My Lords, I often feel when I have the first amendment after Questions that I should explain to Members of the House that it may not be the showstopper that they will be expecting later in the afternoon. Also in this group are government Amendments 180 and 181, which also relate to the requirement to state nationality. I thank the Government for their amendments. I will leave the Minister to decide whether I am insufficiently grateful or was simply asleep on the job when we debated this previously.
Amendment 179A deals with the new section to the UK Borders Act introduced by Clause 144. The requirement to state nationality is not a casual inquiry. It will be a criminal offence not to give nationality in the circumstances set out and it will carry sanctions of a fine and imprisonment. We propose in this amendment that the requirement should be made only if the immigration officer or police officer concerned reasonably suspects the individual not to be British. Amendment 179B contains a similar amendment to the requirement to produce a nationality document. We regard this as appropriate if one is to have these provisions at all and believe they should reflect the Immigration Act of earlier this year in which provisions about searching a person or premises for a driving licence require,
“reasonable grounds for believing that a person … is not lawfully resident in the United Kingdom”.
Inserting a requirement of reasonableness seems entirely appropriate.
Government Amendment 180, which responds to an amendment proposed by the Joint Committee on Human Rights, of which I am a member, seems a little narrower than that proposal, which referred to,
“alternative documents sufficient that such a document would normally be issued by the relevant authorities”.
Our Amendment 180A takes what amounts to documents that enable the establishment of nationality a little further than what would normally be sufficient to establish it. It occurred to us, for instance, that when a person’s country is in a state of conflict it may not be possible to follow through to the establishment in the way that the government amendment requires. In other words, it would not be possible to fulfil the requirement.
Amendment 181 with regard to pilot schemes is welcome. Can the Minister tell the House where the pilots will take place, how long they will last and,
especially, what is “effectiveness”, which is referred to in the amendment? The Delegated Powers and Regulatory Reform Committee has commented on this amendment, which it calls “a sub-delegation of power”—which is one for the real aficionados of constitutional niceties—and said that it,
“would expect to be given a compelling justification for any such power of sub-delegation, why it is needed and how it is intended to be exercised”.
It very delicately made the point, about which I will not be so delicate:
“The scope … is potentially significant and could … allow the obligations … to be targeted on different classes of persons”.
As the Minister will be aware, we are concerned about the possibility of discrimination in the application of the provision.
The DPRRC went on to say that,
“‘piloting’ generally means that powers are being conferred to apply new statutory provisions unevenly and temporarily on an experimental basis. For this reason, we usually expect certain standards to be met in relation to pilot schemes”,
which it sets out as:
“the intended purpose of the pilot regulations”;
use of the affirmative procedure; a requirement on the Secretary of State to “consult interested parties”; to,
“provide on the face of the Bill for the maximum duration of any pilot regulations”;
and to require the Secretary of State to report on their “outcome and effectiveness” and lay the report before Parliament. The committee makes recommendations to that effect. The Minister will obviously be aware of the DPRRC’s report. I hope she will respond to each of those items.
Amendment 181A reflects our concern that it will be only too easy for the clauses to allow for racial and ethnic discrimination. It would not be the first time that assumptions have been made by law enforcement officers. The Home Office under the previous Home Secretary was particularly aware of the importance of stop-and-search powers not being applied in a discriminatory fashion and disproportionately. Our amendment would require an assessment in this regard. Amendment 181B would require a report on that assessment—not just on possible discrimination, but on effectiveness.
Amendment 181BA is on the same theme. We were concerned—I was going to say on these Benches, but it was not only on these Benches—during the passage of the Immigration Bill about what I have heard badged as the “offence of driving while black”: in other words, somebody subject to discrimination who is required to produce a driving licence or documents to prove he is entitled to drive. We suggest in this amendment, admittedly in deliberately quite short order, that the review should focus on the application of the provisions in the relevant clauses in this Bill and the sections in the Immigration Act, the effects of which focus in particular on ethnicity and nationality.
The Minister may regret putting the pilot scheme into the Bill rather than just announcing it, having all these questions asked of her, but we welcome the careful approach she has signified. We are keen to follow it through, as I hope our amendments and my remarks indicate. I beg to move.