1 Feb 2016 : Column 1579

House of Lords

Monday, 1 February 2016.

2.30 pm

Prayers—read by the Lord Bishop of Norwich.

Death of a Former Member: Lord Roper


2.36 pm

The Lord Speaker (Baroness D'Souza): My Lords, I regret to inform the House of the death on 29 January of the noble Lord, Lord Roper. On behalf of the House, I extend our sincere condolences to the noble Lord’s family and friends.

Saudi Arabia: Executions


2.36 pm

Asked by Baroness Falkner of Margravine

To ask Her Majesty’s Government what discussions they have had with the government of Saudi Arabia regarding the executions of political activists.

The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con): My Lords, the British Government are firmly opposed to the death penalty in all circumstances and in every country. We have expressed our concern to the Saudi authorities, most recently during my honourable friend Tobias Ellwood’s visit to Riyadh on 25 January—last week. The British Government do not shy away from raising legitimate human rights concerns, but we believe that we will be more successful discussing cases privately with Saudi Arabia than criticising it publicly.

Baroness Falkner of Margravine (LD): My Lords, it is widely reported that in King Salman’s first year of office, 2015, Saudi Arabia executed more people than in any of the previous 20 years. Many of those people were executed for political dissent. The last time we discussed this, on 13 January, the noble Baroness was urged from all sides of this House to express those concerns to the Saudi Government. She has just told us that they have done so. What was the Saudi Government’s response, and will they distinguish between political dissent and other crimes?

Baroness Anelay of St Johns: My Lords, during his visit, Tobias Ellwood had meetings with members of the National Society for Human Rights, the Saudi Arabian Ministry of Foreign Affairs and members of the Shura Council. He also met advisers, so he covered a wide variety of people with whom he could have this conversation. Naturally, as I explained in my Answer, we prefer to make our points in a private environment. The Saudi Arabian Government and others in Saudi Arabia are clear that we will not stop coming forward with our views on each and every case where someone has been arrested and faces the death penalty.

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Lord Elton (Con): My Lords, the Minister said that we deplore executions for political reasons in all countries. Have our representations been equally private and powerful with Iran?

Baroness Anelay of St Johns: My Lords, of course, our diplomatic relationship with Iran has only recently resumed, and it is important that we are able to nurture it. Iran will be under no misunderstanding about the strength of opinion of the British Government—indeed, of all British Governments in recent decades—that the death penalty is wrong in principle, wrong in practice and can undermine a successful society.

Lord Singh of Wimbledon (CB): My Lords, I cannot understand why we make only private representations to Saudi Arabia. Is not public condemnation much more effective?

Baroness Anelay of St Johns: No, my Lords, our experience has been that with certain countries that is not the case and it can in fact be counterproductive. We are always careful to ensure that we make best use of our diplomatic voice in private. Saudi Arabia is not the only country that responds better to that kind of exchange. However, that does not stop me from being as public about this matter as I am today.

Lord Soley (Lab): My Lords, the Iranian and Saudi Governments are both extremely volatile. As we know, what is happening in Saudi spills over into Yemen and if we are not careful, it will also spill over into Bahrain. I ask the Minister to exercise as much pressure as we can on the Saudi Government to understand that it is almost impossible to defend them at times, given the behaviour of their regime.

Baroness Anelay of St Johns: My Lords, the point lying behind the words of the noble Lord, Lord Soley, is certainly right: all countries must have regard to the fact that their actions may lead to regional instability. It is important in the Gulf and Middle East that all countries recognise the impact their actions can have.

Lord Wright of Richmond (CB): My Lords, is the noble Baroness able to comment on reports that the execution of a young man under the age of 18 was in itself a breach of Sharia law?

Baroness Anelay of St Johns: My Lords, I am aware that there is a newspaper report to the effect that one person expected to be an adult at the time of his execution may not have been, but there is not yet proof of that. Certainly, with regard to three juveniles being held at the moment under a penalty that includes the death sentence, we have been given assurances, including most recently by the Saudi Foreign Affairs Minister, that those sentences will not be carried out. Of course, whatever we think of Sharia law—we may have different views on it—some countries have the death penalty and we need to work to ensure that it is removed.

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Lord Wallace of Saltaire (LD): My Lords, Saudi Arabia has a substantial Shia minority. Will this Government, in the private conversations they have with the Saudi Government, tell them very strongly that the last thing we want is to see Middle Eastern politics deteriorate into a Sunni/Shia international conflict? The way that the Saudis treat the Shia minority is important regarding whether that will happen.

Baroness Anelay of St Johns: My Lords, it is important in all countries, whether there is either a Shia majority or a Shia minority, that all those holding the faith are treated with respect. It is worth noting that when Shia members at a mosque were killed so appallingly by a suicide bomb this weekend, the Sunni Foreign Minister not only ensured he made a public statement but commiserated with the Shia minority.

Lord Hughes of Woodside (Lab): My Lords—

Lord Naseby (Con): My Lords—

Lord Trefgarne (Con): My Lords—

The Lord Privy Seal (Baroness Stowell of Beeston) (Con): My Lords, it is the turn of the Conservative Benches. I urge noble Lords to allow the Minister to sit down before they stand up to ask the next question.

Lord Trefgarne: My Lords, I welcome my noble friend’s preference for private representations in this matter. Would she not agree that megaphone diplomacy is almost always less effective in the long run and is therefore not to be supported? Will she also bear in mind the importance of our commercial relations with Saudi Arabia, not least in the defence field?

Baroness Anelay of St Johns: My Lords, megaphone diplomacy can indeed be counterproductive. One must consider its use in each and every country. Our trade relationship with Saudi Arabia is important from the point of view of security but also complements our work on human rights. Our work on human rights is never in any way diminished by our trade relationship with Saudi Arabia.

Lord Hughes of Woodside: My Lords, while not disputing in any way the efforts made by the Minister in her quiet diplomacy, there is no evidence whatever that that is working—in fact, the opposite is true. Is it not time to speak out clearly and loudly, making it plain to the Saudis exactly how we feel publicly?

Baroness Anelay of St Johns: My Lords, I have to disagree with the noble Lord when he says that it has not been working. One of the factors is that constant work behind the scenes can lead to some joint understanding of, for example, the introduction of the EU minimum standards with regard to the implementation of the death penalty—that it should not apply to those who are pregnant, who have learning difficulties or who are minors. So with that, and perhaps with women’s rights, it is important to point to where there have been changes for the better.

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Banks: Internet Banking


2.45 pm

Asked by Lord Sharkey

To ask Her Majesty’s Government what assessment they have made of the number of failures of retail banks’ software systems to provide internet banking to customers.

Lord Ashton of Hyde (Con): My Lords, it is the responsibility of firms to ensure the resilience of their IT systems. However, the financial authorities take the resilience of the sector seriously, which is why the Financial Conduct Authority and the Prudential Regulation Authority recently completed a technology resilience review of the largest UK retail deposit-taking firms. The review’s outcomes have not been published, but the authorities are developing work plans to ensure that further improvements are made to IT systems, and customers protected.

Lord Sharkey (LD): Two years ago, the FCA said:

“We want to make sure that the banks have resilient IT systems in place that are able to cope with consumer demand, so customers aren’t left financially stranded or disadvantaged”.

It has not happened. HSBC alone had three systems failures in January, the latest last Friday, the most critical day of the month. Even the Bank of England systems collapsed at the end of 2014. Can the Minister say that the banks are devoting sufficient time and resource to long-term solutions and not just looking for an even more short-term patch? What assurance can he give that the FCA is really on top of all this?

Lord Ashton of Hyde: My Lords, it is true that there have been incidents, but none as serious as the one that occasioned the “Dear Chairman” review in 2012. Since then, they have not been as serious as that. I assure the noble Lord that the FCA and the PRA are taking this very seriously. They have initiated a second “Dear Chairman” exercise, which has sought to assess the improvements made since the first exercise and the extent to which good resilience practices are embedded with those firms. The regulators are aware that firms are spending considerable amounts on their IT systems.

Lord Reid of Cardowan (Lab): My Lords, given the significant dislocation and inconvenience caused by recent non-malign interventions on the bank systems, what degree of confidence does the Minister have that they are in a position adequately to protect against malign interventions, such as hacking, breaches of privacy, and theft of financial details and indeed of finance itself?

Lord Ashton of Hyde: My Lords, it would be very unwise for anyone to say that they were totally confident that cyberattacks are totally protected against. What I can say is that the Government are taking it seriously, and the Chancellor has announced that they have doubled spending on cybersecurity to £1.9 billion. The Financial Policy Committee has been given a remit by the Chancellor specifically to look at operational resilience. The PRA has financial stability as its core remit.

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Baroness Hayter of Kentish Town (Lab): The people who suffer most from this are indeed the customers, particularly on the last occasion—on what was probably their first pay day this year. What action are the Government ensuring is taking place to make sure that those consumers can be compensated without each of them having to take their own case and prove their own personal discomfort?

Lord Ashton of Hyde: Of course, the point of setting up the regulatory system is that it is for the regulators to deal with consumer detriment, which is exactly what the Financial Conduct Authority has done. I believe that the banks involved in this have said that they would not allow consumers to suffer detriment.

Lord Flight (Con): My Lords, does the Minister recognise that part of the problem is that the long-standing banks have computer systems that go back a long way and which are often very difficult to modernise? They cannot suddenly turn off the whole of their system for a fortnight and put in a brand new one, so existing systems keep getting added to until the scope for mistake and failure if anything gets greater.

Lord Ashton of Hyde: I accept that old IT systems are more difficult to modernise than starting from scratch. That is why many challenger banks are now in the pipeline, ready to compete with the older banks. The Government support challenger banks and encourage customers who wish to change their banks to do so, and 2.1 million customers have done so under the CASS system.

Baroness Kramer (LD): My Lords, the unmodernised IT systems that the noble Lord, Lord Flight, just described add to the cost of every transaction by every customer. Does the Minister believe that this is an issue of customer detriment that ought to be investigated by the FCA? Will he back long-term bank investors who have been calling for far more disclosure of how the banks spend their IT money so that they can identify risks and support the banks that are making the necessary long-term investment?

Lord Ashton of Hyde: I agree that disclosure should take place within market norms, and that commercial organisations should be encouraged to disclose. I completely accept that. As far as the expense is concerned, it is a bit difficult; either we want the banks with old IT systems to bring them up to date or we do not, and to do so will cost money.

Lord Broers (CB): My Lords, what are the Government doing to pursue the perpetrators of fraud on the internet? The Select Committee several years ago recommended that the American practice be used, whereby those defrauded on the internet are required to report that fraud to the police before the bank is allowed to deal with it. Are the banks are obliged to report fraud to the police so that someone can pursue it in a co-ordinated way?

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Lord Ashton of Hyde: I will write to the noble Lord to be absolutely specific about that, but fraud is fraud, whether it takes place on the internet or any other way, and banks are required to obey the law for internet fraud as any other.

Lord West of Spithead (Lab): In support of my noble friend Lord Reid, this problem is getting exponentially worse. Is it not right to say that banking and the money markets are effectively part of our critical national infrastructure? As was just said, although we are now encouraging people to report attacks on their systems, there have been some huge attacks—for example, on the New York Stock Exchange—where victims have refused to comment on it because they are scared of denting investor confidence. It is crucial that these things are reported so that we can learn lessons and move forward.

Lord Ashton of Hyde: I am not sure the noble Lord is correct that the problem is getting exponentially worse. However, I accept that the threat is evolving and changing all the time, and we certainly cannot be complacent. The Government have set up the Computer Emergency Response Team to co-ordinate responses to cybersecurity incidents that threaten critical national infrastructure, and it is certainly the case that the regulators require all firms to report any cyber-related or operation-related incidents in their IT systems to the regulator.

Anti-Social Behaviour, Crime and Policing Act 2014


2.52 pm

Asked by Lord Clement-Jones

To ask Her Majesty’s Government what assessment they have made of the impact on informal and spontaneous busking and on homeless people of the Anti-social Behaviour, Crime and Policing Act 2014 and guidelines made under that Act.

The Parliamentary Under-Secretary of State, Department for Transport and Home Office (Lord Ahmad of Wimbledon) (Con): My Lords, the Government have not carried out any such assessment. However, we have made it clear in the statutory guidance that anti-social behaviour powers should not be used against reasonable activities such as busking, where this does not cross the line into anti-social behaviour.

