Stephen Shaw, the former prisons and probation ombudsman, to conduct
I understand that the Government received the Shaw report some time ago. I hope that the Minister can tell us when he intends to publish it and the Government’s response to it. However, that report will not cover the central issue of a statutory limit on detention, unless thinking is already moving on and he can tell us otherwise.
“Other well respected bodies have recently called for time limits on administrative detention. In my view, the rigorously evidenced concerns we have identified in this inspection provide strong support for these calls, and a strict time limit must now be introduced on the length of time that anyone can be administratively detained.”
We are proposing an end to indefinite detention not simply because it would be more just and humane but because it would be less expensive and more effective in securing compliance, which Members on both sides of the House wish to see. Therefore, I hope the Government can accept the new clauses.
Gavin Newlands: They say that a country should be judged based on how it treats the most vulnerable, but the way that we have treated people who are attempting to gain asylum into the UK has been, at times, shocking.
The UK is the only country in Europe that uses detention with no official end date and that should shame us all. I am sure that I am not the only one who has been appalled at some of the detention stories that we have read about or seen on television. In particular, “The Glasgow Girls” served as a harrowing reminder of the cruelty that the UK’s detention policy brings about. Even though the policy of detaining children was ended in 2010, the Scottish Refugee Council has highlighted that children are wrongly assessed as being of adult age and therefore are still being detained. The council says:
“A small number of children are still detained at the end of the asylum process, after their case is heard by an independent panel, in Cedar’s Pre-Departure Accommodation. It is run by private companies…with welfare services provided by Children’s Charity Barnardo’s. This ‘open’ facility is designed as a last resort, before families are removed to their countries of origin. But there are still concerns about the affect its use has on children—many of whom are sent from Scotland on their way to their countries of origin.
I hope that the new clause serves as a catalyst for further investigation, so that these young people/children are treated with dignity and respect, and are not detained
The case of Souleymane, who was detained for three and a half years, was highlighted in the detention inquiry report, and it serves as another cruel reminder of the policy of detention. There is no excuse for such a long period of detention. The case highlighted that detainees were being transported from one detention centre to another. The length of time that Souleymane spent in detention had an obvious and significant impact on his mental health, and I must ask, is that something that we are proud of?
New clause 3 does not go far enough, in that it has a caveat that I do not agree with. Nevertheless, it is a massive step in the right direction. Again, I want to see the ending of the policy of detention, as it is not a sign of the caring and compassionate country that I recognise the UK to be. The new clause will leave the provision for the Home Secretary to detain someone beyond 28 days by varying the time limit by category of person. In and of itself, it does not prevent cases such as that of Souleymane from happening again, as it hands the Home Secretary a wide discretionary power to overcome the 28-day obstacle.
Also, the parliamentary inquiry report suggested that the longer an individual is detained, the less likely it is that they will be removed from the UK. For example, the report found that, of the 178 people who have been detained for 12 months or more, 57% of them were ultimately released.
In talking about detention, I must use this opportunity to praise the work of the Scottish Refugee Council and other community-based organisations and groups that support asylum seekers on the frontline. Regardless of our political views, we should extend a debt of gratitude to those groups for the fantastic and at times difficult work that they do. The Bill and this provision in particular will have a significant impact on their work, and it is important that we support them when the Bill becomes law. Therefore, I ask the Immigration Minister to take time to meet groups such as the Scottish Refugee Council to learn more about the issues that they face, and to find out what support they need to perform their important jobs.
Detaining someone for any period of time is not something that we should be proud of. These detention centres are a symbol of the cruel approach that successive UK Governments have adopted with regard to asylum seekers. That is why we in the SNP do not think that the new clause goes far enough. The SNP policy on asylum seekers is more progressive. We want asylum seekers to have the chance to work, earn a living, pay tax and contribute to the community while they are waiting for a decision to be made on their application. Economically that makes sense but, more importantly, it is the right and moral thing to do.
Keir Starmer: I support my hon. Friend the Member for Sheffield Central’s new clause and I pay tribute to the part he played in the report to which he referred. As he said, the report was powerful and strong recommendations were made. The key recommendations from the report were, first, that there should a limit of 28 days on the length of time anyone can held in
This is a real concern, a growing concern and a cross-party concern. I know that the Stephen Shaw work has been done and there is a report. I think that that mainly touches on welfare, but I will be corrected by the Minister if I am wrong. The new clause is important because it goes well beyond welfare issues; it is a point of real principle. In that spirit I support it.
