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Lord Lea of Crondall: My Lords, in my short contribution I shall concentrate on the crossover between this Bill and the Identity Cards Bill. They contain many common featuresfor example, biometric testing.
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I have tabled an amendment for next Monday on the Identity Cards Bill, which provides that:
"The Secretary of State, before making an order containing any provision for compulsory registration, must consult on whether, and the extent to which, this requires him to regularise the status of foreign nationals residing in the United Kingdom without entitlement to remain".
I shall return to regularisation in a moment.
On the general relationship between the two Bills, I made some inquiries about where I might usefully table the amendment from a technical point of view. The steer I tended to get when I approached the issue from the point of view of the Identity Cards Bill was that it was more in the territory of the immigration Bill; and when I approached it from the point of view of an amendment in the immigration Bill, people pointed me in the direction of the Identity Cards Bill. I am sure that the left hand and the right hand will be able to hold hands, as it were, in the near future.
The central point of the problem of the crossover between the Identity Cards Bill and the immigration Bill is that none of us knows how many of the 500,000 illegal immigrants are expected to be caught by these provisions. Leaving aside the example given by my noble friend Lady Turner of someone who has been here for donkey's years, running a business or whatever without the right to remain, surely we need some criteriaa procedure or somethingto avoid the presumption that all 500,000 people will be asked to go and live somewhere else. Although that is not within this Bill, the build-up of all these tests is clearly and deliberately putting a lot of pressure on certain people and we need criteria with which to regularise their position.
That will come about even before any question of the compulsory stage of the Identity Cards Bill. As we know, the scheme will mean that free public services can be used only by people with identity cards. People will not be forced to carry the card, but they will have to register for a card using biometric data. There will obviously be quite a lot of concern about how all that will tie together in practice.
It was asked earlier today in relation to a Starred Question how easily the Gangmasters (Licensing) Act would sit with the regularisation in a certain way of people under the gangmasters arrangement. Some of the trade union officials whom I know, such as the National Farmers' Union, as well as employers and the food processing industry have worked hard to make credible the rules governing the regularisation of the position of people employed by gangmasters. We have only to look at the case of Morecambe Bay to know that many of those people are in a position that has parallels with that described by the noble Lord, Lord Chan.
Regularisation may yield more in tax and national insurance to the public purse than it will cost in enforcement. There is a trade-off to be weighed in terms of how much the detention and removal of the average illegal immigrant costs. The Government's role is arguably to weigh these factors, but there is a risk of the inspection regime fuelling the informal or black economy. The Gangmasters (Licensing) Act was
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a response to the horror of Morecambe Bay. We know that many people's net wages are in the same sort of territory. The events of Morecambe Bay led to a demand, widely supported in Parliament, for the position to be regularised, because it was a totally unacceptable method of employment in modern Britain and gave workers no rights.
The informal economy might enjoy a competitive edge by attracting labour which legitimate business will be deprived of if identity and inspection regimes turn migrant worker status into a problem for employer and employee. I echo the point made by the noble Baroness, Lady Turner. The CBI, for once, is wearing its hat as being against too much regulation. However, we want regulation to meet legitimate business benchmarks, and not to ask employers simply to be policemen and to make them somehow criminally liable if they are not. Perhaps the Minister will put me right if I have got that wrong.
I am not approaching this in any spirit of general oppositionon the contrarybut this crossover of legislation needs to be looked at. If the Government want to be seen to be bringing more people into the formal economy, that could be an important consideration.
Regularisation is a potential weapon in the arsenal of national security. It brings more people within the scope of regular immigration control, using a carrot as opposed to a stick, and aids national integration and equality strategies by recognising people's economic contribution and giving them an official stake in UK society.
In conclusion, I am not calling for a general amnesty for everybody who is now in the country full-stop. However, perhaps I may dabble with the word "amnesty", because it is not a very fashionable word. We do not want to put an unwanted question mark over many hundreds of thousands of people, and there is no crude arithmetical answer to the question of who may stay. You cannot say that if you are worth more than £10 million and you have been here more than 10 years, it is okay. We will have to give a lot more thought to the criteria.
I finish where I began. Before making an order containing any provisions for the compulsory registration of people under this Bill or the Identity Cards Bill, the Secretary of State must consult on whether, and the extent to which, this requires him to regularise the status of foreign nationals residing in the United Kingdom without entitlement to remain.
Baroness Stern: My Lords, I, too, warmly welcome the noble Baroness, Lady Ashton, to her role on this Bill. My remarks will be confined to the clauses that appear at the end of the Bill in a section that is rather disarmingly entitled "Miscellaneous". These are the so-called "counter-terrorism" clauses. I was grateful to hear the remarks of the noble Lord, Lord Ahmed, on them. They were dealt with by the Joint Committee on Human Rights in its report Counter-Terrorism Policy and Human Rights: Terrorism Bill and Related
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Matters, which was published yesterday. I am a member of that committee and I shall refer to the report's conclusions.
These amendments were tabled in Standing Committee in the other place. I shall comment first on the procedure followed in introducing them. Since they were put forward as an amendment to an existing Bill, there was no ministerial statement of compatibility with the Human Rights Act. The Explanatory Notes accompanying them do not comment on the human rights impact. As the Minister has made a statement of compatibility in introducing the Bill in this House, I should be grateful if she could indicate why she thinks these clauses are compatible with the Act, particularly when she considers the report of the Joint Committee on Human Rights, the comments of the United Nations High Commissioner for Refugees and many other groups.