Lord Clement-Jones (LD): My Lords, that is not particularly reassuring. There is a real problem: scores of public space protection orders, thousands of community protection notices and tens of thousands of dispersal notices have already been issued routinely on an arbitrary basis against street entertainers, young people and the homeless for many legitimate, non-harmful activities such as busking, skateboarding and even carrying a golf bag. This is chilling. Is it not high time that we took stock of these powers and amended the guidance—and, if necessary, the primary legislation—before our freedoms are eroded any further?

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Lord Ahmad of Wimbledon: I think that the position of the Government is very clear on this. Buskers are not criminalised. Indeed, we have seen some very good initiatives being taken at a local level. The noble Lord will be aware of the Busk in London initiative right here in London. What we need to see is more voluntary arrangements in place at a local level. I believe that about seven or eight councils have thus far signed up to the London voluntary code. We need to encourage the remaining boroughs out of the 32 to do so as well.

Lord Paddick (LD): My Lords, in December last year the Metropolitan Police justified the use of the Anti-social Behaviour, Crime and Policing Act to prevent a busker performing in Romford on the grounds that,

“street performing attracts thieves as large crowds gather”.

Yet they do not seem to take any action when even larger crowds gather to watch street performing in Covent Garden. Will the Minister accept that better statutory guidance is needed to avoid heavy-handed policing?

Lord Ahmad of Wimbledon: What is required is for local councils to learn and look towards good practice. We have seen examples of good practice in place and have also seen how the Act has been used effectively—the transition from having 19 elements within the anti-social behaviour orders to having six has helped. But this is very much a matter for local authorities. We have seen good practice around the country, which needs to be replicated in those areas where we have seen such acts as the noble Lord just described.

Lord Brooke of Alverthorpe (Lab): My Lords, can the Minister give a stronger assurance to the Lib Dems that they will not be prosecuted for skateboarding?

Lord Ahmad of Wimbledon: I assure the Lib Dems that if they were to break into song, they would not be prosecuted.

Lord Spicer (Con): If the noble Lord, Lord Clement-Jones, is suggesting that police powers are forcing people to sleep rough on the streets, perhaps it is relevant to ask whether it is not true that there are now 20 times as many hostel places appropriate for people sleeping on the street as there are people sleeping on the street?

Lord Ahmad of Wimbledon: My noble friend raises an important issue in relation to housing and the need for more effective social housing. The challenge for all of us across the country, not just for central government but for local government as well, is to ensure good-quality, affordable housing for all. We all want to see the eradication of street sleeping.

Baroness Armstrong of Hill Top (Lab): My Lords, does the Minister understand that one of the big problems out there is the very steep rise in rough sleeping? There are not enough beds, either hostel beds or other sorts of beds such as detox beds, for them to go into. There has been an unprecedented rise since before 1997 in the number of people sleeping rough on our streets, which is giving local authorities and others massive problems. What will the Government do about it?

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Lord Ahmad of Wimbledon: The noble Baroness’s question goes wider than busking, but I can tell her that of course the Government have taken action; they have undertaken the biggest housebuilding programme that we have seen for decades. It is important that we work with local authorities to identify where the housing challenges are, face up to that crisis and address the housing issue. As I have already said, the issue of housing is a challenge not just for us in central government but across the country for local government as well.

Lord Rosser (Lab): I remind the Minister that the Question refers to homeless people—it is not exclusive to busking—and therefore the question from my noble friend was entirely legitimate. The reality is that the number of households accepted as homeless has risen by over a third since 2010, while the number of people who sleep rough has increased by over 50%. The Minister seeks to tell us about all the measures the Government are going to take, but could he tell us why they allowed this situation—the increase since 2010 in the number of homeless people and the number of people sleeping rough—to arise in the first place?

Lord Ahmad of Wimbledon: The noble Lord should also look at the record prior to 2010 and what his own party did. We have taken forward the biggest housebuilding project that we have seen for decades. There is an acute problem as regards the housing crisis and people sleeping rough on our streets; we are seeking to address it, but we must work hand in glove with local authorities.

Baroness Farrington of Ribbleton (Lab): My Lords, will the Minister care to comment on the availability—and on government policy on the availability—of housing for homeless people? In my experience, few of the people I have met who are homeless and sleeping on the streets will benefit from the Government’s housing policy, which is to build lots of houses, including those at £400,000. How much do the Government believe should be spent specifically on the homeless?

Lord Ahmad of Wimbledon: The Government have taken a raft of different initiatives on building affordable houses and a raft of different initiatives to encourage home ownership. The Rent to Buy scheme is another good example of what the Government have looked towards—ensuring innovative solutions to the housing challenges people face, including those who are looking to buy a home for the first time.



3 pm

Asked by Baroness Tonge

To ask Her Majesty’s Government whether they plan to recognise Palestine as a state.

The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con): My Lords, the United Kingdom retains the right to recognise a Palestinian state when we judge it can best help bring

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about peace. We strongly believe that achieving a negotiated solution to the conflict is a priority and that bilateral recognition alone would not end the occupation.

Baroness Tonge (Ind LD): I thank the Minister for that Answer—the usual answer, if I may say so. Is she aware that, at the United Nations General Assembly on 22 December last year, the UK representatives voted for a resolution that recognised the,

“Permanent sovereignty of the Palestinian people in the Occupied … Territory, including East Jerusalem … over their natural resources”?

Could the Minister please explain to the House how the Palestinians can have this control unless we follow the example promised by the French Government in the last 24 hours since their offer of talks has broken down? Can we not do this and recognise Palestine as a sovereign state and persuade other countries to do so? Will the Minister also explain how, in the mean time, the Government will seek to protect the few remaining natural resources that the Palestinians have before Israel takes them all?

Baroness Anelay of St Johns: My Lords, the noble Baroness refers to a United Nations resolution. She may be aware that our team in the United Nations, led by Ambassador Matthew Rycroft, negotiate the best terms they can with regard to resolutions so that the language is as close to being realistic as possible, but there always have to be compromises on those matters. We did so against the background of maintaining the policy that I set out in my first Answer: that it is important that we have a negotiated solution. That is when there would be a two-state solution, and that would be followed by a discussion about the ownership of resources. Sadly, we are not in that position yet. I note what the noble Baroness says with regards to the reports today that the French Foreign Minister, Monsieur Fabius, has announced that the French will try to organise an international conference on the Middle East peace process in the coming weeks. Whatever conferences we have, and however welcome an exchange of views, the only thing that will bring about peace is for both Israel and the Palestinians to come together to agree those terms; terms that I have set out in detail on previous occasions.

Lord Polak (Con): My Lords, history teaches us that, when an Arab leader has direct talks with Israel, the result is territorial compromise and peace—look at Jordan and look at Egypt. Does the Minister agree that, instead of political point-scoring, Members of this House—I draw the attention of the House to my non-financial interests—could use their influence with the leadership of the Palestinian Authority to encourage them to stop inciting their young people, and really help the Palestinian people by encouraging them to return to the negotiating table without delay?

Baroness Anelay of St Johns: My Lords, all those who have the interests of peace at heart will want to bring together the sides that disagree to negotiate. I notice that, just recently, Secretary-General Ban Ki-Moon made the following comment,

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“as we continue to uphold the right of Palestinians to self-determination, let us be equally firm that incitement has no place, and that questioning the right of Israel to exist cannot be tolerated”.

Lord Grocott (Lab): My Lords, we all like the language of a negotiated solution, and sooner or later that is what must happen. But does the Minister agree that there is an increasingly uncomfortable comparison between the way in which the international community responds when Russia is involved in breaches of international law by violating its boundary with its neighbouring country and the response of the international community towards Israel, which for more than 50 years has violated international law by the occupation of a neighbouring country, by the building of a wall and by the continuing illegal occupation that makes a two-state solution nearly impossible? Is it not time that we had a more robust response to these flagrant breaches of international law?

Baroness Anelay of St Johns: My Lords, the noble Lord is right to point out that the Israeli occupation of the Palestinian territories flouts international law. We have made that clear in the past. We have urged Israel to obey the law and have pointed out that it should withdraw. The position that Israel takes on occupying Palestinian territories makes it more difficult to achieve the two-state solution that we wish to see.

Lord Pannick (CB): My Lords, did the Minister see the report in the Times last week that two Palestinian journalists in Gaza had been arrested and tortured by Hamas because they had written newspaper articles critical of that administration? Can she assure the House that there is no question of recognising a Palestinian state associated with Hamas until basic civil rights are respected?

Baroness Anelay of St Johns: My Lords, we have made it clear that Hamas needs to stop its aggressive actions and sending its rockets into Israel and that the Palestinian Authority needs to take responsibility and control of the administration in Gaza to avoid incidents such as that described by the noble Lord.

The Lord Bishop of Norwich: My Lords, does the Minister agree with the position taken in October 2014 by the Catholic Bishops’ Conference of England and Wales and the Church of England bishops that,

“it is the reasonable aspiration of all peoples to belong to a state and enjoy the merits of full and active citizenship”?

Although the security of Israel is an absolute requirement, would not a principled recognition of Palestinian statehood facilitate rather than hamper renewed negotiations?

Baroness Anelay of St Johns: My Lords, I do not believe that it would. It would not of itself bring about what we need, which is an agreement for a two-state solution. It would be throwing away a key negotiating card.

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Access to Medical Treatments (Innovation) Bill

First Reading

3.07 pm

The Bill was brought from the Commons, read a first time and ordered to be printed.

Immigration Bill

Immigration Bill

Committee (3rd Day)

3.09 pm

Relevant documents: 7th Report from the Constitution Committee, 17th, 18th and 19th Reports from the Delegated Powers Committee

Clause 17: Powers to carry out searches relating to driving licences

Amendment 160

Moved by Lord Paddick

160: Clause 17, page 18, line 9, at end insert “and the authorised officer has reasonable grounds to believe the power should be exercised urgently.”

Lord Paddick (LD): My Lords, Amendment 160 is tabled in my name and that of my noble friend Lady Hamwee, and we also have Amendments 161 and 162 in this group. We have considerable misgivings about the powers provided under the clause that I will address in a moment. Under subsection (3)(c) an authorised officer who is not a constable can enter and search premises for a driving licence only if a senior officer, such as an immigration officer not below the rank of chief immigration officer, has given authority in writing. However, subsection (4) states that that written authority,

“does not apply where it is not reasonably practicable for the authorised officer to obtain the authorisation of a senior officer before exercising the power”.

Our amendment would introduce the additional condition that,

“the authorised officer has reasonable grounds to believe the power should be exercised urgently”.

It may not be reasonably practical for the authorised officer to obtain the authorisation of a senior officer simply because it is not possible to make contact with the senior officer whether because of communication issues or that no senior officer is available immediately. In such cases the authorised officer should make a decision as to whether there are reasonable grounds to believe that it is necessary to exercise the power there and then. In the absence of any urgent need, the authorised officer should have to wait until higher authority is obtained from the senior officer.

Amendment 161 refers to proposed new Section 25CC(5) in circumstances where a driving licence has been seized and retained by the Home Office, which under paragraph (a) is until a decision is taken to revoke it. Our amendment seeks to place a time limit on that decision so that a driving licence cannot be retained for longer than one month from the date of seizure unless it is being revoked. It does not seem reasonable to us that someone whose driving licence is not in the end revoked should have his licence withheld from him indefinitely while a

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decision is made. Amendment 162 seeks clarification of subsection (5)(b) of the proposed new section. Clearly a driving licence that is being held by the Home Office must be retained until it has been revoked, until the time limit for lodging an appeal has passed, or until the appeal is determined. But it is not clear what is meant by retaining a driving licence if it is “subsequently revoked”. Can the Minister tell us what is intended by that phrase; what is it subsequent to?

Also included in the group is the intention to oppose the question that Clauses 17 and 18 stand part of the Bill, and I wish to address our opposition to both of these clauses. As I mentioned at Second Reading, when I was a police constable in the years leading up to the Brixton riots in 1981, police officers would routinely stop motor vehicles being driven by black men in particular and frequently arrest them on suspicion that they may be illegally in the country. The usual reason given was that they were a suspected overstayer. These arrests happened routinely simply because the person who was being stopped was evasive or did not appear to be co-operative. Together with the use of the offence of being a suspected person loitering with intent to commit an indictable offence under the Vagrancy Act 1824, commonly known as “sus”, and the disproportionate use of stop and search, a problem that continues to this day, relations between the police and the black community deteriorated to such an extent that the Brixton riots, or uprising, was the result. A conscious decision was taken by senior police officers in the light of such deterioration that the police service would no longer proactively enforce immigration law. Instead, police officers would help and support the Immigration Service if called upon to do so. The arresting of black drivers on suspicion of being overstayers stopped, to the considerable benefit of police/community relations.