Anne McLaughlin: In the immigration debate that took place in the Chamber, I spoke about a child who had been in detention. I know that the policy, notwithstanding what my hon. Friend the Member for Paisley and Renfrewshire North said, is no longer to detain children, but I want to repeat what I said about that child, and I will explain why.
I talked about a 10-year-old boy who was detained with his mother in Dungavel in Scotland and was then moved to Yarl’s Wood. He lost 10 lb in three weeks and lost so much hope that he turned to his mother one day and whispered, “It would be easier if we died. Mummy, please can we die?” I appreciate that there is not a person in this room—I have absolutely no doubt—who, if that child were standing in front of them, would not do whatever they could to help that child. This was somebody I knew pretty well.
Okay, so we only detain adults now, but I am not willing to believe that there is any Member here who, if they had a woman standing in front of them who had been through so much trouble to get here, who was a victim of sexual violence, and they could make the decision about that one person standing there, having heard her story, would not help her. I do not believe that any of us would not use the key that we have to free her from detention if we were able to do it. They are not standing in front of us now, but we are the ones who hold the key to whether those people suffer in the way that many hon. Members have described. That mother wanted to comfort her child. She wanted to reassure her child that it would be over soon, that “this will be happening” in two weeks or one week, three days or three months or whatever, but she could not. She could not reassure herself because she had no idea how long they were going to be there.
I think that the worst thing for people is not having a clue when or where it is going to end. I visited a family in Dungavel a number of years ago, as an elected Member of the Scottish Parliament and I felt intimidated. I felt intimidated by the surroundings and the uniforms, by the big jangle of the keys, by the prison-like atmosphere and the fact that I was fingerprinted. I was a Member of the Scottish Parliament and they fingerprinted me as I went in. If I felt intimidated, what must it feel like to somebody who has absolutely no
I pay tribute, as my hon. Friend the Member for Paisley and Renfrewshire North has done, to the organisations that support people in detention. I particularly encourage the organisations that demonstrate outside such facilities to continue to do so, because it makes a big difference to the people inside. There was a demonstration at Dungavel a couple of weeks ago. I know people who went, although I was unable to attend.
James Brokenshire: The hon. Lady is making her case and has indicated that she thinks that the measures do not go far enough. Just so that I understand, does she believe that there is a role at all for detention in immigration removal?
Anne McLaughlin: As a last resort. I have never said that we should never detain anybody, but detention is to be used as a last resort. In fact, I think the Minister himself said that the power to detain should be exercised only sparingly and for the shortest possible time. I do not know whether that is the case, but it should be the case.
If it is for the shortest possible time, that is a good argument for having a time limit in statute. I agree with the hon. Member for Sheffield Central, who said—I think the report of the inquiry into the use of immigration detention in the UK also made the point—that, without a time limit, the casework will suffer. We are all human beings. I am a deadlines kind of person; I do things at the deadline. I would love to be the kind of person who does things in preparation for a deadline, and I am always telling myself that I will be that kind of person, but we are all human and we all work to deadlines. If there is no deadline, of course things take a lot longer.
I also wanted to say something about the categories of people who could not be detained if the new clause were accepted. They would include people who have been trafficked. In an earlier sitting, several Conservative Members and I had a debate about people allowing themselves to be trafficked. I was pretty upset at the time, as were a lot of people, but I realise now how that misunderstanding came about: it is because there is an awful lot of talk in the media about people trafficking when it is actually people smuggling. I accept that is not the fault of the people who pick up the term, but the language that we use is extremely important. If we all accept that trafficking involves coercion and is done against the person’s will and that those people have effectively been kidnapped, I hope that we can accept that detention is an absolutely dreadful experience for them and affects them even more severely. I certainly support not detaining that group of people.
