House of Lords
Introduction: The Lord Bishop of Rochester
Electoral Fraud
(10 years, 1 month ago)
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Lord Naseby
To ask Her Majesty’s Government, in the light of the recommendations of the recent Electoral Commission report Electoral Fraud in the UK, what action they propose to take to tackle electoral fraud.
Lord Wallace of Saltaire (LD)
My Lords, we are carefully considering the Electoral Commission’s report and recommendations and will respond in due course. We are clear that any changes to the electoral system should be proportionate and not impose unnecessary barriers to participation by legitimate voters.
Lord Naseby (Con)
My Lords, I welcome that Answer, as far as it goes, and pay tribute to the work of the Electoral Commission. However, are there not three key dimensions to its report: first, the integrity of the registration; secondly, ensuring that the person voting is the person who is on the register; and, thirdly and lastly, the accuracy of the count? I have had the privilege to win elections by 179 and 141 votes. Against that sort of background, can my noble friend give a commitment that there will, in the next Session of Parliament, be legislation on at least all these three dimensions of electoral law?
Lord Wallace of Saltaire
My Lords, I am not sure how one would legislate on the accuracy of the count. We have a whole system of poll watching, which noble Lords are all well aware of and which most of us, I am sure, have taken part in many times, to check the accuracy of the count. On the question of moving towards individual registration, the introduction of the national insurance number as a verifier is intended as a check on who is being registered. On the question of personation and checking on those who turn up, we are watching that very carefully and are now checking with police officers on reports. All the evidence we have is that the level of personation is extremely low.
Lord Tyler (LD)
My Lords, in contrast to my noble friend Lord Naseby, I was once elected with a majority of nine, so I take a considerable personal interest in this matter. On 6 February, we had some exchanges on this issue when my noble friend the Minister emphasised that the risk in this area is of course with postal votes. Can my noble friend now confirm whether every single postal vote cast in next month’s local and European Parliament elections will be checked against a personal identifier?
Lord Wallace of Saltaire
My Lords, that was the original intention of the 2006 Act. However, representations from electoral registration officers that that would be difficult led to the Act stating that a minimum of 20% should be checked. In recent elections, we have achieved virtually 100% of postal votes being checked, and we are now confident that with the co-operation of electoral registration officers, it will be 100% in the forthcoming general election.
Lord Kennedy of Southwark (Lab)
My Lords, there must be zero tolerance for those found breaking the law, but any attempt to prevent millions of law-abiding citizens from being able to cast their vote by post would be hugely disproportionate. Why have the Government done absolutely nothing to get the more than 6 million of our fellow citizens who are presently not registered on to the electoral register? IER, when it is introduced, is not going to solve the problem; it is going to make it worse.
Lord Wallace of Saltaire
My Lords, as I have said before at this rostrum, the Government are doing a great deal to maximise the level of registration. We all recognise that we will never reach 100%. The proportion registered had been going down over the previous 15 years and we recognise that there are particular problems, especially with young people. A range of government schemes is currently under way, in co-operation with a range of non-governmental organisations, to raise in particular the number of disadvantaged groups and young people who register to vote. Online registration is but one of the things that we are doing.
Lord Dobbs (Con)
My Lords, the basis of any fair electoral system must surely be one voter, one vote. Yet the constituency of the Isle of Wight has more than 111,000 voters while the outer islands constituency has barely 22,000. Is my noble friend able to offer any sensible explanation as to why a vote in the Isle of Wight—or in East Ham, Manchester Central or North West Cambridgeshire—is worth only one-quarter or even one-fifth of a vote elsewhere? Does he believe that this is in any way liberal or even vaguely democratic?
Lord Wallace of Saltaire
My Lords, I am sure that the noble Lord, Lord Dobbs, understands that the process of politics is not entirely rational. In the most recent discussions of electoral redistribution, there was an active campaign to prevent the Isle of Wight being split and there was an active campaign to exempt the various Scottish island constituencies. That is the reason for these exceptions to the general rule.
Lord Wright of Richmond (CB)
Will the Minister tell the House whether either the Government or the Electoral Commission have given any thought to following the example of Australia, Luxembourg and a few other countries of making voting compulsory?
Lord Wallace of Saltaire
The Government have considered everything, but that is not an idea that has led to enormous enthusiasm within government or, I suspect, within this House.
Lord Brooke of Alverthorpe (Lab)
My Lords, is it not true that had the Government not taken an irrational decision, an ID card would now be being introduced? We would have been solving problems with registration because everybody would have been entitled to registration. They could have been checked for validity and they could have been voting. We would not have the problem to the same degree that we have with border control, immigration, the NHS, landlords and a whole range of different databases that have now had to be created by this Government. Will they not think again on that?
Lord Wallace of Saltaire
My Lords, we have been through that debate over an extended period. The Government are not persuaded that the original ID card scheme was necessary. It would be extremely costly. As far as voting is concerned, the level of allegations of voting fraud and impersonation is remarkably low. There were in the order of 179 allegations of different sorts of electoral fraud last year, for example, which is within a range of confidence as to the problems we face.
Lord Lexden (Con)
Many believe that postal voting fraud is widespread. Is my noble friend confident that it is not?
Lord Wallace of Saltaire
My Lords, postal vote fraud has always been there. I am old enough to remember constituencies in which representatives of at least one party would go round old people’s homes and fill in the ballot papers with the matron. I will not name which parties might have been engaged in that. That is not new. Postal vote fraud is a problem with which we are all concerned. That is why postal vote identifiers have now been tightened up.
Lord Phillips of Sudbury (LD)
My Lords, having correctly pointed out the appallingly low turnout for elections and, on top of that, the appalling low registration figures, does my noble friend accept that a major contributor to that parlous state of affairs is that so many young people feel outside the tent, so to speak, vis-à-vis politics, which is complex, and that people need some sort of education before they leave their schools? Will the Government do something about that?
Lord Wallace of Saltaire
My Lords, the noble Lord, Lord Tomlinson, has a Question on exactly that to be debated next week, which I look forward to answering. I must say that during the transition to individual electoral registration, the level of registration that we have so far achieved has been much higher than some of us originally worried might be the case.
National Minimum Wage
Lord Young of Norwood Green
To ask Her Majesty’s Government what plans they have to mark the 15-year anniversary of the minimum wage, which took effect on 1 April 1999.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)
Since 1999, the national minimum wage has grown faster than average earnings without an adverse effect on employment. Going forward, we want to ensure that the benefits of growth are shared equally. The best way to mark this anniversary is to commit to continue to deliver benefits to the low paid through the national minimum wage for the next 15 years and for many years thereafter.
Lord Young of Norwood Green (Lab)
I thank the Minister for his reply and congratulate the Government on their new-found conversion to the benefits of the minimum wage—and even the living wage. It makes a pleasant change from the previous opposition of the Conservative Party and the CBI and their predictions that it would cause massive job losses. Does the Minister agree that the minimum wage depends on effective enforcement? What are the latest figures and are we actually naming and shaming those who are still not obeying the law? Are there any plans to increase the minimum wage?
Viscount Younger of Leckie
My Lords, the naming and shaming scheme, as the House will know, came into effect on 1 October 2013. The new rules are part of the Government’s efforts to toughen enforcement of the national minimum wage and to increase compliance. By naming and shaming employers, it is hoped that bad publicity will be an additional deterrent to employers who would otherwise be tempted not to pay the national minimum wage. The Government have accepted the Low Pay Commission’s recommendation of the first real increase since 2007. We welcome its assessment, and 2014 could mark the start of a new phase of bigger real increases in the minimum wage.
Lord Forsyth of Drumlean (Con)
My Lords, does my noble friend agree that what matters is not the minimum wage but how much of your wage you take home in pay? Is not the Chancellor to be congratulated on implementing the policy of raising the tax threshold so that more of that money is kept—a policy, incidentally, first put forward by my noble friend Lord Saatchi some years ago but which, rather like pedestrian crossings in a constituency, has been hijacked by the Liberal party?
Viscount Younger of Leckie
My noble friend makes a very good point: raising the tax threshold has been extremely important in helping the low paid. The Government are taking other measures, including on fuel duty, which remains frozen. The House should realise that wages in the private sector are now outstripping inflation and the OBR has predicted that that will continue until 2018. Indeed, current wage growth in the manufacturing sector is as high as 3.2%, so we are going in the right direction.
Lord Morris of Handsworth (Lab)
My Lords, will the Minister follow the good practice of the Mayor of London and support not just the minimum wage but the living wage?
Viscount Younger of Leckie
The noble Lord makes a very good point about the living wage. It is good to note that 80% of all employers pay above the living wage, but I am the first to say that there is much more to do. The Government support employers who choose to pay the living wage. However, decisions on what wages to set are for employers and workers to agree, as long as employers pay at least the national minimum wage.
Baroness Humphreys (LD)
My Lords, in too many instances, the minimum wage has become the maximum wage that employers are prepared to pay, leaving many workers trapped on low pay. As the economic recovery begins, what encouragement and support can the Government give to employers, particularly small businesses, to redress the balance and ensure that their employees can also reap the benefits of our improving economic situation?
Viscount Younger of Leckie
My noble friend may be alluding to the recent report from Professor Sir George Bain on the future of the national minimum wage. We are considering all the recommendations and their implications in advance of the 2015 LPC agreement. I agree with George Bain’s finding that the national minimum wage has been a huge success in improving low pay and reducing exploitation in the UK labour market. The Government, however, think that the simplicity of the national minimum wage and the independence of the LPC remain key to its success.
The Lord Bishop of Leicester
My Lords, in view of what the Minister has said about there being much work to do on the living wage, does he agree that a good way to mark this anniversary would be to commission an independent inquiry into the actual effects of raising the minimum wage to the living wage for everyone?
Viscount Younger of Leckie
I cannot comment on whether there should be another inquiry but it is fair to say that this strays into the territory of poverty. Perhaps I may reassure the House that this Government are very much focusing on poverty, which is very complex. There are all kinds of root causes for poverty, including household food security, and we are looking at this very carefully as well in the light of the national minimum wage.
Lord Kinnock (Lab)
Does the Minister share my wry satisfaction at the fact that when I first proposed the national minimum wage as policy, I was roundly condemned by Conservatives yet now we have a Chancellor of the Exchequer who says that he aspires to increase it? Should not the Government take up the suggestion of the right reverend Prelate and begin to replace the national minimum wage with the living wage, which would mean a shift from £6.50 an hour to £7.45 an hour, and by that means begin to compensate the national minimum wage earners—who in real terms have lost £1,000 a year since 2000—and reduce the 9.4 million households which now exist at below the minimum income standard while, in the bargain, saving the Exchequer £5.7 billion a year because of the reduction in the need for the subsidies on which very low wage earners have come to depend?
Viscount Younger of Leckie
The noble Lord will know that the Government follow the guidance from the Low Pay Commission and have accepted all its recommendations. The new rate from October, which is a 3% rise in the adult rate, will mean that around 1.25 million low-paid workers will enjoy the biggest cash increase in their pay packets since 2008. As I have said, we encourage all employers to pay above the national minimum wage and to pay the living wage.
Senior Judiciary: Women
(10 years, 1 month ago)
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Baroness Garden of Frognal
To ask Her Majesty’s Government what assessment they have made of the number of women in the senior judiciary; and what steps they are taking to increase that number.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Judicial Office produces and assesses annual statistics on the diversity of the judiciary, including gender diversity. The last publication was in April 2013 and the next one is due shortly. The Government are committed to playing their part in increasing judicial diversity, which includes the number of female senior judiciary. We introduced measures in the Crime and Courts Act 2013 to increase judicial diversity, including the equal merit provision and salaried part-time working.
Baroness Garden of Frognal (LD)
I thank my noble friend. Although the Government should not interfere with judicial independence, there is public interest in the judiciary’s composition, which the Government have a responsibility to monitor. Given the lack of women in the senior judiciary, will the Government encourage a fresh look at the criteria for those roles to ensure that the competitions, for some of them at least, attach weight to the distinct qualifications and experience that women candidates have and take account of the different ways of operating and career paths of these women compared with the men against whom they are being assessed?
Lord Faulks
This is a difficult problem and the more that I have read about it the more difficult I think it is. It was much debated during the passage of the 2013 Act. The Government are doing their best to encourage diversity but the problem probably starts much earlier, in the structure of the relative professions. The number of women applicants for High Court positions is, sadly, still relatively low. That is less the case in the lower judiciary. The position is that there is one woman in the Supreme Court, and 19 out of 108 High Court judges are women, as are seven out of 38 Lords Justices in the Court of Appeal. This is a regrettable state of affairs and, clearly, we hope that things change.
Lord Beecham (Lab)
My Lords, I declare a paternal interest since my daughter sits as a part-time district judge. Given the high proportion of women among criminal and family law practitioners in particular, will the Government rethink the position that they set out in their response to the Transforming Legal Aid consultation in which, in relation to the need to promote diversity, they said that even if the reform of legal aid were,
“to make the attainment of the objectives more difficult, we consider that the changes are necessary and justified”?
Will the Government accept that they have a responsibility in this area, rather than simply asserting, as they did in the same response, that for underrepresented groups like women and BME aspirants, the primary responsibility is that of the Bar and the solicitors’ profession?
Lord Faulks
I agree with the noble Lord that the primary responsibility is for the professions: the Bar Standards Board and the Solicitors Regulation Authority. The question of legal aid, we submit, is not the right instrument in order to encourage diversity. The provision of legal aid depends upon trying to target those most in need of legal aid in accordance with the available budget.
Lord Mackay of Clashfern (Con)
My Lords, how many women have applied over the past 10 years for senior judicial appointments—that is to say, the Appellate Committee of the House of Lords, the Supreme Court and the heads of division—and how many were appointed?
Lord Faulks
My Lords, currently we do not disclose details of the number of applicants for the Supreme Court or the heads of division. There is a very limited pool from which applications can be made, and therefore it is thought that the publication of this information could lead to speculation about the identity of candidates and possibly discourage applicants. I can say, however, that in the High Court 81 applications were received in 2013 of which 17% were appointed.
Baroness Butler-Sloss (CB)
My Lords, I wonder whether, as a former woman judge, I might add something. I agree with what the Minister said about the problem being further down, but I wonder whether the Government might look at women who leave the professions, both the Bar and solicitors, because of the stresses of family life, who ought to be encouraged back several years later but will require some training? Nowadays, it is of course possible to go up the ladder, as indeed I did—my husband called it a hawsepipe—to go from a fairly junior position through to the High Court and even higher. You need to get the women back who have left because they have skills that are underused.
Lord Faulks
The noble and learned Baroness is of course right. That is probably a significant reason why more are not applying for the higher judiciary. There is flexible part-time working as a result of the 2013 Act, and I think that more people should be encouraged to sit part-time earlier in their career in order to develop the career pattern that will then make them more inclined to apply, and of course it is important that women who otherwise might not apply do so. I entirely accept that. It is something that the sub-committee on diversity and the judicial diversity task force, which are both concerned with this, are looking at very carefully.
Baroness Scotland of Asthal (Lab)
My Lords, has the Minister undertaken any analysis of those who have applied but who have not succeeded? Is there any support for any such applicants to make them better able to make a successful application on the next occasion?
Lord Faulks
I think I have already given the answer regarding the percentage of applicants to the High Court Bench. One of the ways of fulfilling what the noble and learned Baroness has said is the system of mentoring. This is one of the suggestions being considered by the judicial diversity task force. The Lord Chief Justice is particularly keen to encourage diversity, and I know that the suggestion that the noble and learned Baroness makes is one that is very much on his mind.
Baroness Prashar (CB)
My Lords, does the Minister agree that the progress of women at senior levels of the judiciary has been slow because what constitutes “merit” is defined predominantly by men in the senior judiciary and then assessed by panels that are predominantly made up of men?
Lord Faulks
As the inaugural chair of the Judicial Appointments Commission, the noble Baroness speaks with great authority. I entirely accept that the definition of merit is somewhat elusive, particularly equal merit. Whether you decide that there is clear water, as Lord Sumption said in his lecture on the subject, between all candidates or whether you say that there is equal merit between quite a number who have risen to the relevant level, it is then permissible to decide questions of diversity at that level in the appointment. Of course, there is plenty of anecdotal evidence that there has been too much a question of men seeking to promote men of a similar type.
BBC Licence Fee: Non-payment
Lord Fowler
To ask Her Majesty’s Government what plans they have to implement the decriminalisation of non-payment of the BBC licence fee.
Lord Gardiner of Kimble (Con)
My Lords, the Government recently supported an amendment to the Deregulation Bill concerning licence fee non-payment that sets out a duty for the Secretary of State to ensure a review of the TV licensing enforcement regime and introduces a new power for the Secretary of State to change the sanctions that apply for failing to have a TV licence. Whether to decriminalise non-payment will be considered in the light of the review.
Lord Fowler (Con)
My Lords, although I sympathise with the general argument, I wonder whether my noble friend thinks it is significant that some of the most enthusiastic legal and penal reformers in this area appear to be declared opponents of the BBC. Will the Government ensure that in guarding the interests of those who cannot afford to pay, they do not assist those who can afford to pay but simply want to evade the licence fee?
Lord Gardiner of Kimble
My Lords, in the review, the timing of any such change is crucial. The potential impacts on licence fee payers, the court system, the BBC and businesses must be considered. The review will be thorough. Clearly, it is very important that we achieve the best outcome for licence fee payers, particularly, as my noble friend said, those on lower incomes.
Lord Stevenson of Balmacara (Lab)
My Lords, the process we are talking about is contained in a Bill that has yet to appear in your Lordships’ House. Therefore, to some extent, we may be prejudging the final outcome. Nevertheless, as the Minister said, there is a duty, as the Bill is currently constituted, for the Secretary of State to hold a review. Since the review may report before the BBC charter review takes place, can the Minister confirm that no decision will be taken until after the licence and charter have been decided?
Lord Gardiner of Kimble
My Lords, the BBC charter review is the point at which the Government can consider all aspects of the BBC, including its funding. Indeed, the Government have yet to set out the timing, process and scope of the charter review. The review which would be part of the Deregulation Bill will be part of that process.
Lord Purvis of Tweed (LD)
My Lords, in the event of a review, will it make sure that the differing procedures for criminal and civil law in Scotland are taken into due consideration? Given that this is an issue for the future, and that the Scottish Government have made rather glib comments in their White Paper on independence that they would adopt an identical licensing system for an independent Scotland, what contact have the Scottish Government made with Her Majesty’s Government with regard to the potential set-up costs and ongoing licensing operational costs of a separate system within Scotland in the event of independence?
Lord Gardiner of Kimble
My Lords, the review of the potential impacts and outcomes of decriminalisation must involve all parts of the United Kingdom, especially the devolved nations. As part of the process, it will be appropriate and necessary to consult the devolved Administrations on these matters. Of course, this legislation has not yet come to your Lordships’ House. I am sure there will be many considerations to be had.
Lord Grade of Yarmouth (Con)
My Lords, I declare an interest as a former chairman of the BBC. Decriminalisation of non-payment of the licence fee is a very attractive idea. However, if you remove compulsory payment of the licence fee, you inexorably push the BBC into a ratings war and probably into subscription, which would inevitably be the death knell for the great tradition of public service broadcasting in this country. May I seek my noble friend the Minister’s reassurance that the Government will tread exceptionally carefully in examining this issue?
Lord Gardiner of Kimble
My Lords, clearly the tradition of public service broadcasting is very high in this country. As I said earlier, we will be looking at these matters in the review in the interests not only of the licence fee payer but of the BBC. It is interesting that the BBC has already said that it sees the amendment in the other place as an issue that should be discussed in the round. Indeed, the feeling is that this amendment appeared to be in the line of that.
Lord Barnett (Lab)
My Lords, I declare an interest as a former vice-chairman of the BBC. I strongly agree with the noble Lord who spoke just now, and with the need for a review—but it depends who is doing it. We have to be very careful that the review does not result in any real harm to the BBC which, in general, does not need any major changes.