Clause 18 creates an offence of driving when unlawfully in the United Kingdom. A person found guilty can receive a sentence of imprisonment, a fine or both, and the court can order the forfeiture of the car that was being driven by that person. It is police officers who have the power to stop motor vehicles and require the driver to produce their driving licence, not immigration officers. The burden of enforcing this part of the Bill will fall on police officers, and when I say “burden”, I mean it. The Government will want to see this law enforced. The police will come under pressure to proactively enforce immigration law for the first time in almost 30 years—30 years after the police service made a conscious decision to back away from proactive immigration law enforcement because of the damage that it was causing to police community relations.

3.15 pm

The Minister may say, “Well, that was 30 years ago and a lot of progress has been made between the police and certain sections of the community in terms of police community relations”. I would say to him that the National Black Police Association—the current National Black Police Association—is also opposed to these clauses. It cites a survey of more than 10,000 drivers, conducted by Her Majesty’s Inspectorate of Constabulary and published in March last year, showing that 7% to 8% of white drivers responded that they

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were stopped in their vehicles by the police in the previous two years, whereas 10% to 14% of black drivers were stopped. Black drivers were more likely to have their vehicle searched and not to be given reasons for being stopped. Meanwhile, white drivers were more likely to be arrested and prosecuted than black drivers. This suggests that black drivers are more likely to be stopped by the police for no reason, and 73% of black respondents believe that the police unfairly target people from black and minority ethnic backgrounds for traffic stops. As I said, that survey was conducted by Her Majesty’s Inspectorate of Constabulary and published in March last year.

Liberty, in its briefing on the Bill, concludes that as there is an existing power to stop vehicles without reason, so added to this by the Bill, there would be nothing to prevent routine stops to ascertain immigration status which, as I have said, was what happened 30 years ago, and which caused so much damage to police community relations. An issue that we did not have 30 years ago was racial profiling of people who look like Muslims, on suspicion that they may be terrorists. In addition to young black men, in particular, being stopped driving by the police, we might add this time round, if this clause comes into effect, dark-skinned, bearded people also being targeted by the police in this way.

It will not be white Australians, New Zealanders, Canadians or Americans who will be stopped by the police to establish whether they are driving unlawfully in this country. If this law makes it on to the statute book and the police come under pressure to produce results, the majority of people stopped on suspicion of this offence will be black, British people who were born in this country. The people least likely to carry a document to prove that they are not an illegal immigrant are British people who were born here. What happens then? Fear not, we have Clause 17: “I am sorry, officer, I don’t have my driving licence on me”. If the officer believes that the driver is being evasive or obstructive, or that he may well be illegally in the country, he can then,

“enter and search any premises … occupied or controlled by the person”,

to search for his driving licence. A completely innocent British-born driver could end up having his home entered by the police without a warrant to search for his driving licence. While most people are given a form and seven days to produce their driving licence, we could end up in a situation where innocent, British drivers, suspected of being illegal immigrants, can have their home searched by the police.

These powers are disproportionate and could have significant impact on what are in some parts of the country already strained relations between the police and the black community. They should not be part of this Bill. We have seen recently the Home Secretary take bold steps to try to address the issue of disproportionality and stop and search—for example, changing the provisions of Section 44 of the Anti-terrorism, Crime and Security Act, to ensure that there is reasonable suspicion before somebody can be stopped and searched on suspicion of terrorism, whereas before no suspicion was required. Yet, the Bill seems to be going in the opposite direction.

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Only yesterday the Prime Minister announced an inquiry by David Lammy into, among other things, why black people are disproportionately represented in the criminal justice system in general and in the prison population in particular. I can give Mr Lammy a heads up on this: that issue begins with the disproportionate stopping and searching of black people. These clauses are likely to make that disproportionality worse. I beg to move.

Baroness Lawrence of Clarendon (Lab): My Lords, I shall speak on the question of whether Clauses 17 and 18 should stand part of the Bill. Clause 18 proposes the creation of an offence of driving when unlawfully in the United Kingdom. Clause 17 proposes related search and seizure powers to be used by the police, immigration officers and others. I shall look at the practical, real-life implications of the driving provisions set out in the Bill.

We already have a law—Section 163 of the Road Traffic Act 1988—which allows for road traffic stops to be conducted by police without a reason. Traffic stops affect BME people disproportionately and are seen by BME drivers as a discriminatory tool. As the noble Lord, Lord Paddick, mentioned, a survey conducted by HMIC in 2014 found that 7% to 8% of white drivers had been stopped in their vehicle in the last two years, compared with 10% to 14% of black and minority ethnic drivers. Some 70% of black respondents agree or strongly agree that the police unfairly target people from an ethnic minority for traffic stops.

This is an incredibly serious problem for the police, who must command the trust and confidence of the community that they serve. But rather than addressing the issue, the Government intend, through the powers in the Bill, to pave the way for routine immigration checks during traffic stops to ascertain whether an individual is driving while an illegal immigrant. Noble Lords do not need to take my word for it: Met Chief Superintendent David Snelling told the Public Bill Committee in the other place that this is how he thinks the power would work in practice.

It is not hard to foresee the impact of such a move on police/community relations: police conducting traffic stops—which disproportionately affect BME drivers—and checking on their immigration status; police and immigration officials interchangeably searching individuals and their premises for driving licences on the basis that the individual is suspected of being here unlawfully. The Government’s Policy Equality Statement says that a decision to search a driver or their premises cannot be based on race, but, as the Race Equality Foundation points out:

“This ignores current evidence on car stops”.

It is small wonder that, as the noble Lord, Lord Paddick, said, the National Black Police Association warned that the Bill could return the UK back to,

“the bad old days of the SUS laws”,

and create,

“the conditions for making every person of colour in the UK a priori suspect, and a potential illegal immigrant”.

Many members of the House have lived through times when relations between the police and BME communities were in a critical condition. It is often in

1 Feb 2016 : Column 1593

the area of powers to stop, search and question individuals that the spectre of discrimination has grown up. In his 1981 report, Lord Scarman identified unquestionable evidence of unfair stop and search being used on black people under the notorious sus laws. In 1999, the Macpherson report identified a clear core of racial stereotyping in stop and search, noting:

“If there was one area of complaint which was universal it was the issue of ‘stop and search’. Nobody in the minority ethnic communities believes that the complex arguments which are sometimes used to explain the figures as to stop and search are valid. In addition their experience goes beyond the formal stop and search figures recorded under the provisions of the Police and Criminal Evidence Act, and is conditioned by their experiences of being stopped under traffic legislation, drugs legislation and so called ‘voluntary’ stops”.

The Government argue that this new offence is about cracking down on unlawful immigration but it will affect countless British citizens. Inevitably, black and Asian Brits will bear the brunt. The enforcement of this offence, together with lax traffic powers, will lead to discriminatory interference with the right to private life of these citizens.

Provisions allowing for intrusive, discriminatory stops have continued to be one of the greatest flashpoints for police and BME communities, but in recent years significant progress has been made. The Home Secretary has played her part by taking positive steps to reduce the discriminatory impact of stop and search. In 2014, she told Parliament that,

“nobody wins when stop-and-search is misapplied. It is a waste of police time. It is unfair, especially to young, black men. It is bad for public confidence in the police”.—[

Official Report

, Commons, 30/4/14; col. 833.]

She is right, and I hope that she can be persuaded to bring the same insight to the provisions of this Bill.

Baroness Afshar (CB): I support the amendments to Clause 17, not least because alienating youths born and bred in this country results in their choosing to leave it to fight with groups that accept them, be it in terms of their creed or their colour. The measure will create active enemies of this country. It is unwise to do that to young people raised in this country with hope who then find themselves treated as terrorist suspects.

The Lord Bishop of Southwark: My Lords, I share some of the concerns of the noble Baroness, Lady Lawrence, who sketched out the problems with enacting this clause. As the Government rightly tell us, reasonable suspicion is a well-established precept in English law and policing practice. However, this does not mean that it is infinitely elastic in its application. A prior question needs to be asked when legislating: is it applicable in this circumstance, and with what effect?

This House is entitled to ask the Minister to consider that there will be circumstances where to exercise such judgment will involve the very real danger of identifying individuals who have leave to remain or who are not even subject to immigration control. Surely that would be an intolerable imposition. We know all too well that our fellow citizens do not take to being stopped for unfounded reasons.

Thus I return to the question I asked at Second Reading, which was not to query the idea of reasonable suspicion in all its existing applications but simply to

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ask what will constitute reasonable suspicion in these circumstances. A concrete example from the Minister would help.

The peril of such a path is made all the more obvious by the knowledge that alternative powers already exist, without this sort of provision. I trust that the Government will listen to the concerns expressed in this House about this clause and remove it from the Bill.

3.30 pm

Baroness Sheehan (LD): My Lords, I rise to lend support to the noble Baroness, Lady Lawrence, and to my noble friend Lord Paddick, in opposing the Questions that Clauses 17 and 18 stand part of the Bill. The two clauses extend stop, search and seizure powers—powers that have a long history of being acknowledged as contributing to racial disharmony and breakdown in community cohesion. In 1981, Lord Scarman, in his reports on the Brixton riots, concluded that mass use of stop and searches were a direct cause of the riots.

As recently as 2014, announcing reforms to stop and search under the Police and Criminal Evidence Act, the Home Secretary, Theresa May, said that,

“when innocent people are stopped and searched for no good reason, it is hugely damaging to the relationship between the police and the public. In those circumstances it is an unacceptable affront to justice”.—[

Official Report

, Commons, 30/4/14; col. 831]

BME people in Britain today suffer such affronts to justice usually with a certain amount of stoicism. However, this Bill seeks to expand powers of stop, search and seizure. It is inevitable—and I would go as far as to say it is the Government’s intent—that the number of stop and searches of those from visible ethnic minorities would increase under the powers contained in this Bill.

There is a great deal of documented evidence that current car stops are disproportionately targeted at those from BME backgrounds. I refer to the survey carried out by Her Majesty’s Inspectorate of Constabulary, already cited by my noble friend Lord Paddick and the noble Baroness, Lady Lawrence. Rather than going over the figures again, I draw attention to the sample size of the survey—more than 10,000—and contrast that with the evaluation of the pilot carried out in the West Midlands, on which the Government are basing their evidence for rolling it out nationally which has happened today.

The Race Equality Foundation expresses concern that the Government have produced no policy equality statement on these stop, search and seizure provisions, and I share that concern. I hope that the Minister will address that. Such respected bodies as Liberty and the National Black Police Association have expressed deep concerns about the potential of Clauses 17 and 18 to foster distrust and disharmony between the police and the public. Both organisations express regret that the good work of the Home Secretary to date to undo some of the harm associated with previous inappropriate use of stop and search will be undermined by the proposals under Clauses17 and 18.

It seems that a great deal of power already resides with the Home Office to revoke the licences of illegal immigrants, without resort to a measure that would exacerbate the situation and damage the public’s

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relationship with the police, who, as the NBPA rightly says, would become the “whipping boy” for immigration officers.

If the Government wish to tighten these measures further, perhaps they would be better to consider tightening the issuance and monitoring of licences by the DVLA, and extending the same responsibilities and duties to that body as they are seeking to deliver to private landlords.

Lord Alton of Liverpool (CB): My Lords, I hope the Minister will listen, as I know he usually would, to the contributions that have been made on all sides of your Lordships’ House, but especially to those of the noble Lord, Lord Paddick, and the noble Baroness, Lady Lawrence.

As those contributions were being made, my mind went back to those riots in 1981, of course not just in Brixton but in Toxteth in Liverpool. I had been a young Member of Parliament for about 18 months. In the weeks before the riots occurred, I had raised on the Floor of the House in another place the dangerous relationship that had been deteriorating between police and public in that part of Liverpool. Sir Kenneth Oxford was then the chief constable on Merseyside and he took a very provocative view towards the black community in that neighbourhood. I was not entirely surprised when, on a hot summer’s night in 1981, I was asked to come urgently to Upper Parliament Street, where two and a half days of rioting began, in which 1,000 policemen ended up in the local hospital. I dread to think what would have happened if guns had been so readily and easily available on the streets then as they often are now.

As a result of those riots, I visited the home of the young man who had been involved at the very outset, Leroy Cooper, who was a constituent of mine. I sat with him and his father as they described to me how the trigger had taken place on the street in Lodge Lane in Liverpool as an overzealous policeman confronted this young man. It was a traffic incident, which plays exactly into the amendments before your Lordships’ House today—not a car but a motorcycle—and, as a consequence of the anger that had been building up for some time, it erupted and riots occurred which had a devastating effect.

