My Lords, I am grateful to the Minister for explaining this raft of instruments. I have a few comments and queries.
As my first query is on an order which is not before us but which is relevant, I do not expect an answer, but I want to use this opportunity to explain a point which I raised with the Secondary Legislation Scrutiny Committee, of which I am a member. The authority to carry scheme sets out to whom it applies. As one would expect, it applies to those who are subject to a temporary exclusion order. Statutory instrument 438—I apologise to the House that I did not make a note of its name—provides that, for the purposes of the service of the order, it can be served on an individual’s representative. I queried who a representative might be for this purpose. The advisers to the Secondary Legislation Scrutiny Committee took this up with the Home Office. I was concerned that, in the normal run of things, one might think that a representative was, for instance, a solicitor, but a solicitor who was not able to pass on the information to his client that an order had been served would find himself in a very difficult state and would probably disclaim the client.
An answer has come back and I want to get it on the record. It states:
“The Home Office agrees that … For adults … a representative must be a legal representative such as a solicitor or legal executive who acts on behalf of the person. The Home Office agrees that the Secretary of State cannot deem someone to be a representative in the absence of a clear relationship such as a … contractual relationship”.
As I have said, any lawyer thinking ahead a bit in that situation would disclaim that relationship. The Home Office also agreed that,
“for someone under 18 the term would cover the person’s parent or guardian”,
and that they could be a representative for this purpose. As I said, I am not expecting the Minister to comment on that.
Paragraph 22 of the scheme states that a person who,
“is refused authority to carry will be informed of that”,
in a notice by the carrier. It occurred to me to ask whether there is any penalty on the carrier who fails to pass on information—not information that they have been denied boarding, because they will have worked that out, but information of the contact telephone and email address that the individual needs to make further inquiries—and whether there should be any liability for compensation on a carrier who fails to pass on that information.
The Explanatory Memorandum to the authority to carry scheme regulations refers to,
“the need for an effective redress process in the case of mistaken identity. Administrative arrangements are in place to ensure that an individual is not mistakenly identified again”.
The second occasion would be pretty awful, but the first occasion of mistaken identity is pretty bad, too. I do not know whether the Minister has any comment on that.
With regard to the penalties for breach of the scheme, again I quote from the relevant Explanatory Memorandum. The consultees felt that the maximum £50,000 fine,
“was excessive and disproportionate, especially when compared to the possible fines imposed by other countries”.
Does the Minister have any information as to that comparison? There is also a feeling that the maximum penalty is unreasonably high, and I understand that there will be guidance on how the penalties will be applied. As this goes to the amount that will actually be levied in different circumstances, can the Minister tell the House when that guidance will be issued?
More generally, there has been a good deal of comment that the current authority to carry scheme is actually quite effective. What extensions from the current scheme will these various regulations and orders bring in?
6 pm
The Explanatory Memorandum to the Schedule 1 code of practice regulations talks of engagement with “key stakeholders”. Did those include NGOs, particularly civil liberties NGOs, which obviously have an interest in this issue?
We debated the primary legislation pretty fully, so I do not want to spend too much time on this, but it perhaps builds a little on the points my noble friend Lady Humphreys made. There is reference in the code of practice to officers picking up,
“indicators of abuse or neglect”.
That is beyond what the code is aimed at, but it is very welcome. Reading that, it occurred to me that, although there is reference to abuse and neglect, there is no reference to trafficking. Again, I do not except a reply tonight, but given the work that the Home Office and Parliament have been doing on slavery and trafficking, I wonder whether there is scope for a consolidated code or consolidated non-statutory guidance which brings together all the indicators that officers who may find themselves dealing with children in this situation might be looking out for in order to be able to identify children who are at risk. I appreciate that this is beyond the scope of these various instruments, but it might be very useful work to think about. This is entirely off the top of my head and I do not want to suggest unnecessary work to either the Home Office or UKBA.