Lord Gardiner of Kimble
My Lords, the important thing is that this is going to be a thorough review. It would not be wise of me to prejudge any of the decisions and discussions that will be had. The amendment would mean that the review would start within three months of enactment, and should then take no longer than 12 months. All the points that the noble Lord has raised will be part of that review.
Lord Deben (Con)
Yes, but will my noble friend accept that it would be a sad day if the BBC, which has a reputation throughout the world, were undermined by the kind of underhand technical pressures which are put about? We really ought to recognise that, on these Benches, as on the Benches opposite, there is strong support for the independent BBC, funded as it is, and with sufficient funds to go on being an exemplar to the world.
Lord Gardiner of Kimble
My Lords, the new Clause 20 is about a discussion about whether there should be a civil monetary penalty regime. Without wanting to prejudge, I do not think that it is at all intended as an undermining of public service broadcasting. Clearly, the important thing is that the BBC remains independent; that is a key feature of our national life.
Lord Grocott (Lab)
As it seems that there is still no absolute clarity as to the form that the review should take, may I make a suggestion—unauthorised from these Benches—that two critical people to include as part of the review process would be the noble Lords, Lord Grade and Lord Fowler?
Lord Gardiner of Kimble
I shall certainly make sure that the Secretary of State is mindful of my noble friends’ names.
Royal Mail
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)
My Lords, I would like to repeat the Answer to an Urgent Question given in the House of Commons:
“The National Audit Office has today published its report on the Royal Mail sale of shares. The report confirms that we achieved our primary objective of securing a sale of shares, allowing Royal Mail to access the private capital it needs to invest and to thrive. As a result, the taxpayer now faces reduced risk of having to provide financial support to the universal postal service.
It was right that we took a cautious, measured approach to the sale of shares. This approach was taken in light of our primary objective, and reflects the considerable risks we faced due to industrial relations and challenging market conditions.
The price range for the shares was set following a comprehensive programme of engagement with over 500 potential investors. This was benchmarked against valuations of comparable postal companies. I am clear that this was the correct approach to secure a successful transaction.
A more aggressive approach to pricing would have introduced significantly greater risk. The advice that we received in this respect was unambiguous. There was no confidence that a sufficient number of buyers would offer a significantly higher price. A failed transaction and the retention of Royal Mail in public ownership would have been a very poor outcome for the taxpayer, as the NAO report confirms.
Achieving taxpayer value is about securing both short-term and long-term benefits. In the short term we have delivered a successful transaction which raised £2 billion for the Exchequer, enabled over 690,000 members of the public to buy Royal Mail shares, and put in place the largest employee share scheme of any privatisation in nearly 30 years. In the long term, we have reduced the ongoing risks to the taxpayer by putting Royal Mail in a position where it can operate commercially and raise its own funds if needed. In doing so, as the NAO confirms, we have achieved our key objectives. The sale of shares in Royal Mail has delivered on our commitment to protect the universal postal service and safeguard vital services for the taxpayer”.
Lord Young of Norwood Green (Lab)
My Lords, those of us who sat through the rather long and tortuous privatisation Bill remember saying to the Government at the time, “Beware of undervaluing Royal Mail, and beware of a quick sale”. I could not help smiling when the Minister said that the advice was unambiguous. It was unambiguously wrong, and most of those investors have sold most of the shares that they bought at a handsome profit. Given that the Government said when Royal Mail was sold off that its share price should be judged in three months’ time, does the Minister share my concern that taxpayers have been short-changed by the Royal Mail fire sale, or does he still believe that this legitimate concern is little more than “froth”? Does the Minister agree, after today’s findings by the National Audit Office, that it could have been possible to get far better value for taxpayers had the Government adopted a different timetable and perhaps not sold as many shares?
Viscount Younger of Leckie
I do not agree with the sentiments of the noble Lord. Value for money for the taxpayer with Royal Mail is not just about raising money on day one but about removing the risk of the taxpayer having to fund the universal postal service in the future, and creating the conditions for the company to operate successfully and raise its own funds if needed. It is about the Government setting a good price when they sell their remaining stake and minimising the risk of the public having to subsidise the business in future. That is what we have achieved, and what the NAO has acknowledged.
Lord Haskel (Lab)
The coalition Government are not the first to be badly advised by the City, and probably not the last. Will the Government therefore say that they got it wrong and apologise, in exactly the same way that they keep asking the previous Labour Government to apologise for their mistakes?
Viscount Younger of Leckie
My Lords, we have absolutely no apology to make. I take this House back to the conditions in October 2013. With advice from the advisers, who were chosen through a proper process, the price was set according to the likely demand. As I mentioned earlier, at least 500 investors were consulted. It is fair to say that there is no evidence to suppose that if the price range of 260p to 330p had changed—330p being at the upper end of that range—it would have made any difference. Therefore, we feel that we got it right at the time, and do not have any apology to make.
Lord Stoneham of Droxford (LD)
My Lords, one of the sad things about this is that at the last stage of what was otherwise a very successful privatisation it seems to have been undervalued. What lessons have the Government learnt from this? What was the implication for the advisers? Did they take a reduction in the price they charged the Government for this performance, and would the Government use those advisers again?
Viscount Younger of Leckie
The occasion will not arise for those advisers to be used, but I am pretty sure that we would use them again. Again, much work was done with those well chosen advisers. On the fees, which my noble friend raised, the investment banking syndicate fees were split into a success fee of 0.9% and a discretionary bonus of 0.3%. However, I hasten to add that that particular aspect is under review, and no decision has been made on it. There are always lessons to be learnt from these IPOs. I reiterate that this is one of the largest IPOs that has been handled for many years. One of the lessons that we should take on board—again, it is right that we should deal with it in this way—is the question of the book-building process. That is very much the traditional way in which one can build up shares in an IPO. There are other, novel ways of doing it, but we believe that it would have been too risky for such an important IPO to have taken that course.
Lord Donoughue (Lab)
My Lords, this is a devastating report for the Government, as it makes it clear that this was pure underpricing. In future privatisations, will the interest of the public taxpayer be a priority, and not just achieving a successful fire sale? Will the Minister also concede that while those City advisers were apparently impressively sharp, the Government, the department, the Ministers and the officials were, in the word used by the chairman of the Public Accounts Committee, clueless?
Viscount Younger of Leckie
First, I do not agree with the first comment that the noble Lord made. He also made reference to a fire sale. I think it was said at the time, in October—I think by me—that this would be the longest fire sale in history, because my noble friend Lord Heseltine had mooted the idea of an IPO of Royal Mail many years ago. Indeed, the Benches opposite will know of the input into this from the noble Lord, Lord Mandelson. The National Audit Office report was not devastating but said that many of the decisions that we took were good; it said that we were right to be cautious and that it would have been wrong to take risks with such an important public asset as Royal Mail, or even to take risks with taxpayers’ money that would have been needed to support the company in continued public ownership. Had we adopted a more aggressive approach to pricing, there was a real risk that the deal would have failed. As the NAO says, the Royal Mail under public ownership would be worth much less than the sale proceeds.
Lord Dykes (LD)
I declare an interest as a small shareholder and ask for the Government’s view on the need to restore some of the quality of the longer-term institutional shareholders. In view of what has happened in the short-term transactions, would the Government consider the merits of holding on to their 30% stake longer than originally intended?
Viscount Younger of Leckie
In terms of holding on to stakes, it is good to note that at least 50% of the original institutional investors have retained their investment, which shows an element of consistency. I point out again that nearly 700,000 retail investors took up the offer and employees took up 10% of the offer. To that extent, it has been a success.
Lord Lea of Crondall (Lab)
My Lords, I have the Hansard for May 2011, when many of us were on to this very point right through the Bill, as my noble friend on the Front Bench said. Could the Minister comment on the validity of the following point? Having moved an amendment to say that any initial public offering—which was initially denied by the Minister as being at all feasible—should be phased, I said that,
“if the Bill reaches the statute book in its present form, in a year or so we will almost certainly have a repeat of the public interest being prejudiced by the modalities of the sale by merchant banks, as has happened some times before”.—[Official Report, 4/5/11; col. 463.]
Is the mistake made by Mr Vince Cable simply that he had a gentleman’s agreement, according to the report, with people in the merchant banks in the City, yet he was not making it with gentlemen? They have put £3 billion into their own pockets. Is that not the most scandalous announcement that we have heard from the Government in all their life?
Viscount Younger of Leckie
I think that the gist of the noble Lord’s question referred to the timing of the sale. I remind him that there was industrial action hanging over this IPO, and much discussion was had over whether one should delay or stay. However, it was very clear that one should continue because the industrial strife was not necessarily going to be resolved and that was not going to impact on the timing. That is why we went ahead at that time.
Lord Foulkes of Cumnock (Lab)
I am quite astonished by the Minister’s complacency on this. The taxpayer has lost £750 million because of the incompetence of the Government. As my noble friend said, they were warned about it, not just in this House but by Chuka Umunna, Ian Murray and our spokesman in the other place. Is not it about time that the Government apologised for making the taxpayer lose £750 million? If they do not apologise for that, what will they apologise for?
Viscount Younger of Leckie
My Lords, I say again that there is no apology to make. The process was robust in setting a price at the level at which it was set. I say again that there was no evidence of demand for the shares above 330p. Much work went into it and it was the right decision at the time. It is all very well for the noble Lord to say this with hindsight, but that is what it was at the time.
Baroness Symons of Vernham Dean (Lab)
My Lords, surely, the point is that this is not being said with hindsight because these points were made at the time of the sale. I am bound to say that, listening to the Minister, for whom I have a great deal of respect, I agree with my noble friend Lord Foulkes: I am astonished by the complacency of the Government’s position. He talks as if there was no criticism in the NAO report, but there is clearly a criticism when the taxpayer has lost out to the extent that it has because the Government relied on the advice of those who stood to gain from giving it.
Viscount Younger of Leckie
I do not say to the noble Baroness that there was no criticism. In fact, my noble friend Lord Stoneham asked me to point out whether lessons should be learnt. I gave my view, which is that there are always lessons to be learnt. Therefore, what the noble Baroness has said is not fair. However, there was very little criticism in the NAO’s report. It was a good report and we are pleased with it. We are also happy with the success of this IPO. We took a cautious view and we were right to be cautious.
Immigration Bill
(10 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
17:21 - Division on Amendment 9 - Ayes: 54 / Noes: 360 - Amendment 9 disagreed.
19:16 - Division on Amendment 11 - Ayes: 164 / Noes: 205 - Amendment 11 disagreed.
Lord Taylor of Holbeach
“(2) Where a person (“P”) is liable to be or has been removed from the United Kingdom under subsection (1), a member of P’s family who meets the following three conditions may also be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer, provided that the Secretary of State or immigration officer has given the family member written notice of the intention to remove him or her.
(2A) The first condition is that the family member is—
(a) P’s partner,(b) P’s child, or a child living in the same household as P in circumstances where P has care of the child,(c) in a case where P is a child, P’s parent, or(d) an adult dependent relative of P.(2B) The second condition is that—
(a) in a case where the family member has leave to enter or remain in the United Kingdom, that leave was granted on the basis of his or her family life with P;(b) in a case where the family member does not have leave to enter or remain in the United Kingdom, in the opinion of the Secretary of State or immigration officer the family member—(i) would not, on making an application for such leave, be granted leave in his or her own right, but(ii) would be granted leave on the basis of his or her family life with P, if P had leave to enter or remain.(2C) The third condition is that the family member is neither a British citizen, nor is he or she entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972.
(2D) A notice given to a family member under subsection (2) invalidates any leave to enter or remain in the United Kingdom previously given to the family member.”
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, in Committee I gave a commitment to give consideration to amendments tabled by a number of noble Lords and to the recommendations made by the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee regarding the definition of family members and the regulation-making power in Clause 1, and to return to it on Report.
Amendment 1 removes the discretion that was previously set out in the regulation-making power as to whether we notify family members of removal. We previously stated our intention that family members will always be given notice when they are to be removed but, in recognition of the arguments so eloquently made in Committee, we have now placed this firmly in the Bill.
We have accepted the recommendation of the Delegated Powers and Regulatory Reform Committee that it was “inappropriate” to delegate the power to define a family member for the purpose of administrative removal within the regulations. We have therefore defined in Clause 1 those family members who might be removed because of their dependency on the principal.
The first condition of the definition sets out the relationship of the family member to the principal. I am grateful for the point made by my noble friend Lord Avebury during our previous debate on this issue that the definition of family member should be dependent on the principal’s leave to enter or remain, and this is what we have sought to achieve within the second condition. The third condition is that the family member is neither a British citizen nor a person entitled to be in the United Kingdom by virtue of an EU treaty right. As I have previously stated, our aim is to give new clarity to families so that they will know exactly who may be liable to removal.
My noble friend Lady Hamwee noted in Committee that the draft regulations contained a provision that the giving of notice to family members acted to invalidate any leave to enter or remain previously held, and asked why this was not included in the Bill itself. We have taken on board her concern and moved this provision out of the regulations and added it to Clause 1.
In Amendment 2 we have sought to reduce the power to make regulations about the removal of family members to matters such as time periods and the service of notice. Further to the DPRRC’s 24th report, published yesterday, we will make a further amendment at Third Reading to take out the reference to “in particular” from line 27 so that it will be completely clear that the scope of the regulations cannot extend beyond these two provisions. This limits them to procedural matters that should be subject to the negative resolution procedure by virtue of Section 166 of the Immigration and Asylum Act 1999. Amendment 3 simply clarifies the definition of a child in this context as someone under the age of 18.
Other amendments in this group, tabled by the noble Lord, Lord Judd, concern the return of families and children to their country of origin. This Government have transformed the approach to returning families with children, in line with their commitment to end child detention for immigration purposes. I hope that I will be able to explain any further issues as we debate the amendments in this group. Meanwhile, I beg to move.
Lord Judd (Lab)
My Lords, I know that my noble friend is anxious to speak on the Government’s amendment so I will leave the main argument to him.
In May 2010, the Government did indeed commit to ending the immigration detention of children. There was a widespread, positive response to this change—and there have been some improvements. Fewer children are detained, and when they are it is for shorter periods. This must be recognised. The Government’s amendments would create a legislative basis for some of these improvements, for example by setting a time limit on child detention in law. However, it is very disappointing that the Government’s amendments do not prohibit or even properly limit child detention. They do not state that detention should be a last resort, as is the current policy, or that detention should be for the shortest possible time. I fear that, in practice, it may become normal for children to be detained for the maximum permissible period, where this is administratively convenient. Amendment 8 seeks to address this concern.
Bail for Immigration Detainees, to which I am sure many of us are grateful for its experience and for what it has shared with us in its helpful briefing, produced Fractured Childhoods, a report on the cases of 111 parents who were separated from 200 children by immigration detention. Children lost weight, had nightmares and suffered from insomnia during their parents’ detention. In 2010, BID dealt with a family whose members were separated for removal. The father was detained when reporting and the mother and young children were asked to make their way to the airport to leave the UK with him the following week. The family had previously complied with the Home Office and reported regularly, as required. Following the father’s arrest, the family did not have access to financial support and the mother was unable to buy food for her children, including milk for her baby. The mother did not speak English and her very distressed eldest child had to translate when an immigration officer telephoned the family. Her younger child began waking up in the night, crying hysterically. The mother was not offered any practical or financial assistance to travel across the UK to an airport, with several young children, for an early-morning flight.
New Section 78A(2)(b) under Clause 2 states that,
“a relevant parent or carer may not be removed from or required to leave the United Kingdom if, as a result, no relevant parent or carer would remain in the United Kingdom”.
This clause envisages that one parent may be split from a two-parent family and forcibly removed from the UK. It also allows that single parents may be removed without children as long as there is a relevant carer remaining with the child.
In many cases, children are likely to be seriously damaged by such separation. In Committee, the noble and learned Lord, Lord Wallace of Tankerness, stated that the separations would occur,
“in exceptional circumstances … for example, where there is a public protection concern or a risk to national security”.—[Official Report, 3/3/14; col. 1125.]
However, the clause does not state that any specific circumstances are needed to justify separation. Amendment 5 would address this concern by providing that families must be separated only where necessary for child protection.
The noble and learned Lord, Lord Wallace, also stated in Committee that families may be split where the presence of one parent,
“was not conducive to the public good”.—[Official Report, 3/3/14; col. 1133.]
This appears to refer to cases where parents have committed criminal offences. However, the fact that a parent has committed, for example, a false document offence is surely not of itself a sufficient reason to deport or remove them without their children.
Clauses 2 and 3 define family returns cases and limit the definition of a “relevant parent or carer” to somebody who is,
“living in a household in the United Kingdom with the child”.
The child may be seriously affected if a parent who is not living in their household is removed and, indeed, may need to leave the UK with them. For example, single parents who are in prison or immigration detention are not living in a household with their child. Furthermore, there will be cases where children living in households with other family members—for example, for financial reasons—would be very seriously affected if their parent were removed from the United Kingdom. Amendments 4 and 6 would remove the requirement for parents to be living in a household with their children in order to take part in the family returns process and would safeguard the welfare of children in the sort of situations I have described.
Current Home Office policy states that unaccompanied children should be detained for removal,
“on the day of the planned removal to enable the child to be properly and safely escorted to their flight and/or to their destination”.
However, Clause 5 would allow for unaccompanied children to be detained overnight for removal, potentially multiple times.
A 28-day period is proposed between families exhausting their appeal rights and enforcement. However, Clause 2(4)(a) states that the removal directions may be set in this period. This would prevent families having a meaningful reflection period. Furthermore, we have to take seriously the evidence that that timeframe is too short for families who have been in the UK for years to consider voluntary return.
Before I finish, I should like to put four specific questions to the Minister. First, why does the Bill not clearly state that child detention should be a last resort for the shortest possible time? Secondly, how will children whose parents are in detention or prison be safeguarded, given that Clause 3 defines a relevant parent or carer as,
“living in a household in the United Kingdom with the child”?
Thirdly, is it not possible that families will be separated on removal in any case where a parent has committed a criminal offence? Does this include cases involving non-violent offences, such as possession of false documents? Fourthly, a 28-day period is proposed between the family exhausting appeal rights and removal. New Section 78A(4)(c) under Clause 2 states that “preparatory action” may be taken in this period. Can the Minister clarify whether this will include detention?
At the outset of our deliberations on Report, perhaps as I put these amendments forward I may be forgiven for saying that we all like to pride ourselves on living in a civilised society. In a civilised society, children and their well-being should at all times be central to our concerns. Indeed, many of our obligations under international conventions and agreements arise from undertakings given by British Governments of both parties. Very often, Governments of both parties were pioneers in the changes and legislation proposed.
Detention can have a serious impact on children, too often irreparably. That can lead to alienation and assist social instability in disturbing ways. It lays people open to manipulation by extremists. That is why, for practical reasons in terms of security not less than anything else, our natural concern for children being at the forefront of all our considerations matters the most. My amendments are intended, transparently, to put our commitment to children in the Bill and put beyond doubt that it will always be the prevailing values and culture that matter most. Legislation of itself achieves nothing but it is there to lay out the values to which we subscribe and to underpin them by the law. That is why it is so important.
Baroness Hamwee (LD)
My Lords, I welcome the Government’s amendments here. I commented on the need for these issues to be on the face of the Bill at the previous stage, as my noble friend said. I sought clarity and certainty, and it is right that those points are in the Bill. I have a number of questions, but I will not repeat the questions that the noble Lord, Lord Judd, has asked—I have just crossed through that bit of my notes—although the questions are no less valid for that.
In Committee, the Minister gave assurances that removal would not happen where the dependency between the individual and the family member was broken, for instance when the former dependant—as he called him—was a victim of domestic violence. Could my noble friend confirm that that would be covered by the new subsection (2B)(b)? I would be grateful if he could say anything about how it will operate when the immigration officer or Secretary of State considers how a matter would have been dealt with had it been put to him or her.
