Baroness Hamwee:

Moved by Baroness Hamwee

175ZB: Clause 74, page 79, line 7, leave out subsection (3)

My Lords, the short point that my noble friend Lord Paddick wanted to make, as he generally does, in leaving out Clause 74(3) is that, again, this seems to conflate immigration and terrorism. It extends powers to question people about involvement in terrorism at the border and applies the powers to people being detained under a provision of the immigration Acts, and so on. The objection runs like a thread through the Bill, to so many points. Immigration and terrorism are not the same. Not all terrorists are immigrants. Terrorists who have succeeded in the UK have been British, and if the Government allow, in legislation, the bias implied by the conflation of these two, no wonder others display the same bias. I beg to move.

This clause would extend the use of Schedule 7 to the Terrorism Act to people who have been detained under the immigration Acts and transported outside of a port or border area. Schedule 7 can be an important tool in the prevention of terrorism, but it has had a chequered past at times. It has been improved in recent years by the work of independent reviewers of terrorism legislation, two of whom we are now fortunate to have as Members of this House.

I have three or four questions for the Government on the provisions of Clause 74. Have the Government consulted on the extension of the power? Has the change been requested and, if so, by whom or by what body? Can the Minister give more detail on the scale of the problem this is designed to address? How many individuals are officers unable to stop and question under the current arrangements? How was the period of five days arrived at? For those who travel through conventional routes, does not the power have to be used pretty much immediately, in which case five days is a considerable extension? Finally, the powers apply provided an officer “believes” that the person arrived at sea, was apprehended within 24 hours of arrival, and it has been no more than five days since they were apprehended. What will that “belief” that the officer is required to have be based on? It would be helpful if the Government could give some responses to those questions.

I thank both Members of the Committee for their remarks. Schedule 7 examinations have been instrumental in securing evidence to convict terrorists, yielding intelligence to detect terrorist threats and supporting the disruption or deterrence of terrorist activity. Currently, officers may exercise Schedule 7 powers only when an individual is located within a port or border area as defined in the Act. Clause 74 will provide an added layer of protection to the existing processes in place for dealing with those who arrive irregularly by sea in the UK. I think that goes some way to answering the question of the noble Lord, Lord Rosser—they are arriving irregularly outside of ports. The Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, has stated:

“In principle, people arriving irregularly in the United Kingdom should be liable to counter-terrorism examination as much as those arriving at sea ports and airports.”

This clause ensures that, for those arriving irregularly by sea, such as via illegal channel crossings, this will continue be the case.

There are several reasons why those who engage in illegal channel crossings can be moved to a different location from their place of arrival very quickly after arriving. They can range from weight of numbers to the need to move the vulnerable or those in need of medical attention to more appropriate facilities. It is impractical and inhumane to keep large groups of people port side in order to give counterterrorism police an appropriate opportunity to exercise their current powers under Schedule 7.

I reassure noble Lords who tabled the amendment that this is by no means an attempt to treat all migrants arriving in this manner as terrorists, or to stop and examine large numbers of people away from ports and borders. Schedule 7 is not designed and cannot be used as a universal screening mechanism, and Clause 74 has been deliberately drawn to provide an appropriate time window for counterterrorism police to exercise their powers under Schedule 7.

To remove the effect of Clause 74 would impact our ability to determine whether those who are entering the UK in this way are involved in terrorism, impacting our national security. It would continue a scenario where those who arrive in the UK by conventional means are subject to powers to determine involvement in terrorist activity, whereas those who have arrived irregularly by sea, and about whom we have very little documented information, may not be.

I cannot answer precisely who has been consulted on this, other than the Independent Reviewer of Terrorism Legislation, and obviously the counterterrorism police will have a keen interest in how this debate develops. To answer on the numbers, this concerns those arriving irregularly by sea, outside established ports, under the existing rules. I could not tell you how many there are. The other questions impinge on operational matters, on which I am not qualified to comment. I therefore ask the noble Baroness to withdraw the amendment.