On the assisted returns project, I reassure the Minister, as I have said, that I understand that sometimes people must be detained. I also understand that sometimes they must be deported—removed from this country—because not everyone is entitled to live here. If that is done, it is far better to continue with schemes such as the family returns project. I have constituents and friends who do not want to return because their memories are of the country that they came from as it was when they left. All they need is reassurance from somebody that
Most people who come to live in this country do so in such circumstances. They do not come here because they desperately want to live here. Most people would rather live in the country that they have come from. In leaving, they are leaving their family, their friends, their neighbourhood and the school that they went to. Most people do not want to give that up. Sometimes they need reassurance that they will be protected and that life is very different in the country that we are returning them to. That is why the approach must not be to criminalise them, lock them up or refuse to tell them when or if they will be leaving. The approach should be more humane than that, and should be about working with them rather than against them.
Sarah Champion : I will speak very briefly to the new clauses, because they seem logical and non-contentious. I am particularly pleased that they have been tabled in a cross-party manner and that they were developed from a cross-party inquiry by the all-party groups on refugees and on migration. They build on existing legislation, such the Modern Slavery Act 2015; that is particularly true of new clause 1.
“would provide that pregnant women, victims of trafficking, torture and sexual violence, and any other group prescribed by the Secretary of State, may not be detained pending an examination or decision by an immigration officer.”
I want to focus on women, pre-empting some of the arguments that Ministers might make against the measures, particularly new clause 1. The organisation Women For Refugee Women has said that 72% of asylum seekers have been raped as part of the persecution that they are fleeing, and almost all have been victims of gender-related persecution. I ask the Minister to consider that. The United Nations High Commissioner for Refugees detention guidelines state:
I would also like to draw to the Committee’s attention the work of the Foreign and Commonwealth Office, which is working hard to end sexual violence in conflict by protecting survivors and actively prosecuting perpetrators. It seems to me irrational that while the FCO is working so hard and courageously, and receiving great commendation internationally for doing so, the Bill will effectively re-traumatise victims who have crossed borders to find safety in this country. It is also my understanding that the Home Office’s policy is to detain pregnant women only in exceptional circumstances. I therefore ask Ministers to give serious consideration to new clauses 1 and 3.
James Brokenshire: We have had a wide-ranging debate on an area of policy that is challenging and difficult. I say that because a significant proportion of those in immigration removal centres will be foreign national
There is a real challenge, about which I caution hon. Members, because if the official Opposition vote for new clause 3, they will be voting for a change of their policy. I note that exclusions were previously advanced for foreign national offenders and other groups, in recognition of some of the complexities and other challenges in this matter. People will seek to frustrate their removal at all costs. That is why, regrettably, there will always be a need for some level of immigration detention for when individuals fail to comply with requirements to leave the UK, seek to frustrate their removal or seek at times to use time limits as a means to string things out, because they know that they may gain advantage. Having said all of that, we are clear that detention should be used sparingly and only as a last resort.
We take our duty of care to those who are in detention seriously, for example, through healthcare and other provision. I recognise the reports on the issue of vulnerability to which I will come on, but there are many people working in immigration removal centres day in, day out, doing a tough and challenging job. In commenting on a number of the points made today, I put on the record my appreciation for those who are doing that tough job that supports our immigration centres and seeks to ensure that detainees are treated in a just, fair, appropriate and dignified way.
I underline that alternatives to detention should be used where possible, and I recognise that more can be done. The Bill and its new powers are part of the wider work to ensure that the Home Office has the right measures to manage individuals who are not detained and to ensure that they leave the UK when they no longer have any rights to be here. I continue to give great thought to ensuring that we provide an effective system that delivers value for money and seeks the departure or removal of increasing numbers of people who have no right to be here. There is the balance between enforced removal and encouraged or facilitated departure and we have already debated that broadly in respect of family groups.
New clause 1 would introduce a statutory prohibition on the detention of pregnant women and victims of torture, trafficking and sexual abuse. I note the generous way in which the hon. Member for Sheffield Central sought to recognise that it was my hon. Friend the Member for Bedford (Richard Fuller) who, on Second Reading, tabled an amendment on this issue. Along with many other Members of the House, he is tireless in his work on issues of immigration and detention and takes such matters seriously. I pay tribute to the former Member, Sarah Teather, who chaired the all-party group on refugees. While we did not always see eye to eye, I never doubted her focus and determination to ensure that the issues were considered by the House. I know that the hon. Member for Sheffield Central was part of that all-party group and continues that work.