New subsection (2A)(b) refers to a child,
“where P has care of the child”.
I had a look to see what the phraseology was in the draft regulations we were sent before Committee—I presume they will not go ahead now. They referred to “parental responsibility”. I warned my noble friend that I would ask these questions and realise this might be a technical one, but I would be grateful if he could explain the distinction between having care of a child and having parental responsibility. This may be in the same area as the question of the noble Lord, Lord Judd, about not being in the same household. It is certainly related to that.
I want to take advantage of these amendments to say how much I welcome the Government agreeing to pin down provisions for conditions at short-term holding facilities—a matter that my noble friend Lord Avebury raised—and the consultation, which I understand is to be undertaken. However, like other noble Lords, I feel strongly that the 24 hours that is referred to must not become the norm: it is a maximum.
On Amendment 8, in the name of the noble Lord, Lord Judd, how can the term “last resort” be demonstrated practically or legally? Is it a term found in legislation? Certainly, it was used at the Dispatch Box and is in Home Office policy. I warned my noble friend that I was going to ask about that but, since then, I have found the answer. It is used in the United Nations Convention on the Rights of the Child, which is reproduced in Welsh legislation. It is also used in Northern Ireland justice centre rules and—I hope this will appeal to my noble and learned friend who was previously Justice Minister in Scotland—in Scottish primary legislation. I say that in support of the noble Lord, Lord Judd, because I want to pre-empt the criticism that this is not the sort of language one should put in a Bill but is simply descriptive.
Lord Ramsbotham (CB)
I support the amendments in the name of the noble Lord, Lord Judd, and refer to my experience as a member of the advisory panel formed by the Government when they first considered the detention of children, particularly the detention of children who were going to be removed. We advised that it should be handled by a separate returns panel, which has since been established.
During those deliberations, we had several other concerns about a word that the noble Lord used in his address—namely, “safeguarding”. In addition to the safeguarding of children who are involved either in detention or in the removal process, there is a very large problem of unaccompanied minors applying for immigration or asylum who are distributed throughout the United Kingdom in order not to overload the social services immediately adjacent to ports or airports of entry. We felt that there was an urgent need for the handling of children, whenever they appeared in the immigration system, to be looked at particularly from the point of view of safeguarding. I am not aware that that has happened. I urge the Minister to give this his urgent consideration. Many of the things that have been said today arise out of the need to look at the treatment of children overall.
Lord Rosser (Lab)
My Lords, we will listen with interest to the Minister’s response to my noble friend Lord Judd’s amendments, which he put across with the decency and humanity we all associate with him. The government amendments make concessions on a number of issues, which we and others, and the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee, have made during the passage of this Bill through both Houses. The Minister has indicated the purpose of the government amendments, one of which seeks to make clear that all family members will be given prior notice of their liability for removal. Will the Minister confirm the position on the minimum period of prior notice that will be given in that instance?
Clause 1 provides a power for the Secretary of State or an immigration officer to authorise the removal of a person who,
“requires leave to enter or remain in the United Kingdom but does not have it”,
or their family members as well. Subsection (6) provides a power for the Secretary of State to make regulations regarding,
“the removal of family members”.
As we know, the Government’s stance up to now, which continues to be the case, is that the regulations would be made by statutory instrument but that they would be subject to the negative procedure. We remain of the view that the affirmative procedure is justified. We are disappointed that the regulations under what will become Section 10(6) of the Immigration and Asylum Act 1999 will not be subject to the affirmative procedure.
I was going to go on to refer to the comments made by the Delegated Powers and Regulatory Reform Committee in its latest report, which was published yesterday. The report reiterated the committee’s view that the power should be subject to the affirmative procedure. The Minister, probably with a view to seeking to address the concerns expressed by the Delegated Powers and Regulatory Reform Committee, has indicated that the Government will be bringing forward, if I understood him correctly, an amendment at Third Reading. He mentioned that it would address the concern that the committee had over the words “in particular”, which the committee commented on in its report. I assume that the amendment that the Government will put down at Third Reading will seek to address the concern expressed by the committee.
For our part, we want to see what that amendment is before making up our minds about whether we find it acceptable or not. Certainly, our position is that the regulations ought to be subject to the affirmative procedure for the kinds of reasons that were given by the Delegated Powers Committee, but we will see what the Government’s amendment says and whether that addresses the concerns that we too have on that particular issue.
Lord Hylton (CB)
My Lords, I welcome the Government’s amendment as far as it goes and what may be coming at Third Reading. The Government’s amendments bear witness to the good intentions of the noble Lord, Lord Taylor, which he has shown in the numerous letters and briefings that he has sent out as this Bill has moved through the House. However, in Clause 5, the Government seem to be kinder and provide greater protection for children newly arriving in this country compared with children who are already here. That is why I welcome Amendments 5 and 8 in the name of the noble Lord, Lord Judd, because they are very clear and give us the certainty that we need. I hope that your Lordships will accept them.
Lord Avebury (LD)
My Lords, I hope I will be forgiven for returning to a point that we discussed in Committee, on the basis that the noble Lord, Lord Judd, has tabled a number of amendments that deal with the position of women and children. My noble friend referred to the undertaking that the Minister gave in Committee concerning the facilities at Heathrow. That is not the subject of a particular amendment, but I am aware of delays that have occurred in implementing the improvements at the short-term holding facilities, particularly at terminal 4, which are the worst in the whole airport.
In view of that fact, will my noble friend take this opportunity to give us an update on where we have got to? None of the facilities has any showers for the children and families who are detained in them. The shortage of accommodation is acute and the facilities have been thoroughly condemned by the independent monitoring board that deals with Heathrow. It would be helpful if the Minister, when he comes to reply, would give us an update on where we have got to on the improvement of those facilities.
Lord Taylor of Holbeach
My Lords, as noble Lords will know, the Bill gives legislative effect to our current policies on family returns by putting key elements of the new process into primary legislation. Noble Lords have spoken of the Government’s record and our policies towards children, and mentioned them in favourable terms. I think it is a shared opinion across this House that we take policies towards children seriously. I hope to demonstrate that we are doing that in the passage of this Bill.
Amendments 4 and 6, in the name of the noble Lord, Lord Judd, would narrow the definition of a family return case. It is important that families where children are being looked after by someone other than the parents, such as an older sibling in some cases, a grandparent or another adult member of their extended family, are included in the family returns process so that their cases can be resolved together and so that they benefit from the intensive support provided by the new process. Under our definition of “family”, a parent must be living with their children to benefit from the family returns process. That is a reasonable definition. Other than in exceptional cases, where common sense would prevail, if a parent is living apart from the child they may be removed separately.
With regards to Amendment 5, and separating children from their parents, I assure noble Lords that we will always seek to ensure that families remain together during their return. I am sympathetic to the amendment, but there are exceptional cases. The noble Lord, Lord Judd, referred, I think, to the comments of my noble and learned friend Lord Wallace of Tankerness in previous debates on the Bill. Splitting families would never be done for tactical reasons to achieve compliance. However, in exceptional circumstances, we may need to remove an adult family member separately, even during the 28-day grace period which Clause 2 will establish. This may be, for example, where there is a public protection concern or a risk to national security.
The noble Lord, Lord Judd, also asked what the criminality threshold is over which we might separate families. He wanted a stronger definition than perhaps my words just now have offered, but there can be no fixed threshold. Each case will be considered on its merits, based on an assessment of whether an adult poses a threat of offending that cannot be satisfactorily managed without removal. That is the only fair answer that I can give the noble Lord.
Amendment 8 seeks to ensure that children are detained only as a last resort and for the shortest possible time. That is already, as noble Lords will know, government policy. Clause 5 will, in effect, ensure that detention is for the shortest possible time, while reflecting the operational reality that, in very exceptional circumstances, unaccompanied children may need to be held for short periods in transit to a port of departure or at the port awaiting departure. If we do not hold children safely while they are coming in and out of the UK unaccompanied, we increase the risk that they may fall prey to traffickers or, indeed, abscond.
Later this afternoon, we will be considering an amendment concerning children tabled by the noble Earl, Lord Listowel, to which I have added my name. I mention this because it is important to consider our approach to children in the Bill in the round. That amendment will confirm that the important statutory duty towards children in immigration decisions applies to every matter in the Bill. It will of course apply to this part of the Bill, further underlining that when families and children are being returned, we must have regard to those children’s best interests.
I will address the questions posed by my noble friend Lady Hamwee, whose help on this matter and on the Bill in general has been very positive.
Lord Judd
I am very grateful to the Minister for what he is saying and the way he is saying it. Will he re-emphasise his position on two points? First, is there an understanding within the Government that sometimes the emotional relationship between children and someone who may be in prison can be very strong indeed, and that that needs to be taken fully into account when dealing with the interests of the child? Secondly, will he confirm that he agrees with me—if I may put it that way—that what will always matter most is the ethos, the spirit and the way in which the policy is being operated by everyone in the operation, and that sometimes therefore it is terribly important to have clearly in the legislation the overriding objective, purpose and value so that these cannot be lost in the niceties and legalities of the various parts of the legislation? That is why some of us argue for a firm, clear statement in the Bill.
Lord Taylor of Holbeach
My Lords, I would like to think that by our signing up to the amendment in the name of the noble Earl, Lord Listowel, there is a clear expression of those objectives across the Bill as a whole, not just in one section. If the noble Lord doubts our commitment in this regard, he should look at the number of children now held in detention compared with in the past. That has been supported by all noble Lords. It is not something that the Government have done on their own; it has been done because this House and others who care for children and families have been prepared to act in the interests of children and families. Nobody has done more so than the noble Lord. I hope that I have reassured the noble Lord with my statements, and I hope that the Government have reassured noble Lords by their deeds in this regard.
I was asked a number of questions by my noble friend. I do not want to take too long on the issue. My noble friend asked whether removal would not happen where dependency was broken when the former dependant was a victim of domestic violence, and asked me to confirm that proposed new subsection (2B)(b) covers this. I can give that assurance. Removal as a family member will not happen where the dependency is broken, because this scenario would not be covered by proposed new subsection (2B)(b). If there is a breakdown in a relationship such that a partnership no longer exists, the former dependant falls outside the definition in proposed new subsection (2A) and would be dealt with separately. I hope that that helps. I can give a fuller answer to my noble friend in correspondence, if she wishes.
My noble friend asked whether there was anything I could say about how proposed new subsection (2B)(b) will operate, and what the procedure is. In making a decision on whether to serve notice of removal on a family member, having already established the family relationship, an immigration officer or a case worker acting on behalf of the Secretary of State would next have to check whether the family members had leave on the basis of a family life with P. In cases where a family member has no leave, either because they never had any or because previous leave has expired, the immigration officer or case worker would look at whether they would be able to be granted leave in their own right because of their immigration status as an illegal entrant or overstayer, but they might be granted leave on the basis of their family life with P if P otherwise had leave.
My noble friend also asked how,
“where P has care of the child”,
differed from “parental responsibility”? I think that lies in the fact that we were talking about draft regulations when we were discussing the early draft. That is not necessarily the final wording. The wording prepared by parliamentary draftsmen is designed to include where children are being looked after by someone other than a parent, such as an older sibling, a grandparent or another adult family member. I think that my noble friend kindly answered her own question about “last resort”, so I shall not go into that.
In answer to the noble Lord, Lord Rosser, I can confirm that family members will be given a minimum of 72 hours between receiving notice of removal and any enforced removal, as per current requirements as endorsed by the courts.
My noble friend Lord Avebury has asked me before about the facilities at Heathrow. Unfortunately, the plans for those have been delayed. He is quite right to draw attention to that. I responded to him in those terms. I remain committed to providing him and the House with information on that issue when those facilities are finalised, but at the moment, that is not the case, so I cannot advance our knowledge on that issue any further.
I think that I have covered most of the questions, although I worry that I may not have addressed the issue raised by the noble Lord, Lord Hylton. I promise to read the record and come back to him on that.
I am entirely sympathetic to the intention behind the amendments proposed by the noble Lord, Lord Judd. I hope that I have been able to show how what he seeks to achieve is expressed in the Bill, so I hope that he will be prepared not to move his amendments and, meanwhile, I beg to move mine.
Lord Taylor of Holbeach
“( ) the time period during which a family member may be removed under subsection (2);( ) the service of a notice under subsection (2).”
“( ) In this section “child” means a person who is under the age of 18.”
Lord Ramsbotham
Lord Ramsbotham
My Lords, in returning to the amendment, I shall concentrate on developments since it was debated in Committee. In his letter of 10 March to the noble Baroness, Lady Smith of Basildon, the Minister wrote that the reasonable force measure in Schedule 1 relates solely to immigration officers, and existing safeguards mean that force may be used only by officers who are fully trained and accredited to do so. He also wrote that all contractors were required to comply with current legislation, rules and guidance and that:
“Home Office monitoring teams ensure that there are robust systems in place for monitoring escort and detention providers, to ensure service delivery and accountability”.
When I was Chief Inspector of Prisons, I used to warn Home Secretaries and prison Ministers that there was a world of difference between the facts that I was giving them, based on what had been seen during inspections, and the fudge that was too often given to them by officials based on what it was alleged that they wanted to hear. Real improvement can be made only if it is based on fact, and I believe that one of the main reasons for so little consistent or significant improvement in the conduct of imprisonment is that too many Ministers have preferred fudge to fact. My successor had a more eloquent way of putting that, calling the prisons described by officials to Ministers “virtual”.
Having studied the enforced removals process for a number of years, I have to say to the Minister that there is more virtual than fact in what was drafted for him to write and that until and unless the whole enforced removal process is taken by the scruff of the neck, re-examined and revamped, it will continue to cause avoidable ministerial embarrassment and bring shame on the good name of this country.
Before I raised the amendment in Committee, I wrote to the Minister drawing his attention to the report of the National Independent Commission into Enforced Removals that I chaired in 2012, following the death of Jimmy Mubenga while under restraint from three G4S detainee custody officers in an aircraft at Heathrow. Noble Lords will no doubt have noted that, since Committee, the Crown Prosecution Service has brought charges of manslaughter against these three, following a verdict of unlawful killing by the inquest jury. In view of what we learnt during the commission, I have to admit that I found the Crown Prosecution Service’s earlier refusal to prefer charges perverse. However, now that the CPS has done its U-turn, I hope that the questions which this tragic affair asks of the current enforced removals process will at last persuade Ministers that it is in need of urgent attention.
To assist with this, I also sent the Minister a copy of a draft code of practice that I and my fellow commissioners had drawn up. I suggested that the draft code might be considered with advantage by Home Office officials outside the timetable of the Bill, and said that I and my colleagues would be only too delighted to assist with that consideration. The failings described in our report were not new and had been drawn to the attention of the Home Office a number of times by many people over the years. Furthermore, the coroner who conducted the inquest into the 16 year- old Gareth Myatt, who died in Rainsbrook secure training centre in 2004 at the hands of G4S employees, had ordered the Home Office to publicise the dangers inherent in the restraint technique that subsequently was used, again by G4S employees, on Jimmy Mubenga. I must ask the Minister: was its use ever monitored by a Home Office team?
In setting about such a revamp, the Home Office has a priceless asset in the current Independent Chief Inspector of Borders and Immigration, who keeps on turning up examples of bad practice that have gone unchecked for years. Only last Thursday, he published a damning report on his inspection of the emergency travel-document process highlighting, inter alia, that the quality assurance process set up by the Home Office was not standardised, nor did it have an audit trail. He also reported that 78% of the cases of those in contact with the Home Office were not actually being worked on and that 11% of the inspectorate’s chosen sample had been granted some form of residency or leave to remain and so should not even have been in the removal pool. He also drew attention to something that I have often raised in this House, namely the detention of too many foreign national offenders in immigration detention centres for long periods after they have completed their prison sentences—the average time being 523 avoidably expensive days. Not least to save money, documentation should be completed during their imprisonment so that they can be deported the moment that that imprisonment ends.
There are two reasons why I am raising this amendment again. First, I thank the Minister for meeting me, along with the noble Earl, Lord Attlee, and officials, to discuss the draft code of practice, and for a subsequent meeting last week that was also attended by the Immigration Minister, James Brokenshire MP. I also commend the Minister for the assiduous way in which he has set about educating himself on the issues involved, not only by visiting Harmondsworth but by accompanying a return flight, during which he saw at first hand the demands made on detainee custody officers in what is never an easy exercise, and the problems caused by failure to pass on legal judgments. I am sorry, but I simply do not believe that courts make these judgments at 3 am, and the upheaval of taking a returnee and his luggage off a flight confirm that both the bureaucratic and removal parts of the process need attention.
My second reason for moving the amendment is to ensure that what I and my commission have offered, as well as the Minister’s response to our proposal that a code of practice be drawn up and adopted, is recorded in Hansard so that both can be followed up. I know that the Home Office has appointed a commission to examine and authorise restraint techniques, though I regret that it continued the Home Office practice of calling on inappropriate Prison Service advice because restraint techniques are not used by detainee custody officers in custodial settings. It is almost a year since I and some of my fellow commissioners gave evidence to it, and I look forward to hearing when it will report. The Minister has also been kind enough to offer me the opportunity of visiting the new training arrangements that I understand are now being developed, which I look forward to doing.
I therefore ask him to consider redrafting paragraph 5 of Schedule 1, because the force used currently by immigration officers is neither clearly defined nor reasonable. I beg to move.
Baroness Hamwee
My Lords, the noble Lord has spoken very powerfully about this issue, today and previously. I hope that he will understand the spirit in which I make this point; I make it only in case we find that this is more than a probing amendment. Will he confirm that his amendment to take out this paragraph would still leave the reasonable force—or, as he might say, so-called reasonable force—provision in the immigration legislation because of the way in which the paragraph is worded, which essentially updates the references to the immigration Acts? As I say, I ask that very gently only in case we find that we are faced with a little more than his questions.
Lord Ramsbotham
I am very grateful to the noble Baroness. We have “reasonable force” at the moment, but I am concerned that if we left it like that then we would have reasonable force that was unreasonable. I am therefore asking that the work should be done, consideration should be given to this and, if necessary, that it be mentioned in the wording that the reasonableness refers to what has been authorised as being reasonable within the Home Office.
Lord Rosser
My Lords, the noble Lord, Lord Ramsbotham, has spoken with his considerable knowledge of the enforced removal process and of restraint techniques. It is fair to say that his criticism is not confined to what he thinks is going on at the moment but extends to what has gone on under previous Governments as well. I do not think that his comments are geared to a particular Government; I think that they are geared to what has been happening over a period of years.
We are aware of what the noble Lord has proposed about a code of practice, and I have to say that there seem to us to be some fairly strong arguments for seeking to have such a code, in view of some of the terrible difficulties and events that there have been and to which the noble Lord has referred. He has referred today to the redrafting of paragraph 5, as I understand it from the closing words of his speech.
We on these Benches have sympathy with the arguments that he is putting forward, which are clearly addressed to trying to resolve the significant difficulties that have arisen, and may well continue to arise, with the current process and techniques. We very much hope that we will hear a helpful response from the Minister to the quite powerful points that the noble Lord has just made.
Lord Taylor of Holbeach
My Lords, I do not think that there is going to be any marked division in this House on this issue, to the extent that I think we are agreed that whatever is done in our name should be done in a civilised and proper fashion. I am grateful to the noble Lord for bringing this issue to the House’s attention through Amendment 7, but perhaps I might start by repeating what I previously said in Committee. The provision in Schedule 1 to extend the use of force affects only those powers exercised by immigration officers. It does not make any change to the separate statutory powers of detainee custody officers and escorts, who are private contractors, to use reasonable force in the exercise of their particular functions.