The overuse of stop and search powers at that time, which had been part of the incident, was set aside in the months and years that followed and a much different form of policing emerged. Bernard Hogan-Howe, who became the assistant chief constable on Merseyside, played a leading part in the introduction of strong community policing, having learned the lessons of what had gone before. It would be a tragedy if we were now to turn the clock back. I hope therefore that the Minister will think very carefully about and look at the terms of this very good amendment, Amendment 160, which says that,

“the authorised officer has reasonable grounds to believe the power should be exercised urgently”.

It does not take away the powers. As the right reverend Prelate said, those powers already exist in plenty of statute if there is a need to intervene. But something that could be used and seen as a deliberate attack on

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one part of our community will do nothing to enhance community relations. It will not foster good policing in our cities and could actually have a deleterious effect.

For all those reasons, I hope that the Minister will think very carefully about the arguments that have been deployed today. If he cannot agree today, I hope he will at least hold meetings with Members of your Lordships’ House between now and Report to see whether this could be modified.

Lord Rosser (Lab): My noble friend Lady Lawrence of Clarendon has eloquently set out the reasons for her concerns about Clauses 17 and 18, which create an offence of driving when unlawfully in the UK and give powers to carry out searches relating to driving offences. The Bill provides a power for an authorised officer—police or immigration officers or third parties designated by the Secretary of State—to search premises, including a vehicle or residence, where the officer has reasonable grounds for believing that an individual is in possession of a driving licence, is not lawfully resident and the licence is on the premises.

As has already been said, the National Black Police Association has expressed concern at the potential of these provisions to undermine vital work promoting good relations between police and the communities they serve, saying that they could result in a return to the days of sus laws and the police being seen as part of the Immigration Service. Evidence indicates that black and minority ethnic drivers are around twice as likely to be stopped as white drivers.

The situation will not have been made any easier by evidence given by the police to the Commons Public Bill Committee when, as my noble friend Lady Lawrence of Clarendon said, a Metropolitan Police chief superintendent explained that they already had a power to stop any vehicle to ascertain ownership and driver details and, having done that, they would then inquire into whether the driver had the authority to drive that vehicle. He went on to say that, to fall within the new provisions in the Bill that we are debating, the police would then most likely need to do a further check with the immigration authorities, which at that stage would give them reasonable grounds—but not necessarily proof—based on a search of the immigration database to believe that the person driving was an illegal immigrant. In other words, these clauses relating to driving could effectively result in adding a routine immigration check into a traffic-stop regime which many in black and minority ethnic groups already regard as operating in a discriminatory fashion.

The points that have been made by my noble friend Lady Lawrence, the noble Lord, Lord Paddick, the right reverend Prelate the Bishop of Southwark and others about the impact of these two clauses on fostering distrust and disharmony between the police and the public require a full and considered response from the Government, including the Government’s assessment of the impact on community cohesion if they disagree with what has been said on these proposed measures. This is yet another potential example in the Bill of measures that are intended by the Government to encourage illegal migrants to depart, by making it harder for them to live and work here, having highly

1 Feb 2016 : Column 1597

likely unintended adverse consequences—this time for the role of the police, community relations and racial harmony.

The Minister of State, Home Office (Lord Bates) (Con): My Lords, I thank the noble Lord, Lord Paddick, for moving his amendment and giving us the opportunity to discuss these important matters. Perhaps I may make some general remarks on the clauses, setting out the Government’s position, and then seek to respond to the very legitimate questions raised by noble Lords.

Clause 17 provides the power for an authorised officer, such as an immigration or police officer, to search people and premises and seize a UK driving licence held by a person not lawfully resident in the UK. It is envisaged that the power will be used primarily by immigration officers as an adjunct to their normal enforcement activities where immigration offenders are apprehended in the community. This represents the best opportunity to remove from circulation UK driving licences which are being used by illegal migrants. This power can be exercised only where there are reasonable grounds to conduct a search: it cannot be used to randomly target members of the public. The power contained in the clause will be used by the police only as a part of targeted, intelligence-led policing.

The Government are clear that this clause will not undermine their work in reforming police stop-and-search powers, nor will it result in random stop and searches being conducted by immigration officials. Home Office Immigration Enforcement officers would use the power where they, for example, visit a property or place of employment in response to intelligence received. With the exception of a constable, authorised officers must generally also obtain the consent of a senior officer before conducting a search of premises, unless it is not reasonably practicable to do so. A seized licence must be returned to the holder if a decision is taken not to revoke it, or where the holder successfully appeals against a revocation.

Amendment 160 would therefore add an extra constraint on when the power to enter premises to search for a driving licence may be used without the authorisation of a senior officer. This is unnecessary. Clause 17 provides that before searching premises an authorised officer must obtain the authorisation of a senior officer, unless it is not reasonably practicable to do so. Amendments 161 and 162 are also unnecessary. The arrangements introduced by the Immigration Act 2014 for the revocation of UK driving licences held by illegal immigrants are well-established and operating effectively. They are not subject to significant delays, which would warrant introducing hard and fast time limits for the retention of seized licences pending revocation action.

Amendment 162 would limit the ability to retain licences if they are revoked after being seized. This conflicts with one of the main aims of the clause: namely, to remove revoked licences from circulation. It is already a criminal offence under the Road Traffic Act 1988 to retain a revoked licence but, despite this, only a very small proportion are returned.

1 Feb 2016 : Column 1598

3.45 pm

Clause 18 creates a new offence of driving a vehicle on a road or other public place when the driver of the vehicle is not lawfully in the UK and provisions regarding the detention and forfeiture of vehicles used in the offence. A person guilty of this offence will be liable on summary conviction to imprisonment of up to six months or a fine. Where a person is arrested for this offence, the vehicle believed to be used in the commission of the offence may be detained. This clause also provides the Secretary of State with the power to make provision, by regulations, about the circumstances in which a vehicle may be released from detention. On conviction for the new offence, the court may also order forfeiture of the vehicle used. A person with an interest in the vehicle may however apply to the court to make representations as to why the vehicle should not be forfeited. No forfeiture order can be made unless interested parties have been given the opportunity to make their representations.

Now I come to the main concerns in the debate, which surround how the police are going to use the powers being provided. In response to the noble Lord, Lord Paddick, and the noble Baroness, Lady Lawrence, the Government are clear that this provision will not undermine reform of police stop-and-search powers and will not undermine community cohesion. The police will first have to have cause to stop a vehicle. At this point, I turn to the point raised by the right reverend Prelate the Bishop of Southwark, who asked for examples of those circumstances. Reasonable suspicion may occur where a vehicle has been stopped for a suspected driving offence, the police have checked the circumstances of the driver, as appropriate, and those checks have revealed a match against a Home Office record. The search is therefore intelligence-led, not a random search of a member of the public. I draw noble Lords’ attention to the policy equality statement which accompanies this Bill and sets out very clearly in section 3 what the power to search for UK driving licences means in practice. The cause cannot be based on a person’s race or ethnicity. The stop must be for an objective reason. Once a vehicle has been stopped, the police check the circumstances of the driver. The provision will not therefore lead to stop and searches of vehicles in order to check the immigration status of the driver.

A number of noble Lords have recognised the significant steps forward which the Home Secretary has taken in seeking to improve the way stop and search is conducted. That is to address the type of scenario that the noble Lord, Lord Alton, outlined, which occurred 30 years ago in Liverpool. This is what she said at the National Black Police Association’s conference in October 2015:

“We made sure officers are clear what ‘reasonable grounds’ of suspicion are, so that its use is both legal and reasonable—because Her Majesty’s Inspectorate of Constabulary said that over a quarter of stop and searches were unlawful. We brought in much greater transparency and required police forces to record the outcome of each and every stop and search—because only one in ten stop and searches led to an arrest. And we gave communities the ability to hold their police force to account through a ‘community trigger’, which means that the police must explain how stop and search powers are being used should concerns be raised. And I am delighted that the

1 Feb 2016 : Column 1599

43 police forces in England and Wales, plus British Transport Police, have all voluntarily signed up to our Best Use of Stop and Search Scheme”.

Moreover, the use of stop and search fell sharply in 2014-5. It was down by 40%, compared with 2013-14, to 540,870. This continues the recent downward trend. This is the largest year-on-year fall and sees the lowest number of stop and searches in a year since the current series began in 2001-02. The number of Section 60 stops, for which reasonable suspicion is not required, fell by 73%, compared to 2013-14, to 1,082 stops. Moreover, the Government announced a number of measures in 2014. Among them were: commissioning the College of Policing to review national stop-and-search training; including stop and search in the new HMIC PEEL inspections; commissioning HMIC to conduct a thematic inspection into other stop-and-search powers; introducing a strictly voluntary Best Use of Stop and Search Scheme to create more transparent and accountable use of stop and search; revising the PACE code of practice to make clear what constitutes reasonable grounds for suspicion—the legal basis for stop and search; mapping stop and search on Police.uk; exploring quick and efficient stop and search; and recording on the emergency services network.

The noble Lord, Lord Paddick, asked what “subsequently revoked” means in Clause 17. Clause 17 provides the power to seize unrevoked licences. Subsequently revoked means revoked after seizure.

A number of noble Lords referred to the comments by Chief Superintendent David Snelling in another place. In his evidence to the Public Bill Committee last year, he indicated that the police would use this power in the context of intelligence-led policing. If police have cause to stop a vehicle, they may then check the circumstances of the driver. If the driver is found to be an illegal migrant, their vehicle may be detained under these powers. In applying these new powers, the police will first have to have cause to stop a vehicle; for example, for a suspected motoring offence. They may then check the circumstances of the driver. There are, therefore, a series of objective steps that will be followed. This clause will not result in the police randomly stopping cars in order to check the immigration status of the driver. In the light of these points, I hope the noble Lord will agree to withdraw this amendment at this stage.

Lord Alton of Liverpool: Will the noble Lord tell your Lordships what will be done then to monitor whether we return to the stop-and-search regime that he described, where only one in 10 stops had any real legitimacy? Will there be accountability? Will statistics be published every year so we know how often the power has been used and how often it has been successful?

Lord Bates: Under one of the proposals introduced for stop-and-search powers, we are now collecting those data. The ability to make the statements that I have, about how stop and search has actually been reduced, is a very good thing. This is such a sensitive area but also one where I believe a significant amount of good work has been done in policing. We would not want anything in this to in any way undermine that wider effort to improve community cohesion and trust between the police and the communities which they

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serve. I would be very happy to organise a meeting with interested Peers between Committee and Report to explore this area further, to try to offer further reassurances and to hear more about any specific concerns.

Lord Kennedy of Southwark (Lab): I do not think the noble Lord has really answered the concerns raised by my noble friend Lady Lawrence or by the noble Lord, Lord Paddick, who was an experienced police officer in the Brixton area—he talked about the problems of the Brixton riots and so on. Whatever the intentions of the provisions, there are real concerns about what will happen in practice. Could he say a little more about that?

Lord Bates: The noble Lord is right to point to the immense experience of many noble Lords who have spoken, such as that of the noble Lord, Lord Paddick, in policing and of the noble Baroness, Lady Lawrence, in representing victims of crime over many years. That is why I am suggesting, in the light of the concerns that have been expressed, that we ought to look at this. Sometimes there is an overfocus on this particular element, without recognising the wider context of the Bill. This is not being targeted simply through stop-and-search powers but is consistent with the wider aim to reduce the ability of people who are here illegally to live a normal life while in the UK—such as by having bank accounts, being able to rent properties, being able to work and gain employment, or being able to gain a driving licence. In the wider context, it fits, but there are some specific concerns here. It is a very sensitive area. Therefore, I am very happy to meet noble Lords to discuss it further.

Lord Paddick: My Lords, I thank all noble Lords who have spoken, particularly the noble Baroness, Lady Lawrence of Clarendon. Our Amendments 160 to 162 are technical in nature, and so was the Minister’s response, so I will read Hansard with interest. The major issue is with Clause 17, where the Minister has not answered our concerns. He talked about justification for this being where the police stop somebody and then a match is found against a Home Office record. That implies that the police would have to carry out an immigration check on the individual to establish whether an immigration offence had been committed. They are being pushed into proactively enforcing immigration law in a way that they have not previously.

Lord Bates: Again, I defer to the noble Lord’s great experience, but I understand that that is part of normal practice when they establish the identity of the individual whom they have stopped for a suspected offence: that they try to establish that identity from the databases available to them.

Lord Paddick: My Lords, my understanding is that a routine check of the Home Office immigration database is not a normal part of a stop check.