I can tell the Committee that we take such issues extraordinarily seriously and they weigh heavily on Ministers when we seek to deprive people of their liberty. Therefore, in our approach we seek to ensure
The Committee will be aware that we have received Mr Shaw’s report and are considering our response to that important issue. We are actively considering the report’s recommendations and we will come back to the House in due course to report on that.
I think that the hon. Member for Sheffield Central was seeking a timeframe from me. We are not seeking to delay; we are considering those issues carefully, but I want to get it right and come back to the House with an appropriate response that recognises the thorough work that Mr Shaw has undertaken.
Paul Blomfield: I thank the Minister for his comments on that specific issue. Will he come back to the House with a response to that review before the Bill has completed its journey through both Houses?
James Brokenshire: I can certainly tell the hon. Gentleman that I wish to ensure that we publish the report and the Government’s response before the Bill completes its passage through Parliament. Equally, I want to ensure that we come back when we can. It is important that we reflect properly on the report and the recommendations, which we are actively doing.
During our debate on bail, I made it clear that vulnerable people should not normally be detained under immigration powers. I reiterate that point now. This approach is our published policy. We have a clear list of individuals who are not normally suitable for detention unless there are exceptional circumstances in play. The list includes pregnant women, the elderly, and those who have been identified by the competent authority under the national referral mechanism as victims of trafficking and torture. It is unlawful to act in a way that is contrary to our published policy.
The hon. and learned Member for Holborn and St Pancras raised the issue of mental health and release from detention. He asked whether there would ever be circumstances where a high-risk individual may need to be released from immigration detention because of their poor mental health. I can confirm that there will be some cases involving mental health issues where an individual should not be detained under immigration powers, no matter how high the risk and no matter how imminent the removal. In those cases, the right course of action will normally be to transfer to the appropriate authorities.
The new clause lacks definitions of the relevant exclusions and, as such, would be open to broad interpretation, so it contains weaknesses. Such an approach could leave the Home Office open to damages. For example, if a woman was pregnant at the point of detention but not aware of the fact or chose not to disclose her pregnancy, the Home Office could be sued for damages after the fact. It is an unfortunate reality that, in some cases,
James Brokenshire: I am making a technical point on the drafting of the new clause. There are issues of principle, but we believe that even if the principle were accepted, there are technical deficiencies in the drafting that Members might wish to reflect on, given that no amendments have been tabled.
Sarah Champion: I appreciate the open and generous way in which the Minister has approached the matter. I would like to build on what the hon. Member for Glasgow North East said. If the Committee supported the intention of the new clause, we would be very keen to work with the Minister to try to get the wording in such a state that the Home Office felt comfortable in taking it forward.
James Brokenshire: I do not support the new clause. I am certain that the intention behind it is not to undermine immigration control or to reward those who make spurious claims about being a victim of hideous events to avoid enforced removal when they refuse to leave the UK voluntarily. Sadly, those cases exist, which is why this is difficult territory and regrettably, that may be the practical effect of the new clause. However, I recognise that the issue of vulnerable people in detention is a major concern to MPs and to many people outside the House. I therefore ask that the Government are given time fully to consider Stephen Shaw’s review before the House legislates on a very complex issue.
New clause 3 would introduce a statutory time limit on detention unless the individual was listed in the regulations as being exempt from the time limit. There is a common misconception that detention under immigration powers is indefinite. I want to make it clear to the Committee that that is not the case. Although there is no fixed statutory time limit on the duration of detention under immigration powers, it is not the case that there is no time limit. It is limited by statutory measures, the European convention on human rights, the common law, including principles set out in domestic case law, and the legal obligations arising from the Home Office’s published policy, which states:
I will highlight something, because some have suggested that there is a desire to extend detention and the process is in essence an aid to that. Published statistics show that the majority of individuals leave detention after 28 days or less, with more than 90% of them leaving detention within four months. Therefore, the facts do not bear out the contention that immigration detention is indefinite.