As the noble Lord kindly mentioned, last week the Minister for Immigration and Security, my honourable friend James Brokenshire, and I had a very helpful and thoughtful meeting with the noble Lord where we discussed the proposals in his draft codes of practice for enforced removals and where I believe we agreed that there are a number of areas of common ground where the Home Office is making improvements. I think the noble Lord will know that my honourable friend Mr Brokenshire and I share an interest in this matter. He kindly mentioned my trip on a removals flight, which I found extremely interesting. I feel much better informed through having made that journey.
The noble Lord has proposed in the draft code of practice on use of restraint that any use of force must be justifiable, proportionate, accountable, necessary, safe and supportive and must be applied for only the minimum period necessary to achieve the lawful objective. Published enforcement instructions and guidance explain that the use of force must be proportionate, lawful and necessary in the particular circumstances, and also set out that force should be used for the shortest possible period, be the minimum needed, be used only when all other avenues of securing co-operation have been exhausted and should be de-escalated as soon as possible. Whether that use of force was reasonable must be justified by individual officers on a case-by-case basis. I can assure noble Lords that only those immigration officers who are fully trained and accredited may use force. Arrest training is currently provided by the College of Policing, and training on the use of force, including control and restraint techniques, is in line with ACPO standards.
If we were to accept this amendment, although it would maintain the status quo, there are half a dozen coercive powers which sit in the 2004 and 2007 immigration Acts, where there is no specific reference to the use of reasonable force. Although the use of force is currently implied in these arrest and entry powers, it is our intention that this should be set out explicitly in statute to ensure that there is greater transparency. I previously gave noble Lords the example of an immigration officer trying to safely arrest a person for the specific offence of assaulting him or her, under Section 23 of the UK Borders Act 2007, where it is not expressly stated in the legislation that an immigration officer can use reasonable force to restrain that person in doing so. The extension of the power for immigration officers to use reasonable force beyond that contained in the 1971 and 1999 immigration Acts will ensure that existing powers can be operated effectively and are in step with other law enforcement bodies’ powers and that current enforcement practices are not at risk of legal challenge on the grounds that the ability to use force is not explicitly set out in statute.
The noble Lord asked whether the Home Office monitored the restraint techniques used at Colnbrook removal centre in 2004, which led to the tragic death of a 16 year-old. I cannot answer that question at the Dispatch Box but will write to him and copy the letter to other noble Lords who have spoken in this debate.
With the assurance that we in the Home Office very much value the noble Lord’s input in this area, which reinforces our interest in making sure that these jobs are done in a proper fashion, I hope the noble Lord, Lord Ramsbotham, will fell able to withdraw his amendment.
Lord Ramsbotham
My Lords, I am extremely grateful to the Minister for his considered reply and, indeed, for the meetings we have had. I admit that I was seeking an opportunity to raise this issue because it has gone on for too long. The procedures being exercised in our name have gone unchecked and unsupervised in a way that has allowed bad procedures to be passed from one contracted company to another contracted company over the years, which really ought to have been checked.
I like to think that the exercise that the Minister has outlined means that this will at last be put to an end. The people who have actually been served worst by this are Ministers, who have been put into embarrassing positions which they really should not have been. I am happy to withdraw the amendment because I think that the point has been made fully, and I am grateful to the Minister for doing so. I beg leave to withdraw the amendment.
“(1A) In paragraph 16 (detention of persons liable to examination or removal) after sub-paragraph (4) insert—
“(5) A person detained under this paragraph must be released on bail in accordance with paragraph 22 no later than the sixtieth day following that on which the person was detained.””
Baroness Williams of Crosby (LD)
My Lords, in moving Amendment 9, it is an honour to follow the noble Lord, Lord Ramsbotham, who I think always gives this House the benefit of an extraordinarily frank, honest and honourable speech, to which we can all listen with great advantage to ourselves. I share with him his courteous recommendation of, and congratulations to, the noble Lord, Lord Taylor, and the noble Earl, Lord Attlee, because of their extraordinary willingness to discuss with us the issues that we raise. I will certainly echo that before I embark on speaking to my amendment.
I declare an interest as a patron of the Gatwick Detainees Welfare Group, which commits itself to looking after those detained at that airport, by getting together a group of volunteers who make it their business to try to inform, calm and, for that matter, communicate with the large number of men and women there. I put on the record my extreme gratitude to them. They do it without being paid, they come from the local area and they are a fine example of the United Kingdom at its civic best.
The noble Lord, Lord Taylor, is an exemplification of that famous proverb, “A gentle answer turns away wrath”. Indeed, when I hear the noble Lord, Lord Taylor, my wrath diminishes as I listen. However, I also have the unhappy, almost aching, feeling that there is quite a big gap between what the noble Lord says—undoubtedly with all sincerity—and what I actually encounter in the real world. While I was listening to the noble Lord, Lord Ramsbotham, there was a certain gap between the assurances given by the Minister—I am sure in all good faith—and the daily set of newspaper stories, over and over again, about the particular treatment of detainees, not least of course by well known private companies now responsible for running detention centres. It does not all quite add up.
I shall therefore restrict my remarks today to a factual account, as far as I possibly can—not eloquence, not rhetoric, but a factual account—of why I think that the present situation cannot be sustained. First, on the numbers, some 30,000 people are detained every year as a result of extant investigations, connected in some cases with faulty immigration rules, in some cases with documents and in some cases with what all of us would of course recognise as criminal offences: 30,000. If you then ask how many have been detained for a year or more, the answer is reassuring: as of the autumn of 2013, it is 92. However, what you do not know until you investigate very carefully is that there are another 950 who are also detained, not in detention centres but in prisons. For some reason I do not understand, people detained in prisons for a year or more are not listed in the Home Office’s own statistics. I am told that there is an anomaly; it reports only those detained in detention centres. The 982 figure is very different from 95, and that difference has not been explored.
Lord Lloyd of Berwick (CB)
My Lords, I support the amendment for all the reasons given by the noble Baroness, Lady Williams, in her most eloquent speech. She has left it to me to say something about the law in this area—a somewhat duller subject, I fear. The basic legal principle involved is not in doubt. Executive detention in immigration cases is lawful if—but only if—there is a realistic prospect of removal within a reasonable time. That is the principle that was established in the case called Hardial Singh. If that principle does not apply, it is otherwise unlawful.
It may be supposed that the purpose of the amendment is to make indefinite detention unlawful—but it is not, because it already is unlawful. The purpose is quite different; it is to impose a statutory limit on lawful detention, which in this case is proposed at 60 days. The application of the general principle to which I referred is, of course, dependent on the facts of every particular case that comes before a judge. There was a time when it looked as though judges, left to themselves and applying that general principle, would reach a consensus on what should be the maximum period of lawful detention in ordinary cases. If they had, a statutory limit of 60 days would not be required.
Sadly, the most recent cases have shown that that is not going to be the way ahead. I refer to just two. In the Muqtaar case, decided in October 2012, the Court of Appeal dealt with a Somali ex-offender who could not be returned to Somalia. He was nevertheless held for three years and five months before being released. His claim for damages failed. It was held that there could be what was described as a realistic prospect of removal without it being possible to specify the period within which removal would reasonably be expected to occur. I find that pretty difficult to follow, but on any view it seems to deprive the principle to which I have referred of any real effect.
Another case was Francis, decided in July 2013. The claimant in that case was convicted of using a false British passport. He was recommended for deportation and was then detained for three years and nine months. At the hearing, the Secretary of State argued that the court’s recommendation created what was called a “statutory warrant for detention”. The judge accepted that argument—otherwise, he said, he would have awarded substantial damages. I am not sure what the Secretary of State’s argument really meant but, happily, that case is going to the Court of Appeal and I hope that we will know what the position is.
I cite these cases because they have led me, with great reluctance, to the view that we cannot now look to the judges alone to arrive at a maximum period of detention in immigration cases. It is for that reason that I support a statutory maximum, as proposed in this amendment, for I am in no doubt at all that a maximum is required. No doubt some would like a maximum longer than 60 days and others a maximum shorter than 60 days. However, the existence of a statutory maximum is in my view essential to prevent detention in these immigration cases becoming in practice indefinite—or, at any rate, seeming to be indefinite—with all the suffering and misery that that involves.
The arguments in favour of a statutory maximum are set out in the report of the Bingham Centre for the Rule of Law in its safeguarding principle 17 at pages 82 to 87, and in the very excellent briefing provided by Detention Action. The arguments advanced there seem to me completely convincing and it would serve no purpose to repeat or summarise them. Therefore, I will add just two footnotes. Last week, as it happens, we debated a different form of indefinite detention—indeterminate sentences for the protection of the public, or IPPs. They were abolished by Parliament in 2012 because the consequences of the IPP system were so unjust. In the case of IPP, the detainees had all, of course, been convicted of a serious offence and were deemed to be dangerous. One may therefore ask how much more unjust is this detention in the case of would-be immigrants who have committed no offence at all?
Secondly, I have spent many hours wearying the House on the injustice of control orders, as your Lordships will remember. We were always told, in those days, that there was no alternative to control orders for these dangerous men who could not be convicted in the ordinary way. I was therefore very pleased when control orders came to an end and TPIMs were substituted, in particular because Parliament imposed a statutory limit of two years. Last week, the last of the TPIMs lapsed and, so far as I know, there was no immediate protest from the Home Secretary. That leads me to think that control orders and TPIMs were never really as necessary as people said and that, somehow or other, the Home Office has found another way around. I suggest that exactly the same will happen if we impose a statutory limit of 60 days on this form of detention. If necessary, the Home Office will always find some other way of dealing with the problem. For that reason, I shall vote for this amendment and hope that the House will do so, too.
Lord Roberts of Llandudno (LD)
My Lords, it is a privilege to follow my noble friend Lady Williams and the noble and learned Lord, Lord Lloyd, on a cause that is so right. Even those who try to defend the present system of indefinite detention must surely be uneasy of conscience that we are even contemplating such an approach.
In 1999, the United Nations Working Group on Arbitrary Detention stated:
“Lack of knowledge about the end date of detention is seen as one of the most stressful aspects of immigration detention, in particular for stateless persons and migrants who cannot be removed for legal or practical reasons”.
Indefinite detention is the worst type of punishment. Theologically, it is similar to the hell we were told about in the old days: it is not going to end. Waiting for removal or deportation, not knowing when it might happen or what a person’s fate might be, is unlimited hopelessness.
Some figures have already been mentioned. At the close of last year, in addition to the 220 people who had been in detention for six months or more, 11 had been detained for 24 to 36 months and one person had been in indefinite detention for between 36 and 48 months. Who is in detention? Many have no travel documents, while others are unreturnable because of conditions in their country of origin or because their nationality is disputed. The United Kingdom is the European Union’s biggest detainer of migrants. As already mentioned, a record 28,909 migrants were detained in 2012, most of whom are guilty of no crime and many of whom are being detained in conditions equivalent to high-security prisons.
We have heard about the Bingham Centre, the United Nations guidelines and the European Union directive, yet we are the country that refuses to do this. We have no moral right to put anyone through such prolonged punishment. I agree with the Chief Inspector of Borders and Immigration, John Vine, who said:
“Given that a criterion for maintaining detention is that there must be a realistic prospect of removal within a reasonable timescale”,
indefinite detention is, “a serious concern”. It is also totally unacceptable and completely inhumane. We are the only country in Europe, apart from the Republic of Ireland, and one of the few countries in the world not to operate a maximum timeframe for immigration detention. How can we point the finger at other countries for breaches of human rights law? Years ago, the United Kingdom was called the sick man of Europe. I hate to think that it could be termed that again. However, on the particular ground of indefinite detention, surely other countries and other people have a right to point the finger at us. The whole spirit of Magna Carta is rejected by this policy, but in this Bill we can remove the stain, especially before the celebration of Magna Carta next year. What better way to celebrate it than to end indefinite detention? That would be the real celebration.
Let us not forget the cost. Independent research by Matrix Evidence concludes, as my noble friend Lady Williams mentioned, that £75 million per year could be saved if asylum seekers who cannot be deported were released in a timely manner. Therefore, I urge the House to join me in expressing abhorrence of the terrible sentence of indefinite detention for people who have committed no crime whatever, and to resolve to put an end to it once and for all in the United Kingdom.
Lord Judd
My Lords, I do not think that support for this amendment should be limited to beyond my own Benches. I feel very strongly in favour of it and I congratulate those involved in drawing it up. I care passionately about the issues and values behind it but I want to make one other point, which I made in Committee. We are involved across the world in a struggle for values, and we like to hold to the principle that we offer values that present a better prospect for humanity. We try to contain extremism.
During my life I have come to recognise that those who advocate extremism do best in a climate of ambivalence—when there is doubt and cynicism on a significant scale. People who individually might never embrace extreme action nevertheless have a shadow of doubt: however distasteful they find the methods that the extremists use, perhaps these people are on their side. This may be a very dangerous thing to say but I sometimes wonder whether it is a bit too easy to refer to people as extremists. People who take that kind of position point to hypocrisy and inconsistencies and to examples where those whom they want to undermine do not, through their practice, begin to uphold what they advocate.
Therefore, I am totally concerned not only with the humanity and the principle behind the amendment but with its relationship to the struggle for security and stability in the world. We simply cannot afford to let areas of our administration and our justice system be a living example of contradiction of all that we have traditionally held dearest in our society. From that standpoint, as well as the one of values, I believe that it is a timely amendment and that it deserves support.
Lord Ramsbotham
My Lords, I have added my name to the amendment because I absolutely agree with everything that has been said about unlimited detention, which is hinted at. First, I salute the noble Baroness, Lady Williams of Crosby, for the powerful and eloquent way in which she moved the amendment, and I salute the power with which my noble and learned friend Lord Lloyd of Berwick and the noble Lords, Lord Roberts and Lord Judd, have supported it.
I have three things to add. Recently, I have been privileged to be a member of a Select Committee of the House on soft power, chaired most admirably by the noble Lord, Lord Howell. One of the most powerful witness statements I remember listening to was by the high commissioner for Mozambique, who described the qualities that encouraged Mozambique to apply to join the Commonwealth. In particular, it was the qualities of Britishness, headed by the rule of law. The fact that that made so much of an impression on him and is why Mozambique made such a change suggests that we go against our reputation for the rule of law at our peril when we are trying desperately to think about how we project our image in the emerging world of the 21st century.
I used to inspect detention centres and they always worried me. They were bleak places, not designed for holding people for long periods. They were originally designed for only very short periods while documentation was checked. They are neither one thing nor the other. There is nothing to occupy people, and of course that is not good over time. Nor are they good at short-term holding, which is why we wait to hear what will happen about the short-term holding facilities so urgently required. The other thing about them is their staff. The trouble with the staff in such places is that they tend to turn over extremely quickly. They cannot communicate with the people there, and they cannot provide anything other than the normal meals and so on. They can provide none of the succour. Remember that the people there have come under some form of mental turmoil. The other thing that always worried me about detention centres is the absence of the proper medical treatment—in particular, mental health treatment—that so many of the people in them require, especially under the strain and stress of being held for an uncertain period while their circumstances are investigated.
Thirdly, at Second Reading a number of noble Lords drew attention to the millstone of the 500,000 unresolved cases with which the Home Office is currently faced. They said that until and unless that backlog is removed, you will never have a system where it is possible to process things and people quickly. That requires urgent remedial action. I should like to make certain that, in future, the stimulus of having to complete cases within a period of time is applied to the system so that we are never able to build up such a backlog again. That is bad not only for the system and the people concerned but also for the staff, who in no way can help people by giving them some indication of when and how they might be released from what they are doing.
Baroness Lister of Burtersett (Lab)
My Lords, I speak very briefly in support of this amendment so that my noble friend Lord Judd is not on his own on these Benches in supporting it. The noble Lord, Lord Roberts, likened detention to hell, but it is probably more like purgatory because people are in limbo. The noble Lord, Lord Ramsbotham, referred to the mental health problems faced by people. Is it surprising that there are very serious mental health problems when people do not know how long they will be there? Just from common decency and humanity, I hope we will be able to support this amendment.
Lord Bourne of Aberystwyth (Con)
My Lords, nobody could be against the spirit in which this amendment was moved so persuasively and reasonably by my noble friend Lady Williams of Crosby, but I have one or two points to make. The Minister may wish to deal with them in summing up.
First, in relation to the European Union, there is probably a very good reason why the United Kingdom and the Republic of Ireland are the two countries which have not signed up to the return directive. That is because of our common law tradition. As the noble and learned Lord, Lord Lloyd of Berwick, very reasonably said, indefinite detention is unlawful, which is the position at the moment. People are able to apply for habeas corpus; to make, admittedly subject to the law, applications for bail; and are able to use judicial review. That is one reason at least why we appear to be out of line with other European Union countries on this point.
Baroness Hamwee
My Lords, when I raised issues about bail and mental health in detention at the previous stage, the Minister gave me assurances about the Home Office policy presumption in favour of release or temporary admission—a “presumption of liberty”, so called. He said:
“Wherever possible, alternatives to detention are used. Detention must be used sparingly and for the shortest period necessary”.—[Official Report, 3/3/14; col. 1163.]
As this is a more focused debate than in Committee, when we had, I think, six amendments and the Minister had to cover a lot of ground, perhaps I may ask him some questions of which he is aware.
Can the Minister expand on the criteria applied for detention or conversely release, and say something about Home Office guidance and case law? The issue of the periods applied by other EU member states has also been raised. Like the noble Lord, Lord Bourne of Aberystwyth, I am curious not just about the periods but the legal systems within which those periods sit and how other countries deal with the “abscond” risk. Although I suspect not, does the Home Office have any profile of those who are detained for more than the 28 days that we discussed previously and the more than 60 days we are considering now?
Finally, I cannot resist sharing with your Lordships a case study from the Movement Against Xenophobia, which is one of the many very helpful briefings that we have received. It refers to a man who had been born in the Ukraine and had moved to Poland. He was unable to get a passport and bought a false passport. He was picked up and imprisoned. One might say, “Fair enough”. After his imprisonment, he was held in detention. Post the imprisonment sentence, the detention was 18 months. Eventually, he was successful in challenging that. The irony is that he was trying to leave the UK when he was picked up.
Baroness Smith of Basildon (Lab)
My Lords, we have heard some extremely powerful speeches in today's debate, especially on the concerns about overlong detention. Some of the individual cases that we have heard about strike the humanity of all noble Lords—to take a phrase from my noble friend Lord Judd. We certainly understand the reasons for the amendment and agree that it should always be the objective to reduce the length of time that any individual is in detention. I would hope that in the vast majority of cases it is possible to deal quickly with the process for individuals or find alternatives to detention. As we have heard, that is in the interests of the individuals detained—we have heard that there are 30,000 detainees each year—and in the interests of the taxpayer.
The comments of the noble Lord, Lord Ramsbotham, and my noble friends Lord Judd and Lady Lister, led to a greater concern about the regime of detention centres and the way in which rules are enforced. We agree that immigration rules must always be enforced, but the responsibility of government is to ensure that all detainees are treated humanely, with high standards and safeguards in place. As this amendment seeks to draw attention to, the process of administrating and assessing claims or arranging deportation should be undertaken as quickly and as fairly as possible.
Long delays and long periods of detention bring with them other problems. I am sure that the Minister is aware of the research undertaken by Women for Refugee Women which illustrates concerns about access to healthcare and support for physical and mental health. Only this week, we heard the extremely sad and distressing account of a woman of 40 who died at Yarl’s Wood detention centre. I was pleased that yesterday the Minister announced an investigation and review into that sad and tragic death.
Will the Minister also confirm that there will be a full investigation into the reports of sexual abuse of vulnerable women at Yarl’s Wood by Serco employees? What action has been taken as a result of the report of the inspector who said that abused and trafficked women are being held at Yarl’s Wood? The chairman of the Home Affairs Select Committee in the other place said yesterday that Serco has confirmed to him that in the past few years seven employees had been dismissed for inappropriate behaviour. The Minister will also be aware that there are ongoing police investigations and criminal proceedings, although Nick Hardwick, in his most recent inspection report, said that—I paraphrase—good progress was being made but more needs to be done. There are real concerns that have been illustrated across the House today.