The Minister says that the stop must not be based on race or ethnicity, but Her Majesty’s Inspectorate of Constabulary research, to which I and other noble Lords referred, shows that drivers are being targeted on that basis. The Minister has not given the Committee

1 Feb 2016 : Column 1601

any reassurance that things will be different under these powers. The Minister said that the Home Secretary, in addressing the National Black Police Association, admitted that a quarter of stop and searches by police are unlawful. The clauses extend the powers of the police to carry out stop and searches.

In answer to the noble Lord, Lord Alton of Liverpool, the Minister talked about monitoring. The fact is that police stops of vehicles under the Road Traffic Acts are not routinely recorded. This is something that we need to look into in the meeting with the Minister and other interested noble Lords, which I very much look forward to.

The Minister has heard from both sides here: from someone who has been a victim of racism and from someone who has previous experience of enforcing immigration law as a police officer, and the detrimental effect that that has had on police-community relations. I was in the Brixton riots, I was behind a plastic shield, and I felt the anger of the black community in those days towards the police. I do not want us to go back to anything like that situation—particularly, as the noble Lord, Lord Alton, said, bearing in mind the greater availability of firearms these days. However, I am very grateful to the Minister for agreeing to meet us to discuss those things, and I beg leave to withdraw the amendment.

Amendment 160 withdrawn.

Amendments 161 and 162 not moved.

Clause 17 agreed.

4 pm

Clause 18: Offence of driving when unlawfully in the United Kingdom

Amendment 163

Moved by Lord Rosser

163: Clause 18, page 20, line 31, at end insert—

“( ) A person does not commit an offence under subsection (1) if, at the time of driving a motor vehicle, he or she had a reasonable belief that he or she had a legal right to remain in the United Kingdom and acted in good faith.”

Lord Rosser: As was said in the previous discussion, the Bill creates a new criminal offence where a person,

“drives a motor vehicle on a road or other public place at a time when the person is not lawfully resident in the United Kingdom”.

Of course, this new offence is part of the Government’s objective, as set out so clearly in the Explanatory Notes, of,

“making it harder to live and work illegally in the UK”,

to encourage those who do not have the appropriate immigration status to “depart voluntarily” and, where they do not do so, to use other measures in the Bill to “support enforced removals”. As with the new offence of illegal working for employees, however, there appears to be no defence for this new offence in relation to driving.

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The purpose of our amendment is to seek to provide such a defence for those prosecuted for driving while illegally in the UK if they can show that they had reason to believe that they had the legal right to be here. For example, there is the kind of person who has been sponsored but, unbeknown to them, there is something wrong with the sponsorship. As a result, they may fall foul of this new offence because they do not have the status they should, although they had reasonable belief of their right to be here and acted completely in good faith. Having a criminal record has serious implications for a person under immigration control, as such records can never be spent for immigration and nationality purposes, must always be declared and can form the basis for refusing a person leave, settlement or citizenship.

During the debate on this issue in the Commons, the Solicitor-General confirmed that effectively there was no defence for this new criminal offence. He said in response to a question on this point that a person who was prosecuted for this new offence would have the opportunity to,

“put in mitigation about their belief as to whether they were legally present in the UK, and that would affect any sentence that might be passed”.

Of course, that is about mitigation of sentence, not a defence to the charge for which a person can be sent to prison for 12 months. The second point made by the Solicitor-General was that,

“the Crown Prosecution Service will have guidance to ensure that migrants are not inappropriately prosecuted for this”,

new criminal offence. He went on:

“Should a migrant be able to genuinely show that they believed themselves to be legally present, the public interest test … would apply”.

In other words, as with the offence of illegal working for which there is no defence for those employed, it would be up to the Director of Public Prosecutions rather than Parliament to decide whether there is a defence against an offence for which there is no such provision made in the Bill.

In the Commons, the Government accepted and recognised the reasons behind this amendment but maintained that it was “very broad”, “very subjective” and would create scenarios in which,

“a defendant might claim they had reason to believe they were in the UK legally, simply because they had misunderstood the date on which their leave expired”.

Yet that is precisely the kind of question that the DPP and Crown Prosecution Service will presumably have to resolve in carrying out the Solicitor-General’s view that if a migrant can genuinely show that they believe themselves to be legally present, the public interest test would apply. Why then can the courts not be relied on to make appropriate decisions on reasonable belief, as called for in this amendment, and thus put a defence against this new offence in the Bill, debated and agreed by Parliament?

When the question was raised in the Commons debate about why this new offence was needed at all, since it appeared that the police were not seeking this new power and had not found any gap in their ability to deal with drivers who do not have regular status, the Solicitor-General, replying for the Government, said that there was,

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“a loophole involving people who are unlawfully here … who are driving with foreign-issued licences”.—[

Official Report

, Commons, Immigration Bill Committee, 3/11/15; cols. 307-08.]

For my benefit and to get it on the record, could the Minister spell out in detail what the existing problem is in relation to people who are here unlawfully and who drive with foreign-issued licenses, as opposed to those here unlawfully but driving with British driving licences or no driving licence at all, and which can be resolved only with the creation of this new offence? It would also be helpful if the Minister in his response—I hope it will be favourable but am not too sure of that—could place on record the Government’s assessment of the extent to which this new criminal offence of driving a motor vehicle while not lawfully resident in the United Kingdom will reduce the number of people not lawfully resident in the United Kingdom, and the basis on which that conclusion has been reached. I beg to move.

Lord Paddick: My Lords, I support the noble Lords, Lord Rosser and Lord Kennedy of Southwark, in their Amendment 163. It does not seem an absolute offence. Therefore, Amendment 163 seems reasonable.

We have Amendments 164, 169, 171, 172, and 173 in this group in my name and that of my noble friend Lady Hamwee. Amendment 164 would add to new Section 24D by placing a time limit on the time taken to make a decision whether to prosecute, when someone has had their vehicle detained, having been arrested for driving when unlawfully in the United Kingdom, of one month from the date of arrest. It could well be that the person arrested is a professional driver, who relies on the vehicle for their livelihood and, if that person turns out to be innocent of the offence, it could have serious implications for him if the vehicle is not returned to him promptly.

Amendment 169 is designed to restrict the ability to detain the vehicle if it belongs to a third party. Could the Minister clarify whether it is intended to detain vehicles innocently lent to others who are subsequently found to be in the UK illegally?

Amendments 171, 172 and 173 are to query the issue of all premises warrants, in new Section 24E(6)(b) and 24E(7), to search any premises owned or controlled by the person arrested for driving illegally to detain the car he was driving—particularly, as stated in new Section 24E(10), when such an all premises warrant cannot be issued in Scotland. Can the Minister explain why such a wide-ranging warrant is necessary in England and Wales but not in Scotland?

The Government also have Amendments 174 and 175 in this group, which widens the power even further, not just to all premises but not restricting such a power to a constable only, which is what was in the Bill originally. Surely, the power is broad enough as it is.

Lord Bates: My Lords, I have a couple of amendments in the group, so I shall speak to those first and then turn to the amendments in the names of the noble Lords, Lord Rosser and Lord Paddick.

The government amendments in this group relate to the Secretary of State’s powers to make regulations governing the detention of vehicles used in committing the new offence of driving when unlawfully in the UK

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and to the criminal justice procedure for the offence in Scotland. Amendments 165 to 168 remove unnecessary references to the procedure applicable to solemn criminal procedure in Scotland, as opposed to summary procedure, since the offence is a summary-only offence in Scotland. Clause 18 provides a regulation-making power covering the destination of any proceeds from a vehicle being forfeited and disposed of. Amendment 170 extends this power to enable regulations to specify the destination of the proceeds of charges made for detaining a vehicle. This is necessary to ensure that it is possible for the charges to cover the cost of detaining the vehicle to be paid either to the police or to a private contractor who is detaining a vehicle on behalf of the police. Clause 18 provides that all premises and multi-entry warrants can be applied for in Scotland by an immigration officer. Amendments 174 and 175 remove this possibility to ensure compliance with the Scottish criminal justice system, which does not currently include provision for either all premises or multiple entry warrants. I invite noble Lords’ support for these amendments at the point when they are moved.

I turn to the issues raised in the other amendments. Amendment 163 would have the effect of introducing a presumption that ignorance of immigration status provides a defence against conviction. The overwhelming majority of illegal immigrants will be fully cognisant of their status, having entered the country unlawfully or deliberately overstayed their visa. The requirements imposed by the amendment are open to vague and inconsistent interpretation and may provide a perverse incentive for some migrants to avoid communication with the Home Office and/or their legal representatives in order to establish the necessary doubt as to whether they could “reasonably” be expected to have known they were required to leave the UK.

Not all those who have entered the UK illegally or attempt to remain illegally in the UK have a history of communication with the Home Office. These are arguably the types of illegal migrant that this legislation is intended to deter. It would be a bizarre outcome should this group be better protected as a result of this amendment than those who have engaged with the authorities.

Where a migrant honestly believes that they have lawful status—for example, because they have been misled by a rogue legal adviser—this will be taken into account in considering whether prosecution would be appropriate in the public interest, and clear guidance to that end will be provided. Should a migrant be able to genuinely evidence that they believed themselves to be legally present, it is highly unlikely that it would be in the public interest to prosecute.

In light of these points, I hope that the noble Lords, Lord Rosser and Lord Kennedy of Southwark, will feel able to withdraw their amendment. Given the concerns about the strict liability nature of this offence, I may reflect further on this matter before Report.

The amendments proposed by the noble Lord, Lord Paddick, which are also in the name of the noble Baroness, Lady Hamwee, represent a significant potential weakening of the powers necessary to enforce the law and realise the intended benefits of this part of the Bill. Amendment 164 would require that a decision

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whether to charge a person with this offence or institute criminal proceedings be taken within a month of the arrest date. It is right that decisions on whether to prosecute a person for a criminal offence should be taken promptly, but the proposed amendment would introduce an arbitrary time limit and create an additional, and in our view unnecessary, administrative burden on the relevant agencies.

Amendment 169 would have the effect of disallowing the detention of the vehicle if it was under the person’s control. This would defeat the principal purpose of the clause, which is to prevent illegal immigrants driving on our roads. I understand that noble Lords may have intended to probe how the legislation will operate where an illegal migrant is apprehended driving a vehicle belonging to someone else, and that vehicle is detained by the police. That is not an unusual scenario in the context of motoring offences, and the Bill provides appropriate safeguards to deal with just that situation. I draw noble Lords’ attention to new Section 24D(8), which provides a power for the Secretary of State to make regulations about the release of a vehicle that has been detained. This power covers the circumstances in which a vehicle should be released to a third party who has an interest in it, such as the vehicle’s owner. Where a person has been convicted of the new offence created by Clause 18, the courts will have the power to order the forfeiture of the vehicle used in the offence. However, a third party with an interest in the vehicle may apply to the court to have the vehicle returned to them.

Amendments 171 to 173 would significantly reduce the potential success of a search for a motor vehicle by removing the ability to apply for an all-premises warrant to search multiple premises. The power contained in the clause to apply for an all-premises warrant, which allows any premises occupied or controlled by a specified person to be searched, is consistent with the Police and Criminal Evidence Act 1984, which applies in England and Wales, and the equivalent order in Northern Ireland.

The provisions within the clause and within wider immigration legislation specify that the search power may be exercised only to the extent that it is reasonably required. In order to issue an all-premises warrant, the justice of the peace needs to be presented with reasonable grounds that it is necessary. Limiting the scope of searches to premises specified at the outset of an inquiry negates any possibility of using evidence gained during the initial inquiry that provides reasonable grounds to believe that a further search of additional premises would be successful. In the context of this clause, for instance, this might have the perverse effect of preventing officers who have searched one vehicle lock-up from also searching the one next door, despite information suggesting that the vehicle is kept there.

4.15 pm

The noble Lord, Lord Rosser, asked why the offence is needed. This immigration provision is designed to make it harder for illegal migrants to remain in the UK. The provision operates in parallel with other measures contained within the Immigration Bill. Although illegal migrants may have their driving licences revoked

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under provisions contained in the Immigration Act 2014, we cannot revoke foreign-issued licences. This means that, currently, illegal migrants may drive legally if they hold a valid licence issued overseas. Clause 18 closes this loophole. I should also say that the Director of Public Prosecutions will produce guidance with input from my Home Office officials as to how the CPS will operate this with regard to this offence.

Given that response, I hope that the noble Lord will feel able to withdraw his amendment; I will move mine when the time comes.