Clause 53 will introduce a new test for the deprivation of a person's British citizenship. Under the law as it stands, the Secretary of State can take away British citizenshipalthough I understand that this power has hardly, if ever, been usedif he is,
Also, of course, the decision to take away citizenship cannot make the person stateless. In practice, therefore, the deprivation of citizenship can apply only to people with dual nationality, but including those who are born British citizens.
Clause 53 will widen substantially the basis for this deprivation of citizenship. I endorse the remarks of the noble Baroness, Lady Turner, on this point. Instead of the wording that I have just quoted; that is,
the basis for the Secretary of State to deprive a person of British citizenship will be that he is,
According to the Minister who spoke in Committee in the other place, the decision whether deprivation is in the public good will depend on whether the person has engaged in any behaviour that appears on the list of "unacceptable behaviours". Does "conducive to the public good" depend on whether one of the "unacceptable behaviours" has been engaged in? The House will know that this list of unacceptable behaviours guides the Home Secretary in exercising his discretion to exclude and deport non-nationals, and that one of them is the highly controversial act of "justifying terrorism". As the noble Lord, Lord Ahmed, has explained, the definition of terrorism in the Terrorism Act 2000 is very wide, and applies to acts committed anywhere in the world.
So many concerns have been raised about the width of this definition in the other place and in this House that the Government's independent reviewer of terrorism legislation, the noble Lord, Lord Carlile, has been asked to undertake a review of it. At Second Reading of the Terrorism Bill in this House, the noble Lord said he had agreed to do so and added:
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The Joint Committee on Human Rights also looked at the definition for its report. We concluded that it was unacceptably wide, and recommended that the definition be changed. Deprivation of citizenship is a serious matter. It has a profound impact on the person so treated. According to the Joint Committee's report, the human rights implications of this deprivation could involve the right to be free of inhuman or degrading treatment; the right to liberty; the right to respect for family life; and the right not to be arbitrarily deprived of the right to enter one's own country. What this Bill therefore proposes is that people shall be deprived of their citizenship and subjected to many possible infringements of basic rights, if they are deemed to have justified terrorism using a definition of terrorism that it is agreed is unacceptably wide and needs reviewing.
Of course there is a right of appeal, and the House may feel that is a good safeguard and protection against arbitrariness. However, it is not so reassuring when one sees how difficult it will be to appeal when the Home Secretary need only be satisfied that the deprivation of citizenship is conducive to the public good, and there is no requirement that there be objectively reasonable grounds for his belief. The Joint Committee points out in its conclusion that the new Clause 52 gives rise to a risk of incompatibility with Articles 3, 5, 8 and 14 of the European Convention, as well as Articles 12 and 26 of the International Covenant on Civil and Political Rights.
The points I have made on Clause 52 also have some relevance to Clause 53, which provides for the deprivation of right of abode from certain Commonwealth citizens. Although in the case of Commonwealth citizens with right of abode there is a statutory appeal to a body with full jurisdiction, in the end the same considerations applyin particular, and here I quote the Joint Committee's report,
The provisions of the new Clause 51 raise serious human rights problems. The clause lays down a new interpretation of the refugee convention. Article 1F of that convention sets out the categories of people who have ruled themselves out of getting international protection as refugees. Article 1F says you do not deserve international protection if you commit a crime against peace, a war crime or a crime against humanity, or if you have done,
The new Clause 51 proposed by the Government will include within that definition acts of committing, preparing or instigating terrorism, and acts of encouraging or inducing others to commit, prepare or instigate terrorism, whether or not the acts themselves amount to an actual or "inchoate" offence. That may sound eminently reasonable until we remember, first, the definition of terrorism being used here, and,
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secondly, that it covers acts wherever they are committed, whether in Uzbekistan, North Korea or perhaps Burma.
I cannot do better than draw to the attention of the House the view of the Joint Committee of Human Rights on this issue:
"To redefine the scope of Article 1F(c) exclusion so as to catch anyone who has threatened damage to property as a means to political change anywhere in the world, and anyone who in the Secretary of State's view has engaged in one of the unacceptable behaviours such as 'justifying' terrorism, is in our view to broaden the scope of the exclusion in Article 1F(c) in a way which is not itself compatible with the Refugee Convention".
It seems to me, although of course I am not a lawyer, that advocating the overthrow of a repressive regimefor example, that in Uzbekistanand supporting a move to another form of government such as democracy is enough to ensure that you will not get the protection of the United Kingdom, should you be able to flee before the secret police get you. In my view, that is a deeply shaming position for us to find ourselves in, and a long way from the haven for the Huguenots mentioned by the noble Lord, Lord Brooke of Sutton Mandeville.
The position is not improved by the provision in Clause 7 that requires appeals against deportation on national security grounds to be brought out-of-country. The Joint Committee considers that the failure of the new clause to preserve an in-country appeal on asylum grounds gives rise to a risk of incompatibility with the refugee convention.
I have one more question for the Minister: how do the Government propose to reconcile the work of the noble Lord, Lord Carlile, in reviewing the definition of terrorism in the 2000 Act with the plans to use that definition straight away across such a wide range of new legislation?
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