However, that is not the amendment before us today. This is specifically about the length of time an individual can be held, and we heard examples of overlong detention from the noble Baroness, Lady Williams, and the noble and learned Lord, Lord Lloyd. My concern about the amendment is that it is slightly clumsily worded and does not necessarily achieve what it sets out to do. It has an arbitrary time limit of 60 days. Within that, there is no risk assessment of the issues of whether or not someone is likely to abscond or any assessment of the reasons for the delay.
More importantly, and this gives us the most concern, foreign criminals who have completed their sentences may be detained while they await deportation. That may take a little longer than 60 days to resolve—to get all the paperwork in place, ensure that they are treated properly and make an assessment of where they can be deported to. We would then be faced with the prospect of releasing those who do not have a legal right to be in the UK and who have become convicted offenders who have received a custodial sentence. That could lead to complications in the paperwork or the complex nature of the deportation. If the amendment were passed today as it stands, we could have a difficulty with former offenders who have been held in detention prior to deportation.
Unless I have missed something, there is no process in the amendment to allow for any extension in any circumstances, whether for a genuine risk of absconding or because of deportation for previous criminal offences. There is no qualification at all in the amendment as it stands. Having said that, I think it was my noble friend Lord Judd who used a phrase—which is well worth this House returning to on a number of occasions—about the humanity and the principle of the issue. The noble Lord, Lord Ramsbotham, referred to the amendment being a “stimulus”, because the Government should be aiming to achieve far shorter detention periods.
I fully appreciate that this amendment could focus the Government’s attention on being far more efficient in dealing with cases but there is a risk here, as I have outlined, and I am not convinced that the Government would necessarily take note in that way. I would like to hear some assurances from the Minister that action will be taken to deal with any abuses of the rules and regime in any detention centre. I hope that he will not dismiss the objectives of the amendment before us today because, whatever flaws there may be in the detail, this amendment raises issues of serious concern across your Lordships’ House, as he has heard, that have to be addressed. Although we cannot support this amendment as it stands, we would hope for a very sympathetic and helpful response from the Minister.
Lord Taylor of Holbeach
My Lords, I am very grateful to the noble Baroness for that contribution. I think she recognises the burdens on the Government in dealing with this matter. I also say to her that, clearly, if there is evidence of wrong-doing at a detention centre, it will be investigated. However, I would like to write to the noble Baroness in more detail on that because I cannot address from the Dispatch Box the particular issues that she raises.
However, as to the general principle, we have had a really good debate today on detention. The truth of the matter is that no Government want to detain people more than they have to. I think the figure was quoted of £36,000 per annum for each detainee, which is enough incentive for any Government, not just on humanitarian grounds but on hard-nosed business terms. We do not want people detained, but these are difficult issues and we have vested, quite rightly in my view, the determination of these matters in the courts. It is the courts that determine the period of detention. Although the noble and learned Lord, Lord Lloyd of Berwick, has talked about the legal background to these issues, this is a case where that balance between the Executive and the court system determines outcomes.
I will now try to address the issues in the amendment, which my noble friend Lady Williams characteristically presented with the passion that has driven her through a most distinguished political career. Amendment 9 would require the release of any individual in immigration detention subject to a removal decision after 60 days’ detention, no matter how imminent their removal was. Removal might be due after 62, 64 or 70 days, but 60 days would be the effective limit. There is an absconding risk in that, which I think noble Lords will recognise. Having a finite limit would give people an incentive not to co-operate with removal. Much of what we have been discussing here has been discussed in very high-minded terms, but there are people in detention who will do everything that they can to ensure that they are not removed. If an individual refused to co-operate with arrangements for their removal—for example, in obtaining a travel document, which requires the co-operation of the detainee—they would be able to benefit from their non-compliance when making a bail application after 60 days of detention, even if the sole reason for their detention and for their not being removed was their lack of compliance. Even if a limit were to be imposed, 60 days is not the right limit, and I hope I can convince noble Lords of that. The Government’s view is that it is not appropriate to legislate to set a time limit for immigration detention.
Baroness Williams of Crosby
My Lords, I thank the Minister very much for his carefully thought-through response and all Members of the House for their careful consideration of this debate.
I have to say that, for me, this is a heartland issue of conscience, as it must be for many other Members of the House. I therefore beg to hear the opinion of the House on this matter.
Baroness Berridge
Baroness Berridge (Con)
My Lords, I declare an interest as a trustee of the think tank British Future. I apologise that this my first speech in your Lordships’ House on the Bill although I am a member of the Joint Committee on Human Rights and have been involved in considering this Bill from an early stage. I have been grateful for the comments of my noble and learned colleagues, and I accept that the amendment is not perfect. It was intended to raise this matter in Committee, but unfortunately your Lordships went rather quickly and a time limit was missed.
I thank the Minister for the lengthy and detailed correspondence that he has engaged in with the Joint Committee on Human Rights. As I hope noble Lords will realise, there are important points of principle in Amendment 10. There is no suspicion of the matters that were properly raised by the noble Baroness, Lady Smith. I think all parties share the concern about the difficulties that are faced in deporting foreign criminals, but that is not part of the principled and mature correspondence that has passed between the JCHR and the Government.
This amendment reflects the view of the Joint Committee on Human Rights and provides a more appropriate solution to a problem that it is accepted has arisen in the tribunal. The tribunal hears appeals from immigration decisions made by the Home Office. The Bill in my view breaches a constitutional principle that you cannot be both a party to a case and determine how it is heard. In colloquial terms, you cannot be both the football referee and the captain of one of the teams.
The problem that has arisen in the tribunal is that the law changed in 2002 and introduced the one-stop appeal notice, which meant, sensibly, that the tribunal should deal with all the immigration issues concerning the person before it in one hearing. This has largely prevented the proliferation of appeals from different claims made consecutively by the same person that was bogging down the immigration appeals system.
However, following the statutory instructions to hear everything together, the tribunal has developed the practice of hearing new matters that have arisen, perhaps even on the morning of the hearing, there and then. The new matter is determined by the tribunal without the Secretary of State first having made a decision on it.
I always find it hard to grasp issues in the abstract, and I thank the practitioners who make their living going daily in and out of the First-tier Tribunal for having helped me enormously in the past few days. A typical case might be where a person is appealing a Home Office decision to refuse an asylum case; for instance, because they fear persecution as a Baha’i believer from Iran. However, they come to the hearing with a new wife who is a British citizen, meaning that they now have a Human Rights Act claim in addition to the asylum claim. Sometimes the tribunal will adjourn the asylum appeal to give the Secretary of State an opportunity to make a decision on the new claim for family life, but it may say that as everyone is there, all the evidence is present in court and the appellant has a serious illness it should get on with it and decide the matter there and then.
It is this situation that the Government wish the Bill to change. Section 85(5) will meant that the tribunal must not consider the new matter—the claim to family life—unless the Secretary of State has given consent for it to do so, so a party to the proceedings has to consent to the judge hearing that new matter. The scope of the tribunal’s jurisdiction is dependent on the consent of the respondent to the appeal. If I am counsel in the case, I feel I must turn away from the judge towards my opponent and start making submissions, pleading for consent for the new matter to be raised. That would be a most unusual situation. That was conceded by the Government in a response to a question by the Joint Committee, in which they stated,
“as far as the Home Office is aware there are no other similar provisions in other statutory contexts”.
This would be new law.
Lord Avebury
My Lords, I congratulate my noble friend on moving this important amendment, based on one of the recommendations of the Joint Committee on Human Rights, of which she is a distinguished member.
Clause 15 removes the right of appeal to the tribunal from all immigration decisions except those dealing with protection and human rights. In those remaining cases, new Section 85(5) of the Nationality, Immigration and Asylum Act, inserted by Clause 15, requires the Secretary of State’s consent for a new matter to be raised before the tribunal, as it frequently is because new evidence comes to light following the original decision; my noble friend has given examples of how this can happen. We also heard from my noble friend that in the opinion of the JCHR it should be for the tribunal itself to decide whether the new matter is within its jurisdiction and, if so, to consider it on appeal, with the Secretary of State responding to it as she normally does.
It is not suggested that the tribunal has allowed the abuse of its own process in the past, or that it has treated the Secretary of State unfairly, or that the existing process is inefficient. What can happen not infrequently, however, is that the Secretary of State withdraws her decision, saying that she wishes to reconsider the case, and then returns several months later with a new decision very similar to the previous one, wasting the time and money of both the appellant and the tribunal. The Tribunal Procedure Committee is consulting on a rule for the First-tier Tribunal similar to the one that prevents the Secretary of State from putting a stop to an appeal in the Upper Tribunal by withdrawing her decision. The Immigration Law Practitioners’ Association suspects that the subsection we seek to amend is designed to thwart such a change.
My noble friend referred to the Constitution Committee, which has drawn the attention of your Lordships to what it and the JCHR both consider to be a serious question in relation to Clause 15(5): whether it undermines the common law right of access to justice. The Government’s case is that appellants may be able to get to the court by way of judicial review, and no doubt some will do so in spite of the financial obstacles created by the abolition of legal aid. However, this conditional route does not satisfy the common law, and that will no doubt be tested in the courts. The judicial review cases will be more expensive and take longer than appeals, even though it will now be the tribunal that hears them because Treasury solicitors and counsel will have to be employed; they are very expensive people. Have the Government made any estimate of the number of JR cases and the reduction in the savings that were otherwise expected arising from the JR cases that were otherwise to be heard?
In the remaining cases, now to be dealt with via administrative review, a smaller proportion of those concerned will be successful than if they had been able to appeal. That is the whole point of the exercise: not to simplify the way the cases are handled but getting to the same outcomes.
Like my noble friend, I object to a proposal which gives the Executive power to intervene in the procedures of a court of law, and particularly so when it is one of the parties to the case in question. I hope that the Government will think again.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, having spent some five years as Treasury counsel, periodically attempting to remove illegal immigrants, and then having spent some decades as a judge lamenting the absurdly over-elaborate appeals systems under which those resisting removal could string out a whole series of appeals for years on end, I can readily see—to use an inelegant colloquialism—where the Government are coming from in Clause 15(5). It is now some dozen years since the so-called one-stop appeal was sought to be introduced. Now, of course, the Government are intent, yet more fundamentally, on substituting in large part administrative reviews for appeals in all but the comparatively few cases where truly basic freedoms are at issue: refugee status, humanitarian protection and human rights.
For my part, I am not against this general reduction in appeal rights, although I may not go quite so far as to vote against the next proposed amendment, which is to remove the entirety of Clause 15. Nor am I against, as I made plain in Committee, what is now Clause 18, which to some extent may be expected to constrain the court’s readiness to allow Article 8 considerations to frustrate attempts to remove foreign criminals and others who are here in violation of immigration controls. I interpolate only that Clause 18 will of course be informed by Amendment 58, tabled by the Minister and the noble Earl, Lord Listowel, to safeguard the welfare of children.
I am, however, strongly against Clause 15(5), to which this amendment goes. This provision seems to me to represent a bridge too far. The noble Baroness, Lady Berridge, has already clearly explained the basic objections to this provision and has noted that serious reservations have been expressed about it: expressed twice now by the Joint Committee on Human Rights and yet more recently by the Select Committee on the Constitution. It would not be helpful for me to restate all these objections in detail. Suffice it to say that it seems intrinsically objectionable for the Government, one of the parties before the tribunal on the appeal, themselves to have the last word with regard to what the tribunal may or may not consider.
By all means let the Government object to a new ground of appeal or some new reason for the appellant seeking to stay if they are genuinely unable to deal with it or, indeed, if they are genuinely unable to reach and declare their own decision on it by the time it is raised. Indeed, the tribunal may well hold that the Government are entitled to an adjournment if, in truth, they are prejudiced by the point being taken late. However, it is quite another thing to say, as Clause 15(5) does, that the Government can deny the tribunal the right to deal with a new matter on the appeal before it, and thus force the appellant—assuming that he wishes to pursue the point—to start all over again, with all the delay and, as we have heard, the prohibitive expense that that would necessarily involve. That, I respectfully repeat, goes altogether too far. Your Lordships should prefer instead wording which—if not here in perfect formulation—is in some way akin to that here proposed, which, heaven knows, is a modest enough power to confer on the tribunal itself.
Baroness Lister of Burtersett
My Lords, I support the amendment moved so ably by the noble Baroness, Lady Berridge, who is a colleague on the Joint Committee on Human Rights. I shall simply quote from what the committee said as I think it sums up the case now being made:
“we remain concerned, even after considering the Minister’s explanation of the purpose of the provision, about whether it is compatible with the right of access to court, the principle of equality of arms and the rule of law for the court’s power to consider a new matter to depend on the ‘consent’ of the Secretary of State. We are struck by the fact that the Government could not identify any other similar provisions in other statutory contexts”—
as the noble Baroness has already pointed out—
“which confirms our sense that this provision crosses a line which has not previously been crossed”—
I think that is a very good point—
“in relation to an aspect of a tribunal’s jurisdiction being dependent on the consent of the Minister who is the respondent to the appeal”.
There is a basic principle here about justice being seen to be done. If this provision goes through as it stands, I do not think that justice will be seen to be done. As the noble Baroness said, perhaps the answer is for the Minister to give a commitment to come back at Third Reading with an amendment that is better expressed. However, I hope that the Government are listening and will respond positively to the amendment.
Lord Pannick (CB)
My Lords, I, too, support this amendment, which raises a short but vital issue of principle, which is whether it is consistent with the rule of law for one party to the proceedings to have the power to determine the scope of the jurisdiction of the tribunal before which it appears. So far as I am aware there is no precedent for such provision, for the very good reason that it is objectionable in principle. It should be a matter for the tribunal to apply whatever criteria Parliament thinks appropriate to determine whether the tribunal can hear an appeal that raises new grounds. I simply cannot understand why the Secretary of State does not trust the tribunal to decide on the application of the criteria which Parliament sees fit to lay down. I, too, hope that the Minister will be able to tell the House that, in the light of the concerns expressed this afternoon, the Government will think again on this important matter before Third Reading.
Lord Mackay of Clashfern (Con)
My Lords, I have the disadvantage of not seeing this matter quite in the way that my colleagues have seen it. This tribunal is an appeal tribunal from a judgment of the decision of the Secretary of State. This clause deals with a situation in which it appears, in the course of the proceedings or perhaps before they start, that there is a new ground of decision that has not as yet been dealt with by the Secretary of State. It is the Secretary of State’s jurisdiction to decide that, and the appeal tribunal’s jurisdiction is to consider appeals that arise from the decision of the Secretary of State. Therefore the essence of this particular procedure appears to be that a new decision is called for from the Secretary of State on a matter which has not been before the Secretary of State previously.
I do not see how that is in any way a breach of principle, but I know from experience long past that the way in which immigration tribunals deal with these matters has been a cause of great difficulty. During my time there were great accumulations of arrears in the immigration tribunals, and all sorts of efforts were made to try to deal with that. One of my successes, which I cherish, was to get money from the Treasury to set up new immigration appeal tribunals in the hope that that would reduce the number of cases waiting. Like all such efforts, that does not seem to have worked, as the list of appeals still seems to be pretty long.
That seems to be the essence of this issue. I agree that there are problems when this sort of thing arises in the course of an appeal on an earlier decision, but the fact that that happens is something which has to be dealt with. One of the difficulties that my noble friend Lady Berridge referred to was that it is often very difficult, in the course of these proceedings, to get in touch with the Home Office representative before the case starts; the case goes ahead without anyone getting in touch with them. That is not a new difficulty, and I suppose that this amendment is intended to deal with it to some extent. There is an underlying difference in principle between the way in which my colleagues look at this and the way I think it is possible to look at it.
Lord Woolf (CB)
My Lords, this is a matter in which I, like the noble and learned Lord, Lord Brown, have had considerable practical experience, first as a Treasury junior, who for years advised and acted for the Government on these problems that arise in immigration matters, which can be very frustrating indeed.
I have been delighted at the steps that were taken, with the encouragement of the judiciary, to transfer matters which previously went before the courts on judicial review to tribunals. We have to recognise that there are situations within the court system where tribunals are better equipped to deal with matters than the courts are, because the tribunals’ knowledge and experience is so considerable. Because of that, this process has continued. I am happy to say that the noble and learned Lord, Lord Mackay, does himself an injustice when he suggests that what he sought to do has not produced positive results. It has, and I can say to the House with confidence that if we had not built up the tribunal system in the way it has been built up, from a practical point of view judicial review would be an area of great difficulty in the courts today.
It is therefore very important that we do not do something that is contrary to principle and which reflects adversely on the tribunal system. Of course, that was not the intention of those who were responsible for drafting the amendment now under consideration. However, the transfer from the tribunal that has jurisdiction to deal with matters of this sort, for the sort of reasons that have been put forward, to one of the parties of the proceedings, is just totally and utterly contrary to principle and it should be and can be rectified in a way that is acceptable.
The noble Baroness, Lady Berridge, was very modest about her amendment; she said that it may not be perfect, and she may be right about that, but this matter certainly warrants consideration. It would be a very undesirable precedent indeed to create a situation where one of the parties to the proceedings has in effect to give its consent to the other party doing something that justice may require. In addition, the suggestion that something should go back to the beginning is just out of accord with what is now the practice in the courts. It is true that the real decision-making body is the Minister and not the courts, but for years, in my experience, the courts, when a new point has arisen, have taken the view that it is more practical and more in accord with common sense for the tribunal that is dealing with the matter to continue to deal with the new matter, if it thinks that it is right to do so, rather than to send it back to the Secretary of State, who is technically the decision-making body under the legislation.
With respect to the noble and learned Lord, Lord Mackay, to whom I bow in these matters, because he has been such a benign influence in the development of our court system, on this occasion the difference that he has with the noble and learned Lord, Lord Brown, and myself is misplaced and is not in accord with the practice adopted by the courts today, when a matter comes before them that should technically go back and discretion is exercised by the court to save everybody’s time and money by dealing with it themselves. So I urge the Minister to have another look at this matter, consult on it and come back at Third Reading.
Lord Hope of Craighead (CB)
I shall say a few words in support of the noble Baroness’s amendment. I thought that she made a very valuable point when she referred to the issue as raising an issue of constitutional principle, because it goes right back to the formation and foundations of the rule of law, where one of the two basic principles is that no man should be a judge in his own court. This was long before the referees got on to the football pitch, but it is an absolutely basic rule of law teaching, and it acquires particular force as a principle when the party that one is talking about are the Executive. One is taught that there should be a separation of powers between the judiciary and the Executive, and one can think of many countries that one would not wish to live in where the Executive are able to dictate to the courts whether or not they will entertain an argument. It is that kind of spectre that is raised by the proposal in the Bill, which I hope that the Minister will look at again, more carefully.
As for practice in the courts, as the noble and learned Lord, Lord Woolf, was indicating, it is quite common in judicial review for fresh grounds to call for a fresh decision in the course of the same process. The courts do not as a matter of practice send the whole thing back to the beginning so that it has to start off with a fresh writ, to begin all over again. They are well used to this—and, indeed, the kind of test in the amendment is one that is commonly applied by the courts every day in deciding whether or not fresh grounds should be argued.
I have two points respectively on the wording of the amendment. First, when I read the amendment for the first time it occurred to me that I would have liked to see the word “previously” at the very end of it, just to make it clear that the issue is whether there were good grounds for not raising the matter before the Secretary of State on the previous occasion when he was looking at the issue. Secondly, the test that is put in the amendment is relatively mild—“good reasons”. There would perhaps be room for looking at that test again and deciding whether it should be put slightly higher, if the Secretary of State is concerned that the court is not applying the kind of test that he would like to be applied—“very good grounds” or “extremely”, or something of that kind. One cannot draft on the Floor of the House.