Baroness Hamwee (LD): My Lords, I am emulating the noble Lord, Lord Kennedy, in retreating to the Back Benches to intervene at this late stage. I was glad to hear the Minister say that the Government would consider further the issues raised by the noble Lord, Lord Rosser, in Amendment 163. The Minister did not quite address—again, I emulate the noble Lord, Lord Kennedy—the point made by the noble Lord about the desirability or otherwise of dealing with the matter either through the CPS taking a view as to whether to prosecute or through sentencing. I hope that the Government will consider whether it might be better not to have a strict liability offence rather than leaving it to the CPS to consider whether it is in the public interest to prosecute in a particular case.

Lord Bates: My Lords, the strict liability nature of this offence is consistent with some similar driving offences. It is an offence, for example, to drive whilst disqualified or drive otherwise than in accordance with a licence, regardless of whether or not you realised that you were committing an offence. Therefore, we believe that that is consistent, but obviously, I will look carefully at what the noble Baroness has said and if need be I will respond in writing to her.

Baroness Hamwee: My Lords, you are more likely to know whether you are disqualified than whether there is a problem over leave to remain.

Lord Rosser: I thank all noble Lords who have taken part in this relatively brief debate, and I thank the Minister for his response and for his willingness to look again at this issue of absolute liability with regard to this new offence prior to Report.

My feeling at the moment is that the Government want a defence to be available, but want it to be exercised through the DPP and the Crown Prosecution Service through not prosecuting cases rather than putting it in the Bill. Of course, if the DPP and the Crown Prosecution Service came to the conclusion that they did not think that there was a case for somebody to say that they believed that they had the appropriate status to be in this country and was prosecuted, when it got to court the court would not have a chance to look at the grounds that had been put forward, because it would be an absolute offence and the individual would presumably be found guilty.

I hope that the noble Lord will look hard at this issue as to whether it is better for the courts to make the decisions on whether an individual has made a case that they genuinely believed they had the appropriate

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immigration status with regard to this offence. However, I am grateful for what the Minister has said and I beg leave to withdraw the amendment.

Amendment 163 withdrawn.

Amendment 164 not moved.

Amendments 165 to 168

Moved by Lord Bates

165: Clause 18, page 21, line 27, leave out “65 or”

166: Clause 18, page 21, line 28, leave out “discharged or”

167: Clause 18, page 21, line 34, leave out “on petition”

168: Clause 18, page 21, line 34, leave out “an indictment or” and insert “a”

Amendments 165 to 168 agreed.

Amendment 169 not moved.

Amendment 170

Moved by Lord Bates

170: Clause 18, page 22, line 8, at end insert—

“( ) as to the destination of payments made in compliance with such a condition;”

Amendment 170 agreed.

Amendments 171 to 173 not moved.

Amendments 174 and 175

Moved by Lord Bates

174: Clause 18, page 23, line 24, leave out “authorising entry on premises by a constable”

175: Clause 18, page 23, line 26, leave out “by a constable”

Amendments 174 and 175 agreed.

Clause 18, as amended, agreed.

Clause 19 agreed.

Amendment 176

Moved by Baroness Doocey

176: After Clause 19, insert the following new Clause—

“Ability to pay the immigration health surcharge incrementally

In section 38 of the Immigration Act 2014 (immigration health charge), in subsection (3)(c), after “State” insert “, including allowing the Surcharge to be paid in multiple payments”.”

Baroness Doocey (LD): My Lords, Amendments 176 and 177 seek to address two key issues affecting migrants not covered in the Bill. Amendment 176 deals with the immigration health surcharge, which came into effect last April. This requires migrants from non-European economic areas to pay an upfront health charge of £200 a year for each member of the family, including children, when they apply to have a visa renewed or submit an application for leave to remain in the UK. The charge is designed basically to cover any NHS care that the migrant or their family might need while their application is being processed, but it does not

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take account of how long each migrant has lived in the UK, their financial situation or whether they have dependent children. The people involved are largely industrious non-EEA citizens who have lived and worked in the UK for many years, but they face unsurmountable bills when they come to renew their visa. This causes major problems because almost half of them are in low-paid employment.

Irrespective of their financial situation, if they apply for leave to remain in the UK—which, if granted, is normally for a period of two and a half years—they must pay the health surcharge of £200 per person, per year, plus an administration charge of £649 per person. So a mother with three children would need to raise £2,000 to pay the health charge and a further £2,500 to pay the administration charge. That is a total of more than £4,500. Families unable to pay cannot renew their visa even in circumstances where an extension would be likely to be granted. So they are faced with a stark choice: they either find the money or they face destitution or deportation.

A simple, practical solution to this problem would be to allow these migrants to pay the health charge in instalments, rather than upfront. This would make a very significant difference. I urge the Government to consider this, not least because it would cost practically nothing to do it.

Amendment 177 seeks to extend the categories of migrant exempted from the health charge to cover people who have fled domestic violence, and dependent children. I recently visited the Cardinal Hume Centre in Westminster, which does outstanding work in this area. I met one of the many people there helping, who I will refer to as Ruth. Ruth was originally from Kenya and came to the UK with her husband on a two-year spouse visa. But after they had had their two children, her husband became both physically and sexually violent. Like most people in this situation, Ruth was terrified to do anything about it. But she eventually plucked up the courage to flee, and is now living in a domestic violence refuge. Her husband, of course, kept control of all the papers, so she had no idea that her documents had expired. So here we have a woman who has been abused; she has had to flee her home; she has two children to care for; she has got no job; and she has got no money. How on earth can she possibly raise the money in order to pay the health charge and application fee that her family need in order to renew her visa?

Women in these situations are extremely susceptible to exploitation. Their reliance on the charity of others can leave them vulnerable, with nowhere to turn when things go wrong. Enforcing this charge just strengthens the hand of the abusers, because people—women in particular—feel unable to escape their partner or their situation because of fears of deportation or destitution. At the moment, asylum seekers, victims of human trafficking and those under humanitarian protection are already, rightly, exempted from the health surcharge. The amendment would extend that exemption to abused parents and their children.

In theory, a fee waiver system is available for migrants unable to pay the visa application fee. However, in practice, it is simply not working. Many migrants are being denied this waiver despite significant evidence to

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show that they meet all the criteria; I have many examples that I would be happy to share with the Minister. So I hope that the Government will consider extending these exemptions to victims of domestic violence and their dependents. I beg to move.

Lord Alton of Liverpool: My Lords, I am a signatory to Amendments 176 and 177 so ably moved by the noble Baroness, Lady Doocey. Amendment 176 provides for the ability to pay the immigration health surcharge incrementally, as the noble Baroness explained, and Amendment 177 deals with exemptions from the immigration health surcharge.

As the noble Baroness said, the fee waiver system, which is supposed to protect migrants unable to afford visa application fees, is simply not working in practice. All the evidence suggests that the fee waiver system is currently failing the very families who need it most. By way of illustration I will refer to another case from the Cardinal Hume Centre which is within Division Bell distance of the Palace of Westminster, where we are meeting today. Among its other clients, the centre is working with a lone parent who has four children, all aged under 18. In that context, I would be grateful if the Minister, when he comes to reply, will consider the implications therefore of Article 24 of the United Nations Convention on the Rights of the Child, which states that parties who are signatories to that convention, as we are,

“shall strive to ensure that no child is deprived of his or her rights of access to such health care services”.

Also, perhaps he will comment on the applicability of this to all children, regardless of their immigration status, which is further emphasised in the Committee on the Rights of the Child’s General Comment No. 6, paragraph 12, which states that,

“the enjoyment of rights stipulated in the Convention are not limited to children who are citizens of a State party and must … be available to all children—including asylum-seeking, refugee and migrant children—irrespective of their nationality, immigration status or statelessness”.

In the case of this lone parent with her four children, the fees to extend her family’s leave to remain, including the health surcharge, will be in excess of £6,000. Due to the threat of destitution, that family is currently supported by a London local authority, but they are still struggling to meet essential living costs, yet the Home Office has refused the fee waiver application, despite significant evidence being provided by the centre and the client. Perhaps the Minister, like noble Baroness, Lady Doocey, would like to visit the centre to see that family for himself and talk to them so that the illustrations that the noble Baroness and I have given can be taken into account as he comes to consider these arguments between now and Report.

Sadly, these are just illustrative examples of many cases that could be raised today. If accepted, the admirable amendments tabled by the noble Baroness, Lady Doocey, would simplify the existing rules and give proper protection to all survivors of domestic violence, not just those who have been granted the destitute domestic violence concession.

The current protections and exemptions are far too narrow in definition. One unacceptable consequence is that professionals in the field report that many

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women remain deterred from leaving abusive relationships. As the Office for National Statistics points out in its



n: Violent Crime and Sexual Offences 2011-12

for England and Wales, published on 7 February 2013, women are “more likely” to be the victims of domestic violence than men and can be left in a precarious and dangerous situation as a consequence of abuse. It is therefore imperative to simplify the rules and exemptions in this regard as much as possible to ensure that all victims of domestic abuse, in particular women, are properly supported and protected.

The burden of sourcing the necessary money to pay the health surcharge causes many families and individuals great distress. Granting applicants the option of paying the fee incrementally, as the noble Baroness described, would be a significant step in easing the strain and worry on those affected by the charge. Incremental payments would be a particular benefit to domestic workers, who tend to be on low pay, typically no more than the minimum wage, and who have to save not only for the application fees but also for the health surcharge and other essential living costs. This leaves them in a very precarious and vulnerable financial position and inevitably can make them susceptible to exploitation as they may have little option but to borrow money from people with few scruples to pay the necessary fees upfront.

We should also consider the impact that the burden of sourcing this money has on the cohesion and durability of families. As research from the Tavistock Institute shows, financial stress and being in poverty add to the risk of family breakdown. The introduction of incremental payments would make the charge more manageable as applicants would not face the intense pressure of sourcing large sums upfront. Overall, these amendments represent a sensible, modest solution and a way of mitigating many of the unreasonable challenges that migrants encounter when seeking to extend their leave to remain. I am therefore very happy to support them.

4.30 pm

Baroness Lister of Burtersett (Lab): My Lords, I was pleased to add my name to these amendments. They strike me as being reasonable and modest, and a very strong case has already been made by the noble Baroness, Lady Doocey, and the noble Lord, Lord Alton. ILPA also makes the case for allowing payment to be made by instalments:

“The sum at stake, the £200, £150 for students may appear modest. It is not. Factor in that it is a payment per year, that there will be a levy for each family member and then consider average earnings in different countries and exchange rates with the UK and it acts as a bar to entry … Any health levy payable prior to arrival risks presenting a barrier for those nationals of countries where earnings are low and currencies weak relative to the UK. Similarly if a person must pay the levy for their entire period of leave up front: to do so exacerbates the effect of existing disparities”.

The Anti Trafficking and Labour Exploitation Unit has provided a case study which again illustrates the difficulties that upfront payments can create for low-paid workers:

“F is a domestic worker from South Asia. She has leave to remain granted under the rules for domestic workers in place before April 2012. In 2015 she sought to extend her leave to remain. She faced an application fee of £649 and a health surcharge

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of £200 so a total of £849 to pay up front. This was more than her monthly wage of £800. From our experience, someone working in a minimum wage job is virtually certain to have their application for fee remission refused, even when human rights is the main focus of the application, which is not the case for domestic worker visa extensions who could not therefore hope to be given a fee waiver. F had to borrow the money from her employer which on this occasion was possible. Not all employers would be willing to assist in this way”—

I suspect that rather few employers would do so. It continues:

“For a domestic worker to find that much money up front inevitably necessitates borrowing, which can put a vulnerable person further at risk. To save that much money each month can be a huge task for someone on a minimum wage income but is more manageable than an upfront payment. The fee for such applications will go up to £811 in 2016 in addition to the health surcharge”.

I suspect that all of us in this House live pretty comfortably, so for us to make a payment like that upfront is something that we probably do not even think about. It might just be a slight nuisance. We must put ourselves in the shoes of someone for whom making such an upfront payment is a huge burden, and something that seems impossible to comprehend. The difference it would make to them to be able to pay in instalments is enormous. It is important that we try to think what it means to the people for whom we legislate.

The exemptions also seem to me very fair. I was going to make reference to the UNCRC, but the noble Lord, Lord Alton, has already made it. There are questions about whether charging children is compatible with those provisions. To exclude victims of domestic abuse would simply build on the existing exemptions under the destitution domestic violence concession, without introducing a new principle. On the question of destitution, the briefing that I had from the Caritas Social Action Network gave the example of someone who was not considered destitute for this purpose because they had £60 in their bank account, but they were homeless. Perhaps I should know the answer, but will the Minister tell us the criteria for destitution when deciding on such cases? I hope that he will look kindly on these very reasonable, very modest and very just amendments.

