My Lords, I will come to the points raised in this debate shortly but first I shall speak to the two government amendments in this group, standing in my name.
Amendments 75 and 76 would introduce a mens rea to the offence of driving while being unlawfully present in the UK. As currently drafted, the driving offence contained in Clause 42 is one of strict liability, on
which the noble Lord, Lord Rosser, raised some significant concerns in Committee. Following that exchange, we agreed to reflect further on the issue. I believe that we are of one mind in our intention to ensure that migrants are not prosecuted for this offence where they hold a genuine and reasonable belief that they are in the UK legally. The Government have been persuaded that it would be appropriate to place further safeguards on the face of the statute. These amendments introduce a mens rea element so that an illegal migrant will only commit the offence of driving while illegally present if they knew or had reasonable cause to believe they were in the UK illegally.
This will protect those who genuinely and reasonably believed they were here in the UK lawfully, while ensuring that other migrants cannot seek to avoid prosecution by avoiding contact 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. I invite noble Lords to support these amendments.
I am grateful to the noble Lord, Lord Paddick, for moving his amendment. I fully accept that he is very sincere, but he also has a professional track record as he has worked in these very complex areas of community cohesion here in the capital, and has done so with great distinction over a long career. Of course, the work of the noble Baroness, Lady Lawrence, for victims and improving community cohesion is well recognised. For that reason, it was very important that we had that meeting on 22 February where we sat down with officials to discuss the implications and workings of this clause. I am sure that they will testify to the fact that it was not necessarily an easy or cosy gathering. There were some strong feelings and concerns on all sides which were expressed at that time. One of the things that your Lordships’ House does repeatedly in many areas that is immensely valuable—officials may not have appreciated it fully at the time, but they have come to—is to bring great understanding, background and perspective to these very complex areas to pose the key questions that need to be addressed.
That said, I turn to the amendments, because they stem directly from that meeting. We went back afterwards and asked how we do this. As the noble Lord rightly pointed out, the Home Secretary is acknowledged to have made significant steps in improving community cohesion, in particular in tackling abuse of stop-and-search powers. That is why numbers have fallen. Part of the reason why that happens is that the number of incidents is now recorded so we can see what is happening on the ground. I set out in my letter—more like an epistle, as the noble Lord, Lord Alton, might say—to noble Lords over some three or four pages on 1 March how that operated in practice and the effect it was having.
We have brought forward two things: to recognise that we are making significant progress to improve community relations, and to maintain the confidence of all communities in the police to act fairly and justly, as my noble friend Lord Deben and the noble Lord, Lord Green, said. Nothing must be done to put any of that at risk. That is why we are proceeding cautiously in this area by introducing a pilot scheme, as mentioned.
On the concerns that focused on police use of these powers with particular groups, these clauses are important and necessary. We do not issue driving licences to illegal migrants and we revoke driving licences held by them. So far we have revoked some 16,000 UK driving licences held by illegal migrants, but less than 1,000 have been returned, even though it is a criminal offence to retain them. As these licences hold a value as a form of identification that can help an illegal migrant settle in the UK, it is important that they are removed from circulation. Clause 41 provides the best opportunity for us to do this when a person is apprehended as an illegal migrant.
The Government cannot, however, revoke foreign-issued driving licences. Without Clause 42, illegal migrants would be able to drive on valid, foreign-issued licences without consequence. This, in turn, facilitates their ability to stay unlawfully in the UK, to look for work and to work illegally. Illegal immigrants should not be driving on our roads. They have shown a disregard for the laws of this country—that is the very point that my noble friend Lord Deben raised. Therefore, it is absolutely right that we legislate to ensure that they are unable to do so.
I re-emphasise the following points. First, these clauses do not create new powers to stop persons or vehicles. Secondly, we intend the police to use these powers reactively after they have already stopped a vehicle for an objective reason—I will come back to that particular use of words, as the noble Lord, Lord Alton, asked me to—such as a driving offence. I emphasise that these powers will not be used by the police to stop vehicles simply to check the immigration status of the driver. That is an important distinction between the roles and responsibilities of the police and of immigration enforcement. It is one that we recognise should be maintained. Thirdly, these powers must be used proportionately. To that end, we have put in place safeguards against misuse.
Finally, I reiterate that the Government are absolutely clear that no one should be stopped, under existing police powers, on the basis of their race or ethnicity. This would be unlawful. The Government also remain absolutely clear in their commitment to reform the use of police stop-and-search powers so that they are applied in a way that genuinely protects our communities. We would not bring forward any proposal that we believe might undermine this work.
We have listened carefully to the concerns raised about these clauses. In response, the Home Office will go further. We will issue guidance to police and immigration officers on the operation of these powers and we will consult publicly on that draft guidance. This consultation will take place before implementation. It will raise awareness and provide an important gateway through which communities will be able to consider and comment on, among other things, appropriate safeguards.
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The Home Office will also pilot use of the search power contained in Clause 41 in one or two police areas before we proceed with a national rollout. This will allow us to test the operational details so that any impacts can be identified by the pilot scheme and addressed. This approach is consistent with that taken
to implement similar police and immigration search and seizure powers for nationality documents to identify foreign nationals when they are arrested for criminal offences contained in Sections 44 to 46 of the UK Borders Act 2007.
Turning to some of the points raised, my noble friend Lord Deben asked about training for the police. In 2014, the Home Secretary commissioned the College of Policing to conduct a comprehensive review, at all levels in the police force, of the use of stop-and-search powers. It is intended that the training will focus on effective and fair searches. It will include awareness and the ability of the police to stop and search if they fail their stop-and-search assessments. Unconscious bias training in particular will impact on these search powers.
On the particular meaning of the words “reasonable grounds”, this can never be supported on the basis of personal factors. In practice, this means that, unless the police have specific information or intelligence that provides a description of the person believed to be carrying a UK driving licence and that person is in the UK illegally, the following cannot be used alone, in combination with each other or with any other factor as the reason for searching any individual. This is set out in Police and Criminal Evidence Act Code A, which will be reflected in specific guidance issued to the police and other enforcement officers in the operation of Clause 41.
On parliamentary scrutiny, I will ensure that a copy of the draft guidance is placed in the House Library when the consultation is launched. I will ensure that a report detailing the outcome of the consultation is also put in the Library. I will go a little further, because I do not think that that response quite addresses the point we were getting at. We have some particular expertise in this House. I would certainly like to make sure, when the consultation document is published, that we reconvene—with the permission of the Opposition Front Bench—in particular with the noble Lord, Lord Paddick, and the noble Baroness, Lady Lawrence, to meet with officials again when we have that draft consultation to get the noble Lord’s and the noble Baroness’s perspective on that. How the pilot scheme will be framed will also be looked at. Again, we would value the noble Lord’s and the noble Baroness’s perspective. We will make sure that that happens before they are brought forward and placed in the Library, and before the pilot commences.
The noble Lord, Lord Rosser, asked a perfectly reasonable question on what will happen after the consultation and the pilot have taken place. Because the consultation will be published and the pilot will have taken place, we will have an opportunity to discuss again how the guidance ought to be implemented. Of course, that means that all options are open following such a trial, otherwise it would be pretty pointless having a consultation. The consultation is a genuine one, because this is an area where progress has been made. We are dedicated to the fact that we will not see anything happen that could possibly be a regressive step in this very important area of social cohesion, while at the same time ensuring that the Government can implement their right in the manifesto to introduce these offences for people who are illegally here in the UK.