Viscount Eccles (Con)
My Lords, it is very risky for a non-lawyer to intervene in such a debate, but I would be most grateful if my noble friend on the Front Bench and, indeed, my noble friend proposing the amendment, would relate new subsection (5), which Clause 15(5) will substitute for Section 85(5) of the 2002 Act, to new subsection (6) because, if I have read it right, new subsection (6) attempts to define “new matter” in a rather narrow way and not in one that means that just anything can be considered by the Secretary of State to be a new matter and therefore referable back to the beginning. I feel that I need enlightening on the relationship between those two proposed new subsections.
Lord Hope of Craighead
The reason why I suggested the word “previously” is because that is in new subsection (6) and would link in new subsection (5) with new subsection (6) to show that what one is talking about is exactly the kind of matter being referred to in the definition in new subsection (6).
Baroness Smith of Basildon
My Lords, I rise briefly to comment that the noble Baroness, Lady Berridge, has done a service to your Lordships’ House because she has given the Minister the opportunity to think again and to take advice from some of the best legal minds that the country has. I hope that he will take that opportunity.
I am not a lawyer, but one thing that strikes me is the issue of fairness. The noble Baroness, Lady Berridge, raised the point when she used a football analogy—not something that I would normally do in any event whatever. My noble friend Lord Bach laughs, because he knows my loathing of the obsession with football. But the idea that the scope of the tribunal’s jurisdiction should depend on the consent of one of the parties to the appeal is something that offends a great many noble Lords and their sense of justice and fairness.
My only question to the noble Baroness, which I asked her when I saw that she had raised this matter, was whether the Government had ever raised any concerns and whether this proposal would make it more difficult for them, given their problems in deporting foreign criminals. She was able to assure me that it has never been raised by the Government as causing any concern whatever. I think that the Minister should take the opportunity that has been presented to look at this again. The noble Baroness says that the amendment is not perfect, but it does not need to be perfect to take it away and give some further consideration to what has given a lot of concern to noble Lords across the House.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I am grateful to my noble friend Lady Berridge for introducing this amendment, which, as the noble Baroness, Lady Smith, said, has given rise to many learned contributions in the course of debate. As has been indicated, the amendment would place the tribunal in a position of the primary decision-maker; it would allow matters to be considered and decided by the tribunal without the Secretary of State having considered and decided them.
The tribunal exists to consider appeals against the refusal of an application by the Secretary of State. That is why the Bill provides that the tribunal may not consider matters that have not first been considered by the Secretary of State unless the Secretary of State consents to it doing so. Picking up the point made by the noble and learned Lord, Lord Woolf, nothing in the proposal in any way reflects on the work that has been done by the tribunal. Indeed, the point he made from experience about it being more appropriate than the cases that went to court is in no way a reflection on the tribunal.
The Joint Committee on Human Rights stated in its report that the provision relating to the Secretary of State’s consent may not be compatible with the principles of equality of arms, right of access to a court and the separation of powers because it allows one of the parties to an appeal, the Secretary of State, to determine the scope of the tribunal’s jurisdiction. Of course, ultimately Parliament sets the jurisdiction of the parameters within which the tribunal will operate.
However, the principal reason why the Government have proposed this measure is that we do not believe it is right for the tribunal to be the primary decision-maker. I certainly will reflect on the points made on that principle. I noted that the noble and learned Lord, Lord Woolf, said that it was more practical for the tribunal to deal with this matter although, technically, the decision-making body was the Secretary of State. I think that my noble and learned friend Lord Mackay of Clashfern made the point that the primary decision-maker in these matters is the Secretary of State. Therefore, I do not think it is such a clear question of principle as perhaps has been suggested. The noble and learned Lord, Lord Woolf, maintained that there were compelling practical reasons. However, the primary decision-maker is, indeed, the Secretary of State. The role of the Secretary of State—
Lord Woolf
Perhaps the noble and learned Lord will ponder on the following. Although, of course, the Secretary of State must be the primary decision-maker, the Secretary of State may not be content for the tribunal to deal with a matter and may think it is much better that it should not do so, even though it would give the greatest attention to the fact that there is an objection to the matter being dealt with by it on the very ground the Minister sets out. The matter he sets out is just the sort of matter which you can rely on the tribunal to take into account at its discretion when deciding whether to send it back to the starting point. I refer to delay in this context. It is also just the sort of matter which the Court of Appeal, for example, will take into account in considering whether it will send a matter back to the Secretary of State or deal with it itself because it is in a better position to deal with it than anybody else.
Lord Wallace of Tankerness
My Lords, I hear the point which the noble and learned Lord makes. It is also important to recognise that we have to look at where this matter might best be dealt with. The Secretary of State can still consent to the new matter being determined within the context of the existing appeal. That is obviously an issue that the Secretary of State would have to consider in deciding whether or not to give that consent.
Lord Woolf
I again apologise for interrupting, but will the noble and learned Lord bear in mind that the Secretary of State in this context means the person who is conducting the case on behalf of the Secretary of State in the tribunal on the day of the hearing? If he has not already received instructions on how to deal with it, all he can do is ask for an adjournment so that the matter can be referred back to those who have more authority than he has to decide what course to take. That will mean that, inevitably, the ability of the court—or, in this case, the tribunal—to deal with it in a sensible and summary way is in fact not going to happen in practice.
Lord Wallace of Tankerness
My Lords, one of the examples given by my noble friend Lady Berridge was that a matter may suddenly be raised. It is important to make the point that we are not talking about the appellant relying on new evidence to support a ground already before the tribunal. I know that the noble and learned Lord accepts and understands that. For example, if there was an appeal about refusal of the family life settlement, new evidence on family life would obviously be something which could be led. Nor will the clause prevent access to the court, because the individual would still have an appeal against the refusal. If the new matter on which an application was made was refused, then obviously that matter could be appealed to the tribunal.
I note what the noble and learned Lord says, but my noble friend Lady Berridge talked about a new ground of appeal which the Home Office may have found out about only the night before. When people talk about equality of arms, I am not necessarily persuaded that someone going into the tribunal will find that there is a completely new ground of appeal which they only learnt about within the previous 12 hours. That is an inequality of arms. My noble friend and my noble and learned friend Lord Mackay of Clashfern commented on whether or not the Home Office had been answering the telephone. These are practical issues that ought to be addressed, but I do not think they go to the principle we are discussing.
I am always wary—as was the noble Baroness, Lady Smith—of using football analogies, but they were mentioned by my noble friend in moving her amendment. If an FA Cup match went to penalties, it would not be for one party to say, “By the way, we will just go to the referee and say, ‘If we are having a penalty shoot-out, it will do for the other cup tie that we are to play next week. We will just do the two in one’”. If it is a completely new case, it is not reasonable that that should happen. I stress that this is not a situation where a person is going to be denied the opportunity to bring a separate case on a new matter. They would still be able to bring it and, if they were dissatisfied with the decision made by the Secretary of State, the appeal route would still be open to them.
The proposed measure could create an incentive for appellants to raise new matters at a late stage because they could try to persuade the tribunal that the matter should be heard despite the Secretary of State not having considered and decided the issue. The Secretary of State will have to strike that balance, depending on whether or not she wishes to give her consent—if, indeed, the case was adjourned. Documents may suddenly have been produced the veracity of which the Secretary of State will have had no opportunity to examine. If it is a new ground of appeal, the Government argue that the primary decision-maker is the Secretary of State and the proper role of the tribunal is to hear appeals against a decision of the Secretary of State, if the applicant is dissatisfied with the original outcome. As the noble and learned Lord, Lord Hope, said, I do not see that that is a case of being a judge in one’s own cause because the cause that is properly before the tribunal is one in which both parties will argue their case.
When a new cause is introduced, the Secretary of State makes a decision on it through his executive function. What in fact is being suggested is that that decision should not be made by those from the executive branch but should be a judicial decision. I think that there is a blurring there. If we are arguing as a matter of fundamental principle that a decision is one for the Executive, the question is whether, indeed, the primary decision should be made by the judiciary. I cannot ignore the force of the comments that have been made. The noble and learned Lord, Lord Hope, helpfully suggested where this might be amended. I should make it very clear that I cannot give any guarantee that the Government will come back at Third Reading with an amendment. However, it is only proper that we reflect on the very important issues that have been raised.
Lord Pannick
I wish to make a suggestion. The noble and learned Lord rightly emphasises that the Secretary of State is the primary decision-maker. However, a way forward might be to give the tribunal some power to overturn a decision of the Secretary of State on a matter of this sort if the Secretary of State is acting unreasonably. That would recognise the primary role of the Secretary of State. What is objectionable is that the Secretary of State must give his or her consent in this context.
Lord Wallace of Tankerness
My Lords, I appreciate the noble Lord’s comments and help, which I know are made with a view to trying to resolve this matter. I assume the noble Lord means that his suggestion would be preferable to judicial review. The withholding of consent by the Secretary of State would, of course, be challengeable by judicial review but one is well aware of the attendant costs of that and a new application and appeal to the tribunal may well be cheaper and, possibly, quicker.
I must make it very clear that I am not giving any undertaking to bring this back at Third Reading, but I do undertake that it is fair and proper to reflect on the comments that have been made. On that basis, I invite my noble friend to withdraw the amendment.
Baroness Berridge
My Lords, I thank the mainly noble and learned Lords who have spoken, predominantly in support of the amendment. I am obviously disappointed by the Minister’s response to the concerns which have been properly outlined. He cites that it is a clear question of principle that the principal decision-maker is the Secretary of State, but the overriding interest in this matter is the principle of justice. As in the circumstances that I outlined, a matter may remain before the tribunal solely because a barrister makes every effort to avoid being at the hearing and cannot get hold of the Home Office to get a fresh decision made, and yet the tribunal is not allowed to take that conduct into account at all in determining whether the court can take the new matter—which may be impinged on by illness—into account. In these circumstances, one can only imagine the sense of injustice that will be felt, not only by the appellant but by their legal representatives who have gone to every effort to avoid that situation occurring.
I have listened carefully to my noble friend who says that there is no guarantee about bringing this back at Third Reading but that the Government will reflect on this matter. My knowledge of the Companion is not detailed enough for me to understand whether I am entitled to bring it back at Third Reading to determine the matter because I have never heard that phrase before in my three years in your Lordships’ House.
Earl Attlee (Con)
My Lords, it would entitle the noble Baroness to bring it back at Third Reading.
Baroness Berridge
I thank my noble friend for his clarification. I also ask the Minister to consider the resources that will have to be put behind presenting officers and barristers, who are often very junior. If consent has to be given on the day of the hearing you are going to have to get hold of the Home Office to get instructions on whether to give consent there and then, otherwise we can have yet another thing clogging up the system. I have tried to be generous to the junior barristers: there is nothing worse than getting the papers at 5 pm the night before and trying to do the best you can for your client.
Finally, I am incredibly disappointed because, as a Conservative, I believe in a small state. I never thought that I would have to defend the state trying to dip its toe into interfering with judicial proceedings. I thank noble Lords for their support but, with the clarification that we can, perhaps, bring this matter back at Third Reading, it is with great regret that I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, we now return to what many consider one of the most controversial clauses in the Bill. Noble Lords will recall that we had a number of debates on this clause in Committee. We raised our concerns about the principle of removing the right to appeal against an application to refuse a visa. We saw that against the backdrop of what appears to be poor-quality decision-making, when so many appeals succeed.
In the debate last week on the Question for Short Debate introduced by the noble Lord, Lord Steel, the noble Earl, Lord Attlee, referred to the decision-making process as a matter of judgment and said that when a tribunal overturns an original decision by a caseworker that does not mean the original decision is wrong, merely that a different judgment has been made. He was very clear that these are balanced judgments. The noble Lord, Lord Steel, made a helpful point that, on the issue of judgment, the caseworker should be able to go back to the sponsors of an application to double-check its veracity. The noble Earl, Lord Attlee, agreed to write to us on that and I look forward to receiving his reply. The point made by the noble Lord, Lord Steel, contributes to our discussions today. Despite the Minister’s best efforts, both in your Lordships’ House and in writing, and the generosity with their time of the noble Lord, Lord Taylor, and the noble Earl, Lord Attlee, in meeting to discuss this and other issues, he has failed to convince us of the need to remove the right of appeal and replace it with an internal, administrative review. We remain of the view that the efforts and resources would be better employed ensuring accurate, timely initial decisions.
We remain deeply concerned about the clause and have therefore retabled our amendment to delete it from the Bill. We have also tabled Amendment 13 to ensure that appeal rights cannot be abolished until the quality of Home Office decision-making for managed migration is deemed, by the Independent Chief Inspector of Borders and Immigration and the Secretary of State, to be efficient, effective and fair. This reinforces my previous point about our priority being the quality and accuracy of judgment on initial decisions.
As your Lordships will know, only three types of decision will remain appealable under this clause: a decision to refuse a claim of asylum or humanitarian protection; a decision to refuse a human rights claim; or a decision to revoke asylum or humanitarian protection. A decision by the Home Office to refuse an application which does not involve one of these claims but is made, for example, on erroneous grounds or without reference to highly relevant information, could not be challenged before a tribunal. That even includes a simple mistake being made or not including a document that should have been included. As noble Lords who have been through this process with anybody or advised them on it will know, it is sometimes very difficult to know all the documents that should be included. Instead, the Government plan to set up an administrative review system which will provide a proportionate and less costly mechanism for resolving caseworking errors. We obviously support a process that gives timely, accurate decisions with a facility to swiftly address any errors. However, taken in context, this clause does not do that.
In Committee, we heard about the impact that the clause might have on students, undermining our attractiveness to the best students in the world. We heard about the impact that it would have on children, and noble Lords will also be aware of its impact on businesses. Organisations representing students’ best interests and student bodies fully support Amendment 11 as the preferred way of dealing with this. This may offer reassurance to the noble Lords who have spoken specifically about students.
The system that provides for appeals is even more essential, given that we know how flawed the current system is: the balance of judgment referred to by the noble Earl, Lord Attlee. It is well documented that the department is already struggling to deliver a high-quality service and there are huge casework backlogs. In Committee, I provided some shocking statistics to show how serious the situation is. I do not intend to repeat those today but it is clear from the evidence that there are huge pressures on the service and on those whose job it is to clear the backlog and assess new applications. Yet the Government now propose a new administrative review system with no additional staff. We should not be surprised, or allocate blame to individuals working under such pressure, that so many decisions are overturned on appeal. The latest statistics that I have seen show that 32% of deportation decisions, 49% of managed migration appeals—that is, work and student appeals—and 49% of entry clearance applications were successfully appealed last year.
Although the department had no statistics on why those appeals were granted, since then it has, rightly, undertaken an exercise looking at a sample of 2% of cases, which showed that 60% of appeals allowed are due to casework errors. Extrapolating that figure indicates that almost a third of all appeals allowed are due to casework errors. In Committee, the noble and learned Lord, Lord Wallace, said that these figures had to be looked at,
“from the perspective of the end-to-end immigration system”,
and that the majority of applications are successful. What he meant was that the majority of applications are not appealed against.
However, what matters here is the principle. When so many decisions are found to be flawed and when even the Minister acknowledges, as he puts it,
“historic problems with decision quality”—[Official Report, 3/3/14; col. 1195.]—
should we really be trying to remove the current system of appeals and replace it with administrative reviews? I have said before, and I think it still holds, that it cannot be right that the Home Office’s response to its own inefficiency is simply to stop people challenging that inefficiency. I come back to my earlier point, which makes all the more sense to us: the Government should be focusing on improving the efficiency of those initial decisions and making sure that there is little need for appeals in the first place.
As evidence of the appropriateness of the new system of administrative appeals, the Government rely on its use overseas by people who are refused entry clearance. However, as the Government themselves have admitted, not only are these very different decisions with fewer grounds—and so, it is hoped, with fewer mistakes made—but just 21% of original decisions are overturned in that process against the 50% of appeals granted under the current system. Therefore, given the difference in the types of decisions and the fact that less than half the number of overseas administrative reviews are successful compared with appeals, I am not convinced that the Government’s reliance on that as evidence for making the change is sound.
The Government have said time and again that the person reviewing the decision will not be the person making the original decision, but the reviewers will still be a cohort of immigration staff drawn from the initial decision-makers, so it is not an independent process.
In his response to me in Committee, the noble and learned Lord, Lord Wallace, insisted that the administrative review process will be quicker and less costly. He said:
“Immigration judges at the tribunal will no longer need to consider caseworking errors. Applicants will have those errors considered faster and more cheaply, and those types of case will be removed from the tribunal system, which will reduce overall expense”.—[Official Report, 3/3/14;. col. 1191.]
That is all very well: who would not want a system that is simple, fast and cheaper? However, do we not also want one that is accurate? If mistakes are being made one way, with people being denied visas when they should have received them, can we be certain that no mistakes are being made in the other direction—that is, people being granted visas when they should not be? People are certainly not going to appeal against that. Therefore, we need a system that gets it right.
I think that our comments and concerns have been taken on board to some extent, particularly with regard to the lack of oversight. The noble and learned Lord, Lord Wallace, quoted the statement of intent in relation to the Bill, saying:
“‘Within a year of the … review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan’”—[Official Report, 3/3/14; col. 1196.]—
and that the chief inspector could have the power to undertake an inspection off his own bat. A government amendment was tabled to that effect, and another not dissimilar amendment will be coming soon from the noble Baroness, Lady Hamwee. However, that remains after the event. Why not have a review first to see where improvements can be made? Alternatively, we can monitor those improvements before forging ahead and adding another layer of chaos to an already overstretched service.
The Government have also relied on the availability of judicial review as a recourse, despite the change that they are making to judicial review and despite the fact that the impact assessment could not make a proper assessment of the cost. However, this process has the potential to be far more expensive, despite the noble and learned Lord’s comments about it being cheaper and quicker. The Government’s own assessment shows that an extra 5,600 reviews and up to 1,000 judicial reviews could be granted. That would cost more than appeals, and costs can be sought from the other party and damages may be claimed.
The noble and learned Lord, Lord Wallace, said on a number of occasions in our previous debate that he understood the concerns in relation to the clause and he understood the reservations that were expressed about decision-making in immigration cases. Despite that, the Government are still ploughing ahead with a radical reform. We have not seen the evidence for this clause and we do not believe that the evidence is there. It is ill thought-out and unfair, and I hope that, even at this late stage, the Government will be prepared to consider the points that have been made throughout the passage of the Bill. I hope that the Minister can give greater reassurances on this issue than he has been able to provide so far. I beg to move.
Lord Pannick
My Lords, I have added my name to this amendment to remove Clause 15 from the Bill. A system of internal review is not a substitute for the right of appeal. The right to appeal confers a right to a decision by an independent adjudicator, but it is more than that. There is a public hearing with witnesses and with submissions on both sides. There is a public reasoned decision as a result of the process. I fear that, without independent appeals, the already poor standards of administration in relation to immigration decisions—the noble Baroness, Lady Smith of Basildon, has referred to the lamentable figures—will get even worse.
I do not think that another layer of internal decision-making through an administrative review can possibly be as effective a mechanism for improving standards and ensuring correct decisions as an independent and public appeal process. I welcome, of course, the Government’s decision to invite the Independent Chief Inspector of Borders and Immigration to review the new administrative review process. This will introduce some independent scrutiny of the process, but the chief inspector is not going to assess the substantive merits of individual cases in the way that the tribunal does.
The Government have emphasised that an individual dissatisfied with the internal review process—and there will be many of them—will have legal redress by way of judicial review. But of course a judicial review, unlike an appeal, is not an assessment of the merits of the case; it is a limited assessment of fair process and of legal errors. In any event, I simply cannot understand any more than the noble Baroness, Lady Smith, why the Government are seeking to push these cases—and there will be many of them—into judicial review when, at the same time, the Lord Chancellor is bringing forward legislative proposals to reduce the number of judicial reviews. Indeed, as the noble and learned Lord, Lord Woolf, explained in speaking to the previous amendment, the whole thrust of reform in recent years has, rightly, been to remove immigration cases from judicial review and to have them decided before tribunals.