Lord Hylton (CB): My Lords, I support these two amendments—in particular, where they deal with exemptions for children who cannot be expected to have large earnings and for victims of domestic violence. May I suggest to the Minister that he consults on this his noble friend Lady Anelay of St Johns? After all, she has worldwide responsibilities for protecting women in particular but also, no doubt, children against violence, whether domestic or arising from wars and civil conflicts. It would be paradoxical for us to go to considerable lengths to get better worldwide protection while diminishing it or removing it from people here.

Baroness Hamwee (LD): My Lords, I support my noble friend in these two amendments. They have been described as modest; I think they are remarkably modest in the light of the descriptions that we have heard. I would say to the noble Baroness, Lady Lister, that I would think twice about £640.

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We are told that immigration fees are charged on the basis largely of cost recovery. Does this administration charge reflect the cost of administration? I find it quite interesting. It makes me wonder not only about the efficiency of it but that so much more is being paid for the administration than for the health service. When the proposals for a health surcharge were first mooted, there was a lot of debate about the dangers of either driving people underground or deterring people who have a right to a service from seeking it because they do not quite understand how it all works and fear that they might be prejudicing their own immigration status by seeking health advice and health treatment. My noble friend has raised immensely important points.

The Earl of Sandwich (CB): My Lords, the noble Baroness just said what I would have said, so I add only one plea to the Minister: would he please explain the point of the regulations? We have discussed them before on previous immigration Bills and they keep coming back because they are so obviously unfair. We have to know whether they are intended as a deterrent, because if they are they will not have the slightest effect.

Lord Rosser: I rise very briefly just to say that I await the Government’s response with interest. I am not sure what the argument will be against being able to pay the immigration health surcharge incrementally. On exemptions from the surcharge, if the Government will not go down the road of the amendment, I await with interest to hear what their argument is for not having these exemptions.

Lord Bates: My Lords, I shall make some general points in response to the amendment from the noble Baroness, Lady Doocey, which we had the opportunity to discuss outside the Chamber a little bit before we reached this stage. I took the opportunity to look into it in more detail with officials.

For those reading this in the Official Report, it might be helpful if I address the point made by the noble Earl, Lord Sandwich, about the reason for this provision. The total cost of visitors and temporary migrants accessing NHS services in England alone has been estimated at £2 billion per year in 2013. Around £950 million was spent on temporary migrants, such as students and workers, from whom no charge was recoverable. Non-EEA temporary migrants—workers and family—here for more than 12 months had a weighted average cost to the NHS of just more than £800 per head, and a total estimated gross cost to the NHS of more than £500 million per year. Non-EEA students—for any length of stay—had a weighted average cost to the NHS of just more than £700 per head, with a total gross cost to the NHS of £430 million per year.

Noble Lords will be aware that the Immigration (Health Charge) Order 2015, made under the Immigration Act 2014, requires that non-EEA temporary migrants who make an immigration application to come to the UK for six months or more, or who apply to extend their stay in the UK, make a direct contribution to the NHS via payment of an immigration health surcharge. The Home Office collects the charge as part of the immigration application process and payment of it is

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mandatory. If the charge is not paid, the applicant is not processed. Temporary migrants pay upfront an amount that covers the entire period of their permission to stay in the UK. Where an application is refused, rejected or withdrawn, the charge is fully refunded.

The charge has been set at a competitive level of £200 per annum per migrant, and at a discounted rate of £150 per annum for students—well below the true cost to the NHS of treating these migrants, as stated in my opening remarks. It is also set below the rate that migrants expect to pay for health insurance in competitor countries, such as Australia and the USA. For example, a student applying to Harvard in the USA would, in most cases, have to pay a fee of around £600 per year to access basic health services. To access Harvard’s most comprehensive health plan would cost an additional £1,500 per year. In contrast, the surcharge for a foreign student applying to the UK would be only £150 per year.

Upfront payment of the full amount of the charge covering the length of the visa period is administratively far simpler than requiring migrants to make multiple payments of the appropriate amount to the Home Office and the Home Office enforcing such a requirement. Any movement to an instalment approach would bring with it considerable administrative and operational burdens. An observation has already been made by the noble Baroness, Lady Hamwee, on the administrative costs. The amendment would raise them. Home Office staff would need to ensure that payments were being made. If they were not, they would need to chase payment and, in some cases, enforcement action might be required, which could involve curtailing a person’s leave.

Payment by instalments would also lead to confusion about entitlement to free treatment and place unnecessary administrative burdens on the NHS, as NHS staff would have to check at each contact with a patient that they were up to date with their payments. There would also be uncertainty about whether our health system would actually receive all the expected income from the surcharge, which would be an unwelcome prospect for the NHS.

4.45 pm

Multiple payments would also require significant changes to the IT system which is an integrated part of the online immigration application process and which currently has no mechanism for visa applicants to make further payments at a later stage without manual intervention. It would be difficult, complex and costly, therefore, to enforce payment of the charge once the visa had been issued, and would put at risk some of the income generation necessary for our health services. Some noble Lords have, during the debate, noted that Home Office resources are limited. We should not divert valuable resources away from the important task of dealing with those illegal migrants who do most harm to our society to manage what would be an overly complicated surcharge payment system.

Baroness Lister of Burtersett: I may have misinterpreted what the noble Lord said, but I think that he used the phrase “simpler than requiring instalments”. However,

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it is not the intention of the amendment to require instalments but rather to allow them to be used in what may be a very small number of cases—I do not know whether that is the case—of people who simply cannot pay upfront. Has he made any estimate of what proportion of people are likely to ask to pay by instalments, because I do not think it is assumed that that would be the default position?

Lord Bates: If you offered interest free credit in the commercial world, I guess that probably most people would take advantage of it. Therefore, the cost might be quite significant, unless the noble Baroness is proposing an additional charge for accessing the system through an instalment process, which I do not think she is. The points I made earlier related to the current system. I have not just arrived at this point, as it were. When the noble Baroness, Lady Doocey, raised this issue with me—the week before last, I think—I checked with officials and looked at the system. I was told that it is very difficult because at the moment everything is up front—the costs and everything—and the boxes have to be ticked in order to move on to the frame. As I say, we are not making a spurious objection to the measure. I have more to say on that, but I will now address Amendment 177.

Amendment 177 seeks to exempt children and victims of domestic violence from the charge. Following extensive debates in Parliament during the passage of the Immigration Act 2014, the Government put safeguards in place to protect vulnerable groups. The Immigration Act 2014 provides the Secretary of State with the power to exempt certain categories of applicant from the requirement to pay the immigration health charge. These categories are listed in Schedule 2 to the Immigration (Health Charge) Order. Current exemptions include children who make an immigration application or who are looked after by a local authority and a person who applies for limited leave under the Home Office concession known as the destitute domestic violence concession. In the case of the latter, these are individuals who are here as partners of British citizens who are settled here, and can consequently apply for settlement. Individuals who are in the UK for less than six months or who have not paid the charge can still access NHS services, although some of these might be chargeable. However, a key principle of the NHS is that medical treatment which is urgent or immediately necessary in the judgment of a clinician is never withheld from anyone, irrespective of their chargeable status.

Furthermore, since April 2015, treatment that is needed as a consequence of domestic violence is exempt from charge to all overseas visitors, regardless of whether or not they have paid the immigration health charge. This includes both physical and mental health needs. The only stipulation is that the visitor has not come to the UK for the purpose of seeking that treatment.

Lord Alton of Liverpool: I am grateful to the Minister for giving way. Before he moves on, he will recall that I raised the issue of our obligations under Article 18 of the United Nations Convention on the Rights of the Child. Has he taken advice from officials and Law Officers as to whether we are compliant in doing the very minimum, as he has described to the House today?

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Lord Bates: On that point, which I was just coming to, migrants making an application for asylum or humanitarian protection, or a claim that their removal from the United Kingdom would be contrary to Article 3 of the European Convention on Human Rights, will be exempt under the existing rules.

A question was asked, very reasonably, about definition. The explanation is quite lengthy, so perhaps I might put it in writing to the noble Baroness, Lady Doocey, and copy it to other interested Members. I know that that information would be useful ahead of day four of consideration in Committee, when other related issues will be considered.

On the points made by the noble Lords, Lord Hylton and Lord Alton, and the noble Baroness, Lady Lister, children who are visiting the UK with their parents or guardians or whose parents are here unlawfully are generally not entitled to free NHS hospital treatment. However, they will always be provided with immediately necessary and urgent treatment, even if their parents have not paid in advance or are likely to be unable to pay afterwards. But some particularly vulnerable children are exempt from the charge—for example, refugees, those looked after by a local authority and victims of human trafficking. We do not intend to establish a blanket exemption for children, as this poses a significant risk that people would bring their children to the UK to seek treatment for existing serious illnesses. No child is deprived of access to health services, but in some cases this will have to be paid for, unless an exemption applies.

The noble Lord, Lord Alton, asked about the Cardinal Hume Centre, which I have heard of by reputation. I would be very happy to accompany him with one or two officials, ahead of Report stage, to see the work going on there and to hear about the practical concerns. That would be a good part of testing out what we are doing. However, the Government believe that those who make use of NHS services must pay for them. The immigration health charge is collected as a direct contribution to the NHS. Children are as likely to make use of NHS services as adults, and it is therefore only right that parents and guardians bear the responsibility of paying a charge for their child, except in the type of situation I have identified. Those who pay the charge will then receive free NHS treatment for the duration of their lawful stay in the United Kingdom.

With these explanations and that commitment to explore this issue further ahead of Report, particularly in relation to the Cardinal Hume Centre, I invite noble Lords to consider withdrawing their amendments at this stage.

Lord Hylton: Before the noble Baroness decides what to do about this group of amendments, I ask the Minister to reflect between now and Report on whether Section 38 of the Immigration Act 2014 is compatible with the agreements we have with other EU states for reciprocal health and welfare benefits. If it is not, that would seem to me to reflect very badly on our current efforts to renegotiate membership.

Lord Bates: I am very happy to reflect on that. Perhaps I will include the response to that with the response on destitution that I promised the noble Baroness.

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Baroness Doocey: I thank all noble Lords who have spoken to this amendment. I really feel saddened that the Government will not even consider something as basic as allowing people to pay a health charge by instalments—certainly that is the message that is coming through loud and clear. We have heard excuses about an IT system that does not work—when has any government IT system ever worked for anything? I am afraid that just does not wash at all.

The Minister said that mothers ought to pay for their children. I do not think anyone would disagree in principle, but in the case that I mentioned of Ruth, who came here and is now destitute, living in a shelter, how on earth could she possibly raise the money to pay £200 for each child and herself to renew her visa? She just cannot. She has no job; she has no home; she has been abused. In those circumstances, surely the Government could think again. There is no way that people in this situation can raise the money. It is not a question of them not wanting to; they are physically unable to do so. I am very disappointed.

The Minister made great play about the cost of changing the systems and collecting money, but what about the costs that are being incurred day after day because the visa waiver system is not being applied properly? I have evidence—which, I repeat, I am very happy to go through with the Minister—of case after case of the applicant being turned down up to four times and then on the fifth occasion being accepted. What about the cost of all the staff involved in that—what about the cost of the lawyers? Why are the Government not concerned with that? If the Government managed to run the fee waiver system properly, they might have sufficient funds to pay the tiny charge that will be necessary in order to let these people pay their health charge by instalments.

I hope that the Minister might come and talk to me and some of these people, and see for himself that these problems are real. I would be very happy to share with him all the issues and all the evidence that has been accumulated. I hope that he might accept that invitation and think again and not just close it off now. For now, I beg leave to withdraw the amendment.

Amendment 176 withdrawn.

Amendment 177 not moved.

Schedule 4: Bank accounts

Amendment 178

Moved by Baroness Hamwee

178: Schedule 4, page 90, line 26, leave out “may” and insert “shall”

Baroness Hamwee: My Lords, the amendments in this group are in my name and that of my noble friend Lord Paddick. They concern the provisions about bank accounts—the restrictions on bank accounts and, more particularly, the requirement for banks to make checks and the opportunities for the Secretary of State to apply for a freezing order prohibiting the use of the account.

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I accept that all these provisions are to be reviewed within five years of the schedule coming fully into force. I am glad to see that in the Bill. We are often told that of course all legislation is routinely reviewed after three years so I do not know the significance of the five years or the particular significance of it coming “fully” into force. Is there some plan that perhaps the Minister can share with the Committee for the gradual implementation of the provisions?