My Lords, the Minister said there is a deliberate time limit to these powers. I may be reading this wrong, but they apply to

“the period of 5 days beginning with the day after the day on which the person was apprehended”.

It is not five days from entry or arrival. I am not sure whether that would alter those points that the Minister suggested we take into account. But, since we are not even half way through the groups of amendments, I had better just beg leave to withdraw the amendment.

Amendment 175ZB withdrawn.

Clause 74 agreed.

Clause 75 agreed.

Clause 76: Tribunal charging power in respect of wasted resources

Debate on whether Clause 76 should stand part of the Bill.

My Lords, the noble Baroness, Lady McIntosh, has her name to the opposition to Clause 76 standing part of the Bill. I am happy to pick this up briefly, as she has had to leave.

Clause 76 gives the tribunals a charging power in respect of wasted resources. I do not know whether it is aimed at lefty, liberal lawyers, a group to which I would be proud to belong, although I do not think I quite qualify—lefty maybe, liberal certainly, but I am an ex-lawyer.

I am trying to read my notes, but I cannot understand what I wrote last night.

Perhaps while the noble Baroness looks at her handwriting, as a lefty, liberal lawyer, I say briefly to the Minister that the immigration and asylum system is the most unlevel playing field in our legal system. Tribunals were set up, as the Minister will remember, with the aim of people being able to represent themselves, not as places for expensive lawyers.

In the end, what happens is that the Home Office has some of the best lawyers in the country at its disposal, all the way up to the noble Lord, Lord Pannick, while refugees and asylum seekers struggle. The idea that the people who represent those refugees and asylum seekers in tribunals are going to be under threat of wasted costs will cause concern. It sends a signal that this is part of the Home Secretary’s agenda in her war on “activist lawyers” and whatever. This is not judicial review; we are talking about the tribunal system. We are not talking about people like me and the noble Lord, Lord Pannick, getting involved in the Miller 1, Miller 2 and Belmarsh cases—this is about people’s appeals. That is possibly the concern behind the amendment.

That is very kind of the noble Baroness. My handwriting is perfectly clear; it is just that it makes absolutely no sense for me to have written down the word “goodness” in the middle of this.

My short point is: is this really necessary? Are there not adequate discretionary powers in the tribunals to consider whether a legal representative has acted improperly or unreasonably and has wasted tribunal resources? What assessment has been made of the deterrent effect of this on taking on cases in the First-tier Tribunal or Upper Tribunal? It would damage our system if fewer lawyers felt prepared to do so. The clause extends to negligence but that is another matter; it is between a client and his lawyer and is surely a matter for the civil courts. Any award of damages would then go to the claimant, not, as is provided here, into the consolidated fund.

I have two amendments in this group that would allow for a charging power but for it not to be mandatory. Surely there are procedures for making, as it were, procedure rules. Those should be followed rather than the Government imposing this out of the blue through the medium of this Bill.

As we indicated in Committee in the Commons, we think that the provisions in these two clauses are unnecessary and should be removed from the Bill. The Bill requires the Tribunal Procedure Committee to give the tribunal the power to fine individuals exercising a right of audience or a right to conduct litigation, or an employee of such a person for “improper, unreasonable or negligent” behaviour. There are also issues about wasted costs. That kind of formulation could certainly have a somewhat chilling effect on the willingness of solicitors to take on difficult cases for fear of risking personal financial liability. I suppose that it might also extend to Home Office presenting officers, who would be similarly liable under the measure, but no doubt someone would pay any fine or penalty that they got so no need to worry as far as they are concerned.

As far as we are concerned, the immigration tribunals already have all the case management costs and referral powers that they need to control their own procedure. Giving new powers to immigration tribunals without establishing a basis in evidence for them is surely not warranted. The clauses will therefore make it harder for lawyers acting for people with immigration cases to do their job in immigration hearings. Surely all lawyers have a responsibility to uphold the rule of law and they are strictly regulated by several bodies to ensure that they act to the highest professional standard.