The Minister, the noble Lord, Lord Taylor—like other noble Lords, I am very grateful to him for having meetings and correspondence on these issues—has previously emphasised that administrative review is cheap and quick. He is right, but there is nothing to stop the Home Office introducing a quick, cheap and effective process of administrative review. If it were to do so, no doubt it would find that a very large proportion of appeals would become unnecessary. My objection to the clause is the removal of the right to an independent appeal in cases which are not adequately addressed by a process of administrative review. That is why I oppose Clause 15.
The Earl of Clancarty (CB)
My Lords, I apologise to the House for not having spoken before on this Bill. I will be brief. I have put my name to this amendment and want to talk about fairness.
As the noble Baroness, Lady Smith, mentioned, we had an excellent debate on immigration last week in the name of the noble Lord, Lord Steel. Much of that debate was full of individual cases. Someone afterwards said that it was a sad debate because of the frustration felt on all sides of the House for those they knew or knew of who suffered difficulties or injustices as a result of the immigration system or regulations as they currently stand, or as likely from mistakes being made. The large proportion of appeals that succeed is testament to that.
Those who work in the area of our domestic legal process, which has developed over centuries, understand well that the system is not perfect, that it can be improved, that mistakes are made and, more than that, that significant safeguards need to be built in that are, crucially, an open aspect of the system. As a society, we are by and large grown-up and realistic enough to accept that. Surely those principles that currently exist in relation to immigration appeals and have now stood for more than four decades should in the same way be, at the very least, preserved and protected. The Government may baulk at the openness of the tribunal system when so many mistakes are clearly revealed to the public, but if the process is taken back in-house—as it were—as an administrative review, we will lose that openness, independence and accountability that we currently have, as my noble friend Lord Pannick said.
The Government wish to replace the current system with one that will be more complicated and inefficient. In addition to limiting the process, it will fragment it and be desperately unfair for the person concerned because that person would quite rightly—this should be a democratic right—want to hear the entirety of their case presented at a tribunal. I can understand the desire of the Government here. They are under considerable pressure to get immigration right, get a grip on it and put an authoritative stamp on it. However, if that is a spurious authority, which, through lack of independence, institutionalises mistakes—that is what will happen—it will be worthless. Whatever good intentions the Government may have, Clause 15 remains on Report a threat to our fundamental notions of fairness in this country. There is a world of difference between aiming for a perfect system, which is laudable, and attempting to construct in the here and now a system that assumes perfection. If we so significantly limit the right of appeal to tribunals, we will surely set off down the latter, dangerous and misguided, road.
Baroness Hamwee
My Lords, I was not sure whether to speak yet; I was looking for a Bishop. Amendment 14 in this group is in my name and that of my noble friend Lord Avebury. I have been torn over this issue. Of course, the lawyer in me wants to see access to the courts or tribunals but the pragmatist in me says, “Get it right first time”, especially when it is something where arguably the person involved does not start with having rights. I distinguish between human rights interests, family interests and, at the other end of the spectrum, perhaps permission to come and work in a different country. At issue here is a very wide range of types of decision. Also, of course, the pragmatist says, “Find ways to improve the process to get it right”.
I have to assume that the Secretary of State is satisfied on the basis of the current out-of-country process that what is proposed will be “efficient”, “effective” and “fair”—in the words of one of the amendments. I hope that effectiveness always means fairness. I do not know that one can become satisfied that the process is efficient, effective and fair on the issue raised by the possibility of shadow working and the two systems working in parallel. I know that there are different views about that. Frankly, I doubt that it is practicable. At the previous stage, I raised the issue of reviews of procedures and—particularly important to me —independent oversight and reports to Parliament. I welcome government Amendment 12. Could my noble friend confirm, because it does not quite say this, that what is intended is a report on the first year? It says that, “Before the end of” a year the Secretary of State will commission a review.
My Amendment 14 would introduce a two-stage process, the second of which would be the chief inspector reviewing the first year of operation, and the first of which would be an opportunity for Parliament to consider the procedures after the Government have consulted on them. I am grateful to my noble friend for a letter that I received following Committee and which was copied to other noble Lords. I hope that this will be a useful opportunity for him to explain from the Dispatch Box the Government’s proposals for consultation on the proposed rules—a targeted consultation, as I understand it. There might be, if you like, a pre-consultation of noble Lords as to who might be involved in that process. I am sure we would all have ideas as to who could usefully contribute.
Since Committee, I have seen the information given to those who seek an administrative review out of country under the current procedure. I had been concerned about how representations could be made to the reviewer and what representations could be made. I can infer that from the current information but I am sure that there is scope for spelling it out more clearly. That is a matter for the practitioners, really. I was also relieved to see information on something that had popped into my head and bothered me a lot: whether there would be a charge for an administrative review. I see that that is not the case. That reminded me that this is another reason for the Home Office getting it right first time, as it will not be able to get any income from that administrative review. As it were, it funds it—rightly—from its internal resources.
Lord Wallace of Tankerness
My Lords, as the noble Baroness, Lady Smith, indicated, we debated this matter at some length in Committee. We will necessarily go over some of that ground again but I appreciate the opportunity to do so and to inform the House why we believe that it is helpful and a positive development that we should move to this system of administrative review.
Obviously, the noble Baroness’s Amendment 11 would remove Clause 15 from the Bill. In doing so, it would retain the current appeals system, which we believe is too complex and does not provide the most appropriate and effective remedy in each case against refusal decisions. I understand the reservations that have been expressed here—we rehearsed a number of the issues in Committee—about decision quality in immigration cases. First, it is again important that those concerns are seen in context. As I said—and as was once said back to me—the great majority of decisions are not refused in error. The majority of applications are successful. The noble Baroness quoted me on that. Of decisions taken in the United Kingdom, only 10% were refused in 2012. Therefore, when the majority are successful, it is not about an absence of appeals. The noble Baroness asked if some of these decisions had been wrong, too. I suspect we will never know because people tend not to appeal against decisions when they have been successful. Some 51% of that 10% that were refused in 2012 succeeded on appeal. Therefore, 5% of the total decisions taken succeeded on appeal. Of that 5% of decisions, 60% succeeded because an error was made. By my calculation, we are down to 3% of all decisions in managed immigration cases being attributable to an error.
We believe that retaining the current system, as would be the consequence of the noble Baroness’s amendment, would not improve decision quality. It would mean that people continued to wait longer and incur more expense for errors to be corrected than under the system established by Clause 15. Under Clause 15, where a claim based on a fundamental right is refused—I think we heard about some of those under the previous amendment—it can be appealed and the fundamental rights are set out in the Bill. It is right that a full-merits appeal should be available for these cases. Where the claim is not based on fundamental rights, we can indeed show that 60% of cases that succeed on appeal do so because of a working error. It is also worth reflecting that the kinds of cases we tend to deal with are those that are a matter not of judgment but of the application of objective rules. If the rules are met, leave is granted. If they are not met, leave is refused. That type of decision is well amenable to administrative review. As the noble Baroness said, the process will be quicker and cheaper than an appeal.
Lord Avebury
The figures that the noble and learned Lord has just given are interesting. He said that 21% of administrative reviews uphold the appeal, whereas earlier he said that 51% of those reviews succeeded on appeal in 2012. Does that not illustrate the anxiety everyone feels that when an appeal system is replaced with an administrative review, the rate of success goes down not for any objective reason but just because the administrative review is less favourable to the applicant?
Lord Wallace of Tankerness
My Lords, I am almost tempted to say that you are damned if you do and damned if you do not. That 51% included those cases where there was administrative error. If one wishes to drive to improve the quality of decision-making, inevitably the number of successful appeals will go down.
In Committee, concern was expressed about the opportunities for scrutiny of the Immigration Rules. I am pleased to confirm that we are committing to publishing draft rules no later than the Summer Recess. I hope that that reassures my noble friend Lady Hamwee about what I have said in my letter to her. I am happy to repeat that those rules will be the subject of a targeted consultation with key interested parties, including the Immigration Law Practitioners’ Association and Universities UK. We certainly are open to discussions with noble Lords and organisations to which noble Lords consider this consultation should be addressed. The aim of the consultation will be to ensure that all relevant views are taken into consideration before the rules are finalised. The consultation will offer an opportunity for the rules to be scrutinised and potentially amended before they are laid before Parliament in accordance with Section 3(2) of the Immigration Act 1971. Clause 15 creates a better process for all concerned—applicants, decision-makers and the court system. It will help to address the legitimate concerns raised about decision quality.
Amendment 13, which stands in the name of the noble Baroness, Lady Smith, would impose three conditions that would need to be met before the appeals provisions in Clause 15 came into force. The proposed sunrise clause would require: that the Chief Inspector of Borders and Immigration must first report on decision-making for entry clearance and managed migration; that the Secretary of State must be satisfied that decision-making for entry clearance and managed migration is efficient, effective and fair; and that the order to commence Clause 15 must be laid before and approved by both Houses. My noble friend Lady Hamwee raised the possibility that, to be able to do that, we might need to have a shadow operation, which probably would be an administrative nightmare.
I submit that we already have reports from the chief inspector on decision-making in entry clearance and managed migration. In 2013, he reported on investor and entrepreneur applications, concluding that 91% of decisions on investor applications were reasonable. That report recommended that the overseas approach of sharing administrative review outcomes to improve decision quality should be adopted in-country. That recommendation of an approach recommended by the chief inspector has informed the changes which this Bill seeks to implement through Clause 15.
The inspection of entry clearance decision-making in Warsaw in December 2013 of out-of-country administrative reviews concluded that the service was efficient and consistently meeting service standards for completing decisions. In 88% of cases reviewed, the report concluded that the right decision had been reached. We accept that this report made five recommendations for improvement. We have accepted all of these either in whole or in part.
I assure your Lordships that the Home Office takes the chief inspector’s inspections and reports seriously. A dedicated team manages the implementation of his recommendations. In his spot-checking report of August 2013, the chief inspector considered the progress that had been made against recommendations from three earlier inspections and was pleased to see evidence that the Home Office was acting upon his recommendations. We already have evidence from the chief inspector who has looked at the administrative review procedures that are applied at present for out-of-country cases of managed migration. He appears to confirm that, in the cases that were reviewed, the right decisions had been reached. As I have said, in Warsaw that was in 88% of cases.
However, we recognise the concerns that prompted Amendment 13. Therefore, we have brought forward a government amendment which takes a different but effective approach to address those concerns. Amendment 12 in the name of my noble friend Lord Taylor imposes a specific obligation on the Secretary of State to secure an independent review of administrative review. It looks forward and will review new processes. The new clause requires the Secretary of State to commission the independent chief inspector within a year of Clause 15 being commenced to prepare a report on administrative review.
My noble friend Lady Hamwee asked for confirmation that it was intended that the report would be on the first year although commissioned ahead of the first year. As I have said, the report will be commissioned within 12 months of administrative review being implemented. The Secretary of State will ask the chief inspector to complete the report within the first 12 months of the operation of administrative review. In timing the commissioning of the report, we want to strike a balance between a desire for an early report on how administrative review is working and the need to let the process operate for a period before a meaningful report can be prepared. It is therefore intended that the Secretary of State asks the chief inspector to undertake his report once administrative review has been in operation for six months and to complete his report within the first year of the operation of administrative review. The chief inspector should build flexibility into his inspection plans to allow such specific requests.
The new clause requires that the Secretary of State commissions that report and the report must address specific concerns. If noble Lords look at the terms of the amendment, they will note that the specific concerns that the chief inspector is being asked to address are ones that quite fairly reflect some of those raised in your Lordships’ House in Committee—namely, the effectiveness in identifying and correcting case working errors and the independence of the person conducting the administrative review in terms of their separation from the original decision-maker.
Baroness Manzoor (LD)
Will the chief inspector look at the substantive elements of the case rather than just the procedural review of the case and whether that has been effective? Will he also assess the merits of the case in the samples that he takes?
Lord Wallace of Tankerness
My Lords, I mentioned to my noble friend the report on out-of-country cases in Warsaw in December last year which concluded that in 88% of the cases reviewed the right decision had been reached. You can do that only if you actually look at the subject matter. Therefore, I would fully expect that the chief inspector, in undertaking his report, would have to be able to give some indication as to whether there was greater efficiency and greater accuracy in decision-making. You would have to look at sample cases to see whether the right decisions had been reached.
Amendment 14, in the names of my noble friends, requires the Government to consult on the immigration rules for administrative review. As I have already indicated, the Government will undertake a targeted consultation on the immigration rules establishing administrative review before those rules are laid before Parliament. It is not necessary to place an obligation to consult on the face of the Bill as the Government have already committed to doing so. The proposed new clause also seeks to ensure that administrative review is the subject of an early inspection and report by the Independent Chief Inspector of Borders and Immigration. As my noble friend Lady Hamwee acknowledged, Amendment 12, tabled by the Government, requires the Secretary of State to commission such a report from the chief inspector.
My noble friend raised the out-of-country administrative review note that she received. She saw the same point that I had noticed, which indicated that out-of-country reviews are free. I then noted that the statement of intent, which was published along with the Bill, indicated that there would be a fee of £80. I have queried why that is the case. I understand that a separate charge for an administrative review is incorporated into the visa application charge. To do that for in-country reviews would require increasing visa charges. I rather suspect, given what has been said in a number of other debates, not least with regard to students, that that would not be the most popular course to go down. The review is free, but the cost is already incorporated within the visa charge.
I believe that we have accepted a recommendation emanating from the chief inspector about how administrative review can work. I believe that it will work because we are following up on recommendations that have been made about how these decisions can be made more efficiently. Where we have heard evidence of administrative review working for out-of-country applications, there has been a significant improvement over the 60% of errors that were identified in that period with regard to in-country appeals. Therefore, particularly with regard to the huge difference between 28 days and 19 weeks—I suspect overall that it will be cheaper if one does not have to engage learned counsel—we are proposing something here that will be of benefit not only to applicants but to the general administrative procedure as a whole.
Therefore—I suspect without any success—I ask the noble Baroness to withdraw her amendment and to recognise that the Government have listened to what was said in many cases in Committee. We are putting on the face of the Bill an obligation on the Secretary of State to commission a report from the chief inspector and particularly to have regard to the specific concerns raised in Committee. I therefore hope that she will withdraw her amendment.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for his full explanation. He is right: there has been some movement to address the concerns that we raised in Committee, and I welcome the Government’s new clause. I must admit that he has gone further tonight than I thought when I read the new clause when he said in response to the noble Baroness that the chief inspector would look at the substantive issues and not just those such as the effectiveness mentioned in the amendment. That is certainly welcome. I wonder whether the inspector will be able to deal with possibly thousands of cases every year.
Although the Minister says that the majority of applications are successful, it remains that a third of all appeals succeed due to casework errors. I take his point about speed. It seems that the Government are more concerned with the cost and speed of decision-making than with accuracy and fairness. I would point to the system at the Department for Work and Pensions, where there is a process for administrative review but that does not prevent an appeal taking place as well if that remains the decision of the person who was refused. I have already said that I think the Government’s reliance on the overseas system of administrative review is flawed for a number of reasons. I am also surprised that the Minister seems to be at odds with the noble Earl, Lord Attlee, who referred to case working decisions being a judgment decision on a balanced decision, yet the Minister referred to it as following rules. We seem to be being informed about two different systems.
As much as I welcome the comments that the Minister has made—and I am grateful to the noble Lord, Lord Pannick, the noble Earl, Lord Clancarty, and the right reverend Prelate the Bishop of Leicester, who is unable to be with this us at the moment—I feel that the Minister has not really addressed the reasons why the Government are removing a fundamental right of appeal for judicial review. The explanation and the evidence were not there and I feel that I have to test the opinion of the House on this issue.
Lord Taylor of Holbeach
“Report by Chief Inspector on administrative review
(1) Before the end of the period of 12 months beginning on the day on which section 15 comes into force, the Secretary of State must commission from the Chief Inspector a report that addresses the following matters—
(a) the effectiveness of administrative review in identifying case working errors;(b) the effectiveness of administrative review in correcting case working errors;(c) the independence of persons conducting administrative review (in terms of their separation from the original decision-maker).(2) On completion of the report, the Chief Inspector must send it to the Secretary of State.
(3) The Secretary of State must lay before Parliament a copy of the report received under subsection (2).
(4) In this section—
“administrative review” means review conducted under the immigration rules;
“case working error” has the meaning given in the immigration rules;
the “Chief Inspector” means the Chief Inspector established under section 48 of the UK Borders Act 2007;
“immigration rules” has the same meaning as in the Immigration Act 1971.”
Health: Innovative Medicine
(10 years, 1 month ago)
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Baroness Thomas of Winchester
To ask Her Majesty’s Government what steps they are taking to ensure early access to innovative medicine for life-threatening conditions.
Baroness Thomas of Winchester (LD)
My Lords, I am grateful to have attracted such a stellar cast for the important matters that we will be talking about in this short debate this evening. I hope that it might build on the interesting debate on 13 March on regenerative medicine, in which my noble friend Lord Willis of Knaresborough said:
“The King’s Fund estimates that by 2070, 20% of the UK’s GDP will be spent managing long-term conditions”.—[Official Report, 13/3/14; col. 1944.]
Such a situation would be unsustainable and unaffordable, and we must ensure that new treatments and technologies are found so that the quality of life of those with long-term conditions is as good as possible.
The very next day after that debate last month, the Government announced the early access to medicines scheme, which offers a way by which unlicensed medicines can be made available to patients before approval of a licence to benefit public health. The scheme has been warmly welcomed by many of us who are involved with rare-disease patient groups and their families. Indeed, with the support of the Muscular Dystrophy Campaign, the All-Party Parliamentary Group for Muscular Dystrophy, in its report last year, highlighted the need for such a scheme. Ground-breaking research for potential treatments for rare diseases is set to grow and this scheme should ensure that patients will, in future, be able to get the treatments that they need at a much earlier stage of the process.
Professor Dame Kay Davies of the department of physiology, anatomy and genetics at Oxford University is leading the development of a potential treatment for Duchenne muscular dystrophy, which is currently in early clinical trials. She said:
“The introduction of a ‘fast-track’ system offers an exciting opportunity to intervene in a safe way and ensure effective medicines reach the people who need them as early as possible. It is good news for families affected by Duchenne muscular dystrophy, who are deeply anxious about the speed at which future potential therapies will reach their children. Several potential treatments are in clinical trials and further laboratory research projects are underway—the prospect of accelerating the progress of approaches that show particular promise is a very welcome one”.
This view is supported by many families of boys with Duchenne, who say that every second counts and time is not a luxury that they have.
Professor Dame Sally Davies, the Chief Medical Officer, said that the scheme would allow drug-makers to demonstrate the value of unlicensed medicines, improving their chances of eventual approval by regulators and NICE. Obviously, allowing patients early access to medicines is not without some risks, which is why the Government were right to be clear that sufficient data must be available to demonstrate safety before a drug can be considered under the early access scheme.
The Minister will know that I was bound to mention the dismay of many of us in this field at the fact that AGNSS—the Advisory Group for National Specialised Services—was being disbanded, along with NHS Specialised Services. AGNSS was responsible for the appraisal of very rare drugs, while NHS Specialised Services had responsibility for the commissioning of services for very rare diseases, as well as a ring-fenced fund to subsidise treatments for the drugs to treat these diseases. AGNSS’s duties have transferred to NICE—the National Institute for Health and Care Excellence—while NHS England has taken over the NHS Specialised Services role. However, little clarity was given on what the new appraisal and commissioning processes will look like and there was widespread concern that NICE’s “cost per quality-adjusted life year” approach to the appraising of new drugs will effectively exclude, on the grounds of high costs, treatments for small patient populations.