I ask the Committee to reflect on the fact that if all individuals complied with the notice that they should leave the UK, there would be little need for immigration detention—certainly limited need for detention beyond a short period. However, some individuals choose not to comply with the law and do not leave the UK when
There is also a practical disadvantage in an arbitrary time limit. People in a non-compliant removal case could simply disrupt their removal for 28 days in the knowledge that they would be released from detention. Sadly, there are people who play the system in that way.
Keir Starmer: On the question of “indefinite”, surely the detention is indefinite in the sense that there is no definite limit to it. The detention might not be unending, but it is indefinite in the way that we all understand “indefinite”.
James Brokenshire: Indefinite detention implies detention that cannot be brought to an end. For reasons of bail and the relevant principles in common law, the detention has to be linked to the ability to remove.
If we look at the cohort likely to be in detention for longer, the vast majority are foreign national offenders. That is the reality we are dealing with. There might be challenges that we are working through on identification, so that they may get the relevant travel documentation, or they might take other measures to prevent their removal. There are a number of challenging policy issues in this area, but I underline the policy principles that exist in respect of why detention is there and why it is linked to removal. Equally, I underline the relevant safeguards.
Hon. Members might say that non-compliant cases could be added to the regulation that sets out cases where the 28-day limit does not apply, but the use of the detention power is increasingly focused on non-compliant individuals to ensure their removal. In reality, even if the clause was founded in that way, there would be little impact if non-compliant cases were added to the list.
I recognise what hon. Members have said about ending the detention of children for immigration purposes. I am proud that the Government have introduced measures to ensure that the routine detention of children under immigration powers is used only in very, very limited circumstances. Equally, we do not detain individuals for age-assessment purposes. In cases in which an individual is held in an immigration removal centre and doubts arise as to whether they are an adult, we aim to release them immediately into local authority care, pending an age assessment.
I recognise that we are discussing a controversial policy area, but I underline the fact that we are dealing with the details. There are a range of public policy views and objectives that need to be advanced, but ultimately there are clear safeguards in the system. We will continue to reflect carefully on the issues of vulnerability, but I hope that, given those assurances, the hon. Member for Sheffield Central is minded to withdraw the new clause.
The Chair: I remind the hon. Member for Sheffield Central that he may withdraw new clause 1, or press both new clauses to a vote—that is a matter for him—but he will be winding up the debate on new clauses 1 and 3.
Paul Blomfield: I am mindful there might be a vote in the Chamber in a few minutes, so I will try to be brief. I accept the Minister’s point that this is a complex and difficult area of policy, but evidence from other countries demonstrates that statutory limits on administrative intervention can and do work effectively. There is a case to be made for the limit suggested in new clause 3 and the specific exclusions suggested in new clause 1.
I underline the breadth of support across the House on this issue. That was evident in the inquiry and in our debate on 10 September, when 25 Members from all parties represented on this Committee—and more besides—spoke. The House, as a result of that debate, endorsed the recommendations.
On the Minister’s point about foreign national offenders and the wider caveats in new clause 3, not all foreign national offenders are necessarily a risk to public safety, and issues around that need to be addressed. I accept his point that there may be a lack of precision in how the new clause is drafted. For that reason, I agree not to press new clauses 1 and 3 on the understanding that he will, as he indicated, actively come back to us with the results of his consideration of the Shaw review. We will then have an opportunity to come back to the issue while the Bill proceeds in a way that achieves the objectives of the new clause, but perhaps in a better crafted way. I beg to ask leave to withdraw the clause.
The Chair: Before we adjourn, I add that I may not be with you again if business finishes on Tuesday morning next week. I thank the Clerks, Members on both sides of the Committee, including those on the Front and Back Benches, and everyone for their co-operation during proceedings.
James Brokenshire: On a point of order, Mr Owen. As this may be our last opportunity as a Committee to recognise your contribution to the Bill in ensuring that our consideration is in order and in adding to the good-natured spirit of our proceedings, may I, on behalf of the Committee, thank you for your chairmanship? We have very much appreciated your guidance and assistance, which has added to our consideration of the Bill.
Keir Starmer: On a point of order, Mr Owen. I endorse that point of order. Not only for the group the Minister spoke of but for those of us who have gone round this track for the first time, your help and assistance and that of the Clerks has been invaluable to each and all of us.
Written evidence reported to the House