Amendment 178 would provide that an exception shall—not may—make certain provisions. I assume that “may” in new Section 40D(4) is legislation speak for “shall” but as we so often say, if that is what it means, it would be nice if it said so, because the day will come when a court says, “Parliament knew what it was saying when it say ‘may’ not ‘shall’”, and that what we meant was that the matter was permissive not mandatory. Amendment 179 is to probe why the right of appeal is to be limited to a current order. That may relate to perhaps the major issue in this group: compensation.

5 pm

Amendment 180 would allow the court specifically to order compensation. It appears necessary as, when the matter was debated in the Public Bill Committee in the Commons, the Minister confirmed that compensation did not fall within the incidental or consequential orders that the relevant appeal court can make under the Bill. This concerned the Joint Committee on Human Rights, of which I am a member. It has written to the Home Secretary to raise the issue of compensation where a bank account is frozen and this results in financial loss to an individual, or an innocent third party who sustains an actual loss, as a result of an error on the part of the Home Office. The JCHR wrote that,

“the availability of compensation could be a relevant factor in judging compliance with the right to peaceful enjoyment of possessions in Article 1 to Protocol 1 of the European Convention on Human Rights”.

That may sound slightly arcane to your Lordships but it is an additional argument to the one that it would, frankly, be right for the Home Office to pay compensation if it makes an error.

The Government have said that they are confident that any errors could be resolved “in real time”—I suppose that means immediately—and that compensation is perceived to be disproportionate in the case of an error. If it can be resolved, why are the Government worried about paying compensation and why would it be disproportionate? The chair of the JCHR, Harriet Harman, has said that given these factors,

“it is not clear why … compensation … is perceived to be disproportionate”,

and, in the measured language that is always used in these circumstances, went on to write that an amendment might be considered to provide for payment of compensation.

As I understand it, there will be no independent oversight of the operation of these provisions and no opportunity for an individual to challenge the closure of the account, or to challenge incorrect or unreliable information that has led to that closure. My noble

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friend Lady Doocey referred to the reliability or otherwise of NHS IT systems. I do not think that that is solely the experience within the NHS. What if databases are not absolutely correct and up-to-date? I guess that I would not be the only noble Lord today who may have had the odd problem with an error regarding the operation of a bank account so, while our banks are wonderful institutions as well, the Government’s responses are a bit too comforable.

Almost finally, Amendment 181 would provide that an application to freeze an account could be made only if it is overwhelmingly in the public interest in respect of the particular account holder. We know that so much of this Bill is directed at deterring would-be immigrants coming to this country, and I fear that this is another bit of message-sending. I would like to be reassured that an account holder’s particular and individual circumstances are considered.

Amendment 182 is consequential. Amendment 183 would provide that regulations under these new sections of the Immigration Act 2014 would be affirmative instruments. I beg to move.

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

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

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

Lord Ashton of Hyde (Con): Amendment 178 would require, as opposed to permit, provision for reasonable living and legal expenses to be included in a freezing

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

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

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

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

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

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

Freezing orders will not cause destitution. The court has a broad discretion to make exceptions, with reasonable living and legal expenses explicitly included. In some cases another source of funds may mean that such provision is not required. Standard provision for such expenses will normally be included when an order is first applied for. Affected persons can apply to the court to have an order varied or discharged, and the

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Home Office can support an application where it agrees with it. This would allow orders to be swiftly varied on the papers without a hearing.

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

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

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

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

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

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5.15 pm

Baroness Hamwee: My Lords, I am glad to have confirmation that compensation falls within the phrase “incidental or consequential orders”: that was not how I read, or misread, the previous debate.

The noble Lord, Lord Kennedy, made a really interesting point that was not fully answered. Unless there is a liability on the bank, we will not get to the point of considering whether individual directors have any liability. The Minister said that there would be no place for that in an immigration Bill; there is no place for a lot of the provisions in the Bill.

Overwhelmingly, I get the message: “We should not worry about it. Everything can be put right if it goes wrong, so there is no need for provision for compensation”. A different way of putting that is, “We won’t worry about it. Probably compensation would be appropriate only rarely, because things will be put right as soon as they go wrong, if they go wrong at all”.

But clearly we need to move on to other business so, at this point, I beg leave to withdraw the amendment.

Amendment 178 withdrawn.

Amendments 179 to 183 not moved.

Schedule 4 agreed.

House resumed.

NHS: Trust Finances


5.17 pm

The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con): My Lords, with the leave of the House, I shall now repeat as a Statement the response to an Urgent Question on NHS finances given in the other place by my honourable friend the Minister for Care Quality. The Statement is as follows:

“The House will know that in 2014, the NHS itself set out its plans for the next five years, which included a front-loaded funding requirement of £8 billion. Because of our strong economy, the Government have been able to honour that request and will be funding it in full, including a down payment of £2 billion in this financial year ahead of the spending review period. Next year, there will be an increase of £3.8 billion and, taken together, we shall therefore be providing £10 billion towards the NHS five-year forward view.

Within that context, a number of hospital trusts are running a financial deficit—in large part because of the need to staff wards safely after what was learned in the aftermath of the scandal of Mid Staffs. It is also the case that the best hospitals have begun to transform along the lines required by the NHS FiveYear Forward View, but some have not, and this has made the management of their finances all the more difficult.

NHS Improvement expects that NHS hospital trusts will report an overall deficit for the current financial year, 2015-16. Savings achieved in the rest of the NHS have ensured that this overall deficit will be offset, so that the system as a whole will achieve financial balance.

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For the next financial year, NHS Improvement will continue to work with trusts to ensure that they improve their financial position. To help them in this endeavour, the department has introduced tough controls on the costs of staff agencies, a cap on consultancy contracts and central procurement rules, as proposed by the noble Lord, Lord Carter, in his review on improving hospital efficiency. The House should know that the savings identified by the noble Lord total £5 billion a year by 2020. The chief executive of NHS Improvement, Jim Mackey, is confident that, taken together, these measures will enable hospital trusts to recover a sustainable financial position next year”.

That concludes the Statement.

5.19 pm

Lord Hunt of Kings Heath (Lab): My Lords, I thank the noble Lord for repeating the Answer to the Urgent Question in the other place. If ever the inadequacy of the 2012 Act needed illuminating, the Minister has certainly done that today. The reality is that we have two separate regulators giving exactly opposite instructions to NHS trusts. The CQC tells hospitals that they are unsafe and should increase their clinical staff—I do not believe that one single report by the CQC has not said that they need to increase their clinical staff. On the other hand, Monitor and the NHS TDA tell hospitals to cut staff.

Like me, the Minister has been chairman of an NHS foundation trust. What on earth are the chairman and board meant to do when they receive this conflicting advice from the regulators, all dressed up in gobbledegook and ambiguity to cover the regulators against the nonsense they are coming out with? What does the Minister say to the King’s Fund? On Saturday, it said that, three years on from the report into Mid Staffs,

“which emphasises that safe staffing was the key to maintaining quality of care, the financial meltdown in the NHS … means that the policy is being abandoned for hospitals that have run out of money”.

The Minister said that the settlement secured by the Department of Health in the spending review would sort out the financial pressures that hospitals are under. I know nobody actively serving on the front line of the NHS who believes that there is any chance whatever of that happening over the next five years. Monitor and the TDA have written to every hospital asking them to take urgent steps to regain control of their budgets, including headcount reductions. Was the Minister or the Secretary of State aware that that letter had been sent? Did it receive ministerial approval?

Finally, on the question of the £8 billion that the NHS was meant to have asked for, I point out to the Minister that the NHS did not ask for it; it was the NHS Commissioning Board, which is not the NHS. Again, I know of nobody of any repute in the NHS who thought that £8 billion was anywhere near enough. Would the Minister confirm that even the NHS Commissioning Board in its Five Year Forward View said that the £22 billion required in efficiency savings would be a huge stretch? Can he confirm the £5 billion identified by my noble friend Lord Carter? There seems to be a big gap between that £5 billion and the £22 billion.

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Lord Prior of Brampton: My Lords, the noble Lord asked a number of questions. Starting in reverse order, the Five Year Forward View was signed by not just the NHS Commissioning Board but also all the ALBs. Of course the £22 billion is a huge stretch. No one denies that and it requires a transformation in the way in which healthcare is delivered in this country. In terms of efficiency savings, the requirement for next year is 2%. We expect that to continue at around 2% to 3% over the five-year period.

I come to the noble Lord’s other questions. There is not a direct conflict between safe staffing levels, efficiency and financial balance. In good hospitals, the three go together. Of course I accept that there have been tensions and it is not surprising, looking back on it, that the reaction to what happened at Mid Staffs led to a number of hospitals increasing staffing levels very rapidly. I remember talking to the noble Lord when he was chairman of a trust—as I was at the time, or I might have been at the CQC—and of course I understand those pressures. All boards of all hospitals must live with those pressures and come to the right balance. I accept that the newly reinvigorated CQC has added to some of the pressures on hospitals to increase the level of staffing.

On the King’s Fund, I have not seen the report that the noble Lord mentioned and that reference to the “financial meltdown”. We expect to break even across the NHS this year. There is £3.8 billion extra spend going into the NHS next year and we hope that when all the plans have come in from the hospital trusts we will be in reasonable shape.

The noble Lord referred to the letter sent out, which I think was leaked in the Guardian, which led to this Urgent Question. I did not see the actual letter before it went out, but there is nothing in it that comes as a big surprise.

Baroness Walmsley (LD): My Lords, a good example of NHS trusts doing what the Government have asked them to do and working together to deliver care more efficiently is the Uniting Care Partnership in Cambridgeshire and Peterborough, which collapsed after only eight months. We are told that the three NHS entities involved in the contract will continue to deliver care under the new model without disruption. If this is able to be done, why was so much money wasted in the bidding process? Could not they have worked together anyway? How much did the whole process cost and how much was paid to their advisers, the Strategic Projects Team, which did not seem to realise that the contract at the agreed price was simply undeliverable? Is not it clear that the CCG simply did not have enough money to deliver those services?

Lord Prior of Brampton: I think that the noble Baroness’s party was in government when that contract was negotiated, although it seems a bit churlish to remind her of that. The fact is that, as we move to these new ways in which to deliver care, risk is going to have to be taken. Some of the new ways in which we do it are not going to work. In this case, it clearly did not work. It was a very big project—£800 million in total value, I believe, over five years, for older people in Cambridgeshire. It was a highly complex contract

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and, tragically, it has not worked out. I shall have to come back to the noble Baroness if I can about how much it cost in fees.

Lord Warner (Non-Afl): My Lords, the Minister mentioned the chief executive of NHS Improvement in very approving terms. Is he aware that that same chief executive told the House of Commons Public Accounts Committee that the sector’s deficit for the current financial year, 2015-16, looks,

“like it is heading towards £2.5 billion or perhaps even north of that”.

Capital to revenue transfers and “accounting adjustments” will kick in before April to bring the number down. Does that mean that the much-touted £3.8 billion that will come into the NHS next financial year, 2016-17, already has £2.5 billion to be offset against it before the financial year starts?

Lord Prior of Brampton: My Lords, it is true indeed that Jim Mackey mentioned those figures. He is hoping that he can get that deficit down to £1.8 billion by the end of the year as a result of some of the capital to revenue and other accounting adjustments to which the noble Lord referred. We are also hoping that the reduction in agency spend will start to have a big impact in the final quarter of the year. We will get the third quarter results in two weeks’ time, when we will have a better idea as to where we will end up at the end of the year.

Lord Patel (CB): Correct me if I am wrong, but the noble Lord mentioned in his Statement imposing a tariff on agency staff, cutting down on consultancy fees and the potential savings that the report of the noble Lord, Lord Carter, might produce—although most people doubt that it will. Where does he think that the finances of the NHS will be on 1 April 2017? What is his prediction?

Lord Prior of Brampton: The cap on agency staffing rates and on agency staff has really started to apply only in the past six weeks. So far, it looks as if we are making significant progress there. As I said in answer to the Question, the NHS is receiving £3.8 billion of extra funding in the forthcoming year. We believe that that will enable it to restore its finances to a proper balance by April 2017.

Baroness Finlay of Llandaff (CB): What are the Government going to do about the haemorrhage of finances into the PFI deals, given that £11.8 billion of buildings will have cost the country £79 billion by the time 31 years comes round? By then those buildings might very often not be fit for purpose because things have moved on so fast. Year on year there is a haemorrhage of money from the NHS to finance these deals. Last year, £2 billion went in that direction.

Lord Prior of Brampton: It is clear that a number of these PFI deals were massively expensive and have put huge pressure on a relatively small number of trusts. However, the fact is that we have entered into these long-term contracts and there is no way of getting out of them. I am afraid that it is a cost that the NHS will have to continue to bear.