Frankly, and I think that this relates to the point that my noble friend Lady Chakrabarti was making, in acting for people subject to immigration control, among other things, immigration lawyers work with clients who may lack funds and legal aid entitlements, whose documents may be incomplete, missing or badly translated and whose statements as to their past experiences may be hard to secure on account of the ill treatment that they have suffered in their country of origin.

We share the concerns of the Immigration Law Practitioners’ Association and the Law Society that immigration lawyers are being needlessly targeted by the new costs orders and charge orders, which are not necessary and do not apply in other areas of law. Surely it is a well-established fact that access to justice includes equal protection under the law. That principle admits of no distinction between British nationals and foreign nationals, and those who are subject to UK law are entitled to its protection. Clearly this is aimed—put bluntly—at foreign nationals.

I am not sure that the Government have particularly argued their case. I have not really heard the evidence adduced to support the proposition being made or indeed to demonstrate that existing case management powers, wasted costs powers or the powers to refer to the regulator are inadequate to deal with such matters. Frankly, there must be a feeling that this is a proposal from a Home Office that does not like to see so many of its decisions overturned and wants to create the image that somehow it is due to foul play on the part of immigration lawyers, and not to a degree of incompetence from the Home Office in dealing with cases in the first place, that so many get overturned or that proceedings are taken at a fairly late stage in the process. If the Government are to deny that this is the case, it would be helpful if they could set out why and what their evidence or reason is for needing these powers, when surely those powers already exist as far as the tribunals are concerned.

The other point is that the measures could create the risk of a conflict of interest, because solicitors could find that doing the right thing for their client or following their client’s instruction puts them at risk of having to pay a financial penalty if somebody decides that that is acting in an unreasonable way. One might have thought that alarm bells would be ringing in the Home Office at the idea of putting in place a procedure that will, as I said, apply only to lawyers operating on behalf of non-nationals. As was said quite clearly in Committee in the Commons, a lawyer

“could go along to the immigration tribunal and do something” that they

“might do without facing consequences in the social security tribunal, employment tribunal, tax tribunal or any other tribunal”.

It looks as though some special provisions are being made in the case of immigration tribunals that could lead to some sort of financial penalty having to be paid and that do not appear to apply in other tribunals. No doubt the Minister will want to comment on that.

If we really want to know a reason for the Government’s decision, I think that it came from the reply received in Committee in the Commons. The Minister said:

“Costs orders are rarely made and are generally considered only at the request of the other party. To encourage more use of those existing powers, clause 63”— as it was at that stage—

“provides a duty on the tribunal procedure committee to introduce tribunal procedure rules in the immigration and asylum chamber, which will lead judges to more regularly consider making a wasted costs order or an unreasonable costs order, or the new tribunal costs order introduced by clause 62”— as it was then. He went on:

“That will ensure that circumstances and behaviours that have warranted the making of costs orders previously will more often give rise to judicial attention.”—[Official Report, Commons, Nationality and Borders Bill Committee, 2/11/21; cols. 575-76.]

There does not appear to be much of an argument that the existing powers are not there; it is just that the Home Office has decided that the judiciary is not using them sufficiently often to its liking, so it is bringing in these two clauses. This could lead to some of the consequences I have already mentioned. They clearly apply only to immigration tribunals and not other tribunals, and only to foreign nationals and not British nationals, even though there is meant to be equality for those being dealt with under UK law. I do not say it with any hope, but ask anyway that the Government think carefully about the road they are going down with these two clauses.

My Lords, I thank the three noble Lords who have taken part in this debate. I should note for the record that I do not see the opposers of Clauses 76 and 77 in the Chamber, but I will carry on.

The Government are committed to making the immigration and asylum system more efficient, while also maintaining fairness, ensuring access to justice and upholding the rule of law. Representatives and participants have a role in ensuring that appeals run smoothly so that justice is served. We are aware that there are concerns about the behaviour of some representatives in immigration proceedings which can waste judicial and tribunal resource, leading to delays in the tribunal process overall. We are seeking to strengthen the tribunal’s ability to tackle such conduct, in order to improve the efficient running of the immigration tribunals.

Costs orders are one of the mechanisms available to tribunals to encourage good conduct in proceedings. Currently, tribunals can make wasted and unreasonable costs orders which relate to the legal costs of the parties. However, these mechanisms are infrequently employed and generally considered only at the request of the other party. Clause 76 creates a new power for tribunals to order a party to pay an amount which represents a portion of the tribunal’s costs. I should stress and expand on the costs we are talking about. The value of costs orders to be applied to specific behaviours will be calculated by the tribunal according to a defined schedule of typical costs to it, rather than being set at an arbitrary or punitive level. The tribunal will not seek to recoup all its costs relating to a particular case, just the portion which can be attributed as wasted due to the specified unreasonable behaviour.

This will allow the tribunal to make an order in relation to wasted tribunal resources in the same types of circumstances which would currently warrant a wasted or unreasonable costs order. An order can be made against “relevant participants”, which means legal and other representatives exercising rights of audience, and the Secretary of State, where they are a party and do not have legal representatives. The noble Baroness, Lady Hamwee, asked whether this might act as a deterrent and ensure that fewer representatives want to take on immigration work. We think it right that representatives should explain themselves if they are responsible for circumstances to be set out in the rules as warranting consideration of a costs order. However, where there is a reasonable explanation, no order would be expected; the tribunal continues to have full discretion as to whether to make the order. Therefore, these changes should not impact legal representatives who fulfil their duties to the court and remain committed to their work and ensuring justice for their client. I hope that also goes some way to answering the questions raised by the noble Baroness, Lady Chakrabarti.

On the basis that the Government have a very clear idea of how many instances there are of unreasonable behaviour, how many of the cases dealt with over the last 12 months fall within the category of unreasonable behaviour, for which the Government would expect these costs orders to be activated?

It will not surprise the noble Lord that I will have to write to him with those details, if I can get them; I do not have them.

I would certainly be interested to see them.

To encourage increased consideration of whether to make costs orders, Clause 77 provides a duty on the Tribunal Procedure Committee to introduce tribunal procedure rules in the Immigration and Asylum Chamber, which will lead to judges more regularly considering whether to make a wasted costs order, an unreasonable costs order or a tribunal costs order under the new Clause 76 provision. That will ensure that circumstances and behaviours which have warranted the making of costs orders previously will more often give rise to judicial attention. Existing case law identifies the types of circumstances and behaviours which have led to costs orders being made or considered, and the principles applied by the courts. These have included showing a complete disregard for procedural rules through, for example, abusing court processes in relation to evidence or the timing of applications.

Clause 77 requires procedural rules which identify circumstances or behaviours that, absent reasonable explanation, the tribunal will treat as warranting consideration of the making of a costs order. The rules thereby introduce a presumption that requires the representative or other relevant party responsible for such circumstances or behaviour to explain themselves and why such a costs order should not be made. To ensure fairness, Clause 77 applies both to the party’s representatives and to the Home Office direct. This will ensure the regular consideration of costs orders by the tribunal. However, importantly, the tribunal will retain absolute discretion as to whether to make an order at all in all cases.

Amendments 175ZC and 175ZD to Clause 77 would reduce the mandatory nature of the provision to a more passive one. This would work against the Government’s intention for this clause, which is to encourage the more frequent consideration of costs orders where they may be warranted, while upholding the tribunal’s discretion to decide whether an order should be made.

I promised to try to get those details for the noble Lord, Lord Rosser, and I will do so, but for the reasons I have outlined, I urge noble Lords to withdraw their opposition and not press Amendments 175ZC and 175ZD.

My Lords, I apologise to the House that I am my noble friend Lord Paddick, who opposed the clause standing part. We are not quite interchangeable—I made an assumption there—but I opposed it too.

Clause 76 agreed.

Amendments 175ZC and 175ZD not moved.

Clause 77 agreed.

Clause 78: Pre-consolidation amendments of immigration legislation