NICE has now established its highly specialised technology programme, responsible for the appraisal of orphan drugs. Unfortunately, early indications of its outlook on high-cost treatments do not appear promising, although it is still at an interim stage. A current example is the approval that NICE is considering for Soliris, a treatment for atypical haemolytic uraemic syndrome, a rare blood disorder that may be inherited. Before Soliris, there was no treatment available to prevent death or organ damage and up to 25% of patients would die following their first attack. Soliris was recommended for approval by AGNSS, based on its effectiveness in halting the progress of the disease and its low cost per quality-adjusted life year. It was assumed that, as a result of this recommendation, the drug would be available to patients from October 2012. However, in January 2013 the Government announced that Soliris would be subjected to a second assessment, under the new system for specialised services within NICE, and Alexion Pharmaceuticals, which developed the drug, has been asked to explain the high cost of Soliris.
NICE has also asked for advice from NHS England on what considerations relating to the management of its specialised commissioning budget it considers should be taken into account in formulating a recommendation. I hope that the fears that many people voiced when AGNSS was disbanded that treatments for rare disorders might be denied on grounds of high costs are not going to be realised. After all, patients with rare and life-threatening conditions deserve access to treatments just as much as those with more prevalent conditions.
The next matter that I wish to raise is the clinical trials process, which must be speeded up. One way of achieving this could be to authorise a process of study approval whereby various stages of clinical trials can be conducted in parallel with one another. This would avoid a lengthy sequential process. For example, in the case of exon-skipping technologies for Duchenne, each drug or molecular patch will treat only certain specific mutations causing the condition and, under current procedures, future molecular patches would have to go through the same lengthy requirements. Will my noble friend the Minister urge the Medicines and Healthcare products Regulatory Agency and NHS England to consider such a study approval process?
Another important consideration is the clinical trial infrastructure, including additional specialist centres to enable more patients to participate in clinical trials. During the APPG inquiry, we were concerned to hear about the cutting of administrative support by some hospital trusts. It is a false economy to cut back on this infrastructure, such as patient registries. At present, many patient registries are charity-funded, with little or no long-term funding security. With limited back-office support, some centres are finding that there is no one available to input patient data. Consequently, such cuts can seriously damage the ability of centres to carry out large-scale clinical trials. Will my noble friend say what steps the Government are taking to ensure that centres and clinics across the UK have the resources required to manage patient registries and for clinical trials to be carried out?
Finally, in last month’s debate my noble friend said that consideration of the Health Research Authority’s business case to bring together and streamline NHS approvals and local ethics approvals should be completed shortly. Will he update us on that? Will he also endorse the need to streamline NHS approvals so that unnecessary regulation and delays are avoided? We must always look forward with great optimism in the search for treatments for intractable conditions. The early access to medicines scheme is a very welcome initiative, which must not be allowed to fail because of bureaucratic obstacles in its path.
Baroness Jolly (LD)
I remind noble Lords that we are tight for time this evening. Six minutes is the limit and, as soon as the clock reaches six, your time is up.
Lord Kakkar (CB)
My Lords, I congratulate the noble Baroness, Lady Thomas of Winchester, on securing this important debate. In so doing, I declare my own interests in healthcare, in particular that I am chairman of UCLPartners and the UK business ambassador for healthcare and life sciences. I, too, congratulate Her Majesty’s Government on their early access scheme, recently announced, which is important for patients and healthcare professionals and in securing the ecosystem around the delivery of life sciences in our country. That is vital not only for the delivery of innovative healthcare, advancing clinical outcomes and improving the ability of our patients to benefit from advances in medical research, but because the life sciences sector in our country plays such an important role in the economy more broadly.
As we have heard from the noble Baroness, Lady Thomas, the scheme is fundamentally driven to ensure that innovative medicines that have undergone a degree of thorough scrutiny by way of clinical evaluation could be made available to patients with life-threatening and debilitating conditions before they would normally have received their full licensing, which is very important. I ask the noble Earl how Her Majesty’s Government plan to ensure equity of access to the scheme, bearing in mind that these innovative products will not, at the stage when they will become available as part of the scheme, have had approval for cost-effectiveness through the processes of the National Institute for Health and Care Excellence. Therefore, it is important that careful attention is paid to ensuring that, if those innovative medicines are to be provided as part of a specialist commissioning infrastructure within NHS England, it is done in such a way that patients throughout the NHS in England can avail themselves of those important innovations, because they will be some of the most vulnerable patients whom we see with life-threatening conditions or chronic disabling and debilitating conditions.
In that regard, I wonder whether the noble Earl can give a view on the potential role that academic health science networks, such as UCLPartners, might play in promoting access to innovative therapies as part of the early access scheme. As part of their original designation and licence obligations, the academic health science networks had to give undertakings with regard to the diffusion at scale of innovation across the populations for which they have responsibility. Do Her Majesty’s Government see a role for the academic health science networks in the early access scheme with regard to those diffusion of innovation obligations? If so, does the noble Earl believe that the arrangements for funding the academic health science networks, bearing in mind that the scheme will run for a number of years, are sufficiently secure?
Beyond the important contributions that Her Majesty’s Government have driven over the past four years in innovation in healthcare, through the development of the academic health science centres and networks and through the promotion of the National Institute for Health Research and its translational medicine research elements, which are vital to the early access scheme by encouraging industry and other biotechnology partners to work with the institute to undertake the research evaluation that will bring those innovative medicines more quickly to bear in the management of patients in the most desperate of circumstances, there is also the important question of the legal framework within which innovation can take place. That relates to innovation not across the system but to an individual clinician innovating for an individual patient and, therefore, the culture of innovation in our healthcare system.
The noble Lord, Lord Saatchi, recently promoted the Medical Innovation Bill, which is intended to address the important question of whether a legal impediment to innovation resulting from an accumulation of case law has changed the way in which clinical practice is discharged. I know that on 22 November 2013 the Secretary of State recognised, in a Written Statement, that there may well indeed be unintended consequences of the way in which case law is now interpreted that will stifle innovation with regard to the individual clinician providing care for the individual patient. As a result, Her Majesty’s Government are currently undertaking a broad consultation on the question of whether a Bill to help to clarify those ambiguities in law is necessary. Can the noble Earl provide some further insights into how the consultation is proceeding and where Her Majesty’s Government’s thinking is with regard not only to dealing—as they have done effectively—with the systems issues about innovation at scale and pace for large populations, but to the ability of individual clinicians to practise innovative care in a responsible and structured framework for the individual patient in front of them, often making use not only of personalised medicine and the revolutions in genomic medicine that will drive individual decision-making for patients, but also of this impressive early access scheme?
Lord Colwyn (Con)
My Lords, in the late 1970s and early 1980s, I regularly annoyed House of Lords Health Ministers from both sides of the House with what I described as innovative treatments for common diseases which had not completed the necessary trials and approvals, but which were harmless and cheap. Those treatments tended to involve homoeopathy, acupuncture, herbal medicine and traditional Chinese medicine. At the time, I was president of the Natural Medicines Society, and I declare my interest now as president of the All-Party Parliamentary Group for Integrated Health Care.
Recently, there have been many instances of the need to try new drugs which have not completed their normal phase trials and testing but might be able to be used on patients who have few remaining treatment options. My noble friend will forgive me if I resurrect some of those ideas, which were rejected and never used to treat patients in the UK. The Innovative Medicines Initiative will pave the way for new vaccines, medicines and treatments to tackle major health challenges, but many of the challenges have been there for many years. Artherosclerosis is by far the largest health problem affecting the western world. Attitudes to its prevention and to the ability to reverse its effects have ranged from the extremes of those who feel that it is completely preventable and reversible to those who regard it as an inevitable ageing process for which there is no remedy.
Lower limb peripheral arterial disease can affect about 9% of the population, and the incidence increases with age. About 20% of people aged over 60 have some degree of peripheral arterial disease. Incidence is higher in people who smoke, people with diabetes and people with coronary artery disease. Peripheral arterial disease occurs when the vascular system becomes obstructed due to atherosclerosis. The obstruction leads to gradual tissue death in the lower legs because of the lack of blood, which carries vital nutrients and oxygen. Critical limb ischaemia is characterised by severely diminished circulation, ulceration, tissue loss and gangrene. Amputation is a major risk for those patients, particularly those who have diabetes.
I invite my noble friend to revisit the techniques of oxidative therapy, first reported in the Lancet in 1920. There are many theories about the different functions of hydrogen peroxide in the body, and a great deal of scientific material supports almost every one. At one time in my dental career and as president of the Arterial Health Foundation, I tried to persuade the Government to examine the claims of the practitioners of EDTA chelation therapy. I have some personal experience of that technique. Over a period of six months at a clinic in Eindhoven, I followed the treatment plans of several patients who were unable to walk more than a few paces and had all been recommended for amputation. After two months, they were walking and then were able to run. Seeing those patients improve is something that I shall never forget.
Chelation therapy removes heavy metals from the arteries and is able to improve the blood flow to all areas and so preserve health and normal function by re-establishing peripheral circulation—supplying oxygen and essential nutrients. Ethylene diamine tetra acetic acid is introduced into the blood by intravenous drip and binds itself to heavy metals, such as lead, mercury, cadmium and other minerals, including calcium, and is excreted normally via the kidneys.
For many years, physicians in the US and Europe have used the chelating agent EDTA as an anti-atherosclerosis drug. A large anecdotal history has grown up supporting its value. In the 1950s and 1960s, a number of uncontrolled trials reported favourably on its value in cardiovascular disease, ischaemic heart disease and peripheral vascular disease. However, none of the trials was properly controlled by the double-blind procedure and thus the use of EDTA has not gained acceptance among the majority of physicians.
A patient might need 20 infusion visits of three hours. The EDTA solution travels through every blood vessel in the body, treating every vessel from the aorta to the smallest capillary. Chelation therapy was first developed in the US, and has been approved by the FDA as a way to remove toxic metals such as lead and mercury from the bloodstream, but no such approval has been granted for its use in unclogging the arteries of heart patients. Its use in that area remains controversial.
Intravenous EDTA chelation therapy, properly administered, is a safe, economical and effective treatment for the symptoms of atherosclerosis caused by free radical pathology. There is insufficient time to examine the technique in more detail, but I believe that it is a treatment that should be carefully considered before resorting to amputation.
About 20 years ago, I had a course of treatment myself, partially to eliminate small deposits of mercury, which tended to build up in dental practitioners, and partially to demonstrate to the Secretary of State for Health at the time—my noble friend Lady Bottomley—that the treatment was harmless. The heavy metals were removed and I survived the treatment. If I was told that I needed to have a leg removed, I think that I would seriously consider chelation as a first line of defence.
Baroness Masham of Ilton (CB)
My Lords, I thank the Baroness, Lady Thomas of Winchester, for obtaining this debate and I congratulate her on all she does for people with muscular dystrophy. I also congratulate the All-Party Group on Muscular Dystrophy on its report on access to high-cost drugs for rare diseases. I know first-hand how desperate it can be when someone one knows and loves needs a drug that may not be registered but may help them in a deteriorating situation. To quote from the report:
“To ensure that patients with rare diseases are not denied vital and cost-effective treatments we need to see the NHS develop a new model with regulators and the industry”.
There are many people across the country who have rare conditions and need specialist treatment. There are many parliamentary groups dealing with particular diseases, illnesses and disabilities. The message I get from them all is that the delivery of services is patchy across the country. The message that I get from the Government is that services should be dealt with locally. However, the National Health Service should at least have national minimum standards and the guidelines set out by NICE should be adhered to.
I agree with the statement in the report that the Government should establish a ring-fenced fund for rare disease drugs to ensure that patients affected by rare diseases are not denied treatment. Is there not such a fund in Scotland? In England, the cancer drugs fund has been of great help to people with rare cancers. There was also a recommendation about ensuring that NHS England provides specialist centres equipped with an appropriate range of health professionals to deliver treatments. If patients do not get the correct diagnosis, treatment and advice, their condition nearly always gets worse and there is so much suffering and anguish.
I am always concerned when I hear it said that people with long-term conditions should be treated at home. They need the very best diagnosis and treatment, and to be taught how to manage their conditions by experts before going home. All interested parties should work in communication and co-operation to help the patients. Some of these conditions mean a shortened life, therefore patients should have the best quality possible for that life—and that means expert treatment and advice, and ongoing support when needed.
I stress how important specialist nurses are to these people who have rare conditions or complicated diseases. They are a vital support to consultants and patients, as well as teaching patients’ families and general nurses how best to look after those with special needs. They are the link between hospital and the community, so not to have them is false economy. I met a splendid group of specialist nurses last week, who told me that morale among nurses is not good. This is bad for patients. One of the reasons, they told me, was the shocking situation which happened at Mid Staffordshire NHS Foundation Trust and other tragic events. Yet another recent incident was highlighted over the weekend, but I can only praise the specialist nurses I have met, who are dedicated to helping their patients achieve the best possible life, often in very challenging situations. I hope that the Minister will agree that specialist nurses are essential.
There are so many rare conditions which need research that can give hope for the future. Approaches which undervalue new treatments can impede innovation, distort therapeutic decision-making and undermine global welfare. We need progress, not limitations.
Baroness Grey-Thompson (CB)
My Lords, I thank the noble Baroness, Lady Thomas of Winchester, for tabling this debate. This is not a subject which I have previously spoken about in your Lordships’ Chamber, but a chance conversation in the corridor encouraged me to listen, and then to speak.
The subject of what medication should be given to patients with life-threatening conditions to ensure good-quality life is very interesting to me as, linking it to other work that I am doing on disability rights and quality of life, it has helped me to further examine the relationship between the public’s view of being sick or ill and being disabled. All too often the impression is given that if you are disabled, you must probably also be ill and therefore have a high cost attached to you. It is important to understand that the two are not synonymous.
I am interested in this subject because I have a number of friends who have been involved in various drugs trials and, while I do not require any medication, in my time as a wheelchair user I have certainly been offered experimental surgery to “fix” what were seen as my problems. This is of course not related to the issue of medication. However, one of the procedures that I was offered was a leg-lengthening operation when I was already paralysed; it would have made no difference to whether I could walk or not, or my ability to use callipers. Then years later, it was revealed on a television programme as an innovative procedure.
Concerning “life-threatening conditions”, I, like many others, would like to see further clarification on what that definition involves. I would also like to see what other options could be explored, such as developing physical literacy, physical health and healthy lifestyles. I know that this happens in many cases but I would like to be assured that this is the norm because, while medication is part of the answer, it is not the only answer. Many of my friends experience quite a lot of difficulties with urinary tract infections, but I have not had one of those since I was 13. I think that is because of my training and being active, and all the other things that are part of a healthy lifestyle.
I was interested to read the documentation provided in the Library, in which the Health Secretary, Jeremy Hunt, said:
“Making Britain the best place in the world for science, research and development is a central part of our long term economic plan”.
He added:
“Most people are only too happy to altruistically volunteer for medical research if it helps save lives”.
Encouraging investment in the UK is important in the light of some pharmaceutical companies choosing to reconsider where they are based and what research they are involved in. It is a useful aspiration to have, but we must of course be conscious of the balance between companies funding research for ultimate profit and giving people positive options.
In researching for this debate, I found many cases where hundreds of millions of pounds were spent on trials that may or may not be successful. My husband is a research chemist, so I have a little understanding of the cost of developing and testing new products, although in his case it is high-temperature chain oils. I also think that many of us who are not medics or involved in that profession often do not understand the cost of some of these medications. I was in the USA recently with my family when my daughter developed an ear infection. A trip to see a nurse practitioner was $100; it was another $100 to see a doctor and a very small bottle of branded medication was $400.
I will also briefly refer back to a Question asked by the noble Lord, Lord Clement-Jones, which is listed in Hansard as HL 991. The noble Earl responded by saying that:
“We are exploring ways in which patients can continue to benefit from innovative cancer drugs at a cost that represents value to the NHS, in the context of developing the new pricing arrangements for branded medicines”.—[Official Report, 25/6/13; col. WA 111.]
This cannot be simply about businesses investing in the UK. Somewhere, we have to balance the budget.
Within this, I also believe that doctors have tremendous power to influence patients. I have been hugely fortunate and have had some amazing doctors in my life. In fact, without the NHS I would not be here. However, it is important to have appropriate guidelines for explaining to patients which drugs they are being offered, and for them to know whether they are new drugs or medication that has been previously been developed but is now being suggested for new indications. In terms of research, it is absolutely imperative that we have the appropriate number of people using medication to report back the data so as to be able properly to monitor it. There is no doubt that this work is important for many people who have life-threatening conditions. I look forward to future debates in this area.
Lord Walton of Detchant (CB)
My Lords, in thanking the noble Baroness, Lady Thomas, for initiating this debate, I declare an interest as the honorary life president of the Muscular Dystrophy Campaign. I hold similar appointments with many other medical charities.
This is a very important issue. I have given support over the past few years to the Rare Diseases Research Consortium and Genetic Alliance UK, chaired by Alastair Kent. Many of the 300-plus rare diseases that have been carefully characterised and identified by those organisations affect the neurological, neuromuscular and other, similar systems. Some are fatal but virtually all cause increasing disability of various kinds. Advances in molecular genetics over the past few years have been immensely exciting. In many of these diseases—in fact, the majority are genetically determined—the causal gene has been identified and, often, located.
The missing gene product has also been identified, as in, for example, dystrophin, normally a constituent of the muscle fibre membrane missing in Duchenne muscular dystrophy. Similarly, in Pompe disease, a condition causing severe muscle paralysis and affecting the heart, acid maltase has been identified as the missing substance. However, in many other neurological disorders, including the various cerebellar ataxias, the condition has been found to be due to multiple amino acid triplet repeats that actually, instead of being absent and therefore not causing absent metabolic activity, damage the human cells.
Treatments have begun to emerge in diseases such as cystic fibrosis, and acid maltase can be effectively treated by gene therapy in Pompe disease. As the noble Baroness, Lady Thomas, said, haemolytic uraemic syndrome, which affects only a few dozen people in the UK and is inherited, is effectively treated with a drug called eculizamab, which is highly effective. It is a life-saving treatment; without it, the disease moves to a fatal conclusion.
Many more such drugs are being developed, and in Duchenne muscular dystrophy drugs have been identified and used for the technique called exon skipping, which appears to work only in specific mutations and by no means in all. But Dame Kay Davies and her colleagues in Oxford are working on a mechanism of utrophin uptake regulation, persuading utrophin to move along the muscle fibre membrane to replace the missing dystrophin. These drugs are being trialled in excellent treatment trials in London, Oxford and Newcastle, funded by the Medical Research Council, the Muscular Dystrophy Campaign and other organisations.
So what is the problem? The problem is that more and more such drugs are coming on stream but, because the number of patients affected by these rare diseases is comparatively small, the drugs are not likely to be commercially successful. The industry has been extremely helpful in making them available for trials, but this cannot go on indefinitely. The drugs that are likely to treat rare diseases affecting 100-plus people are called ultra-orphan drugs, whereas those affecting 1,000-plus people are called orphan drugs, and it is clear that they are going to present an increasing problem over the coming years.
The problem is that the cost-benefit analysis that has usually been employed by NICE in assessing the value of these drugs is not likely to be helpful or even appropriate in assessing their value in the case of rare diseases. However, we await the outcome of NICE’s consultation on what it calls value-based medicines, and we hope that this will be positive in relation to these drugs. The government initiative of creating a rare diseases advisory group answerable to NHS England has been helpful but, most particularly, the early access scheme, to which other speakers referred, is most welcome as being a very exciting development for the future.
As time goes by, though, in my opinion those initiatives are not in themselves going to be enough. As my noble friend Lady Masham said, we miss the advisory group on national specialist services, AGNSS for short, which had ring-fenced funding. At the end of the day, it is more than likely that ring-fenced funding will be needed for the management and treatment of these conditions with orphan and ultra-orphan drugs. I hope that the Government will agree that in their new structure a neuromuscular clinical reference group should be established for this purpose.
Human suffering is not something that can be measured in numerical terms. The needs of these patients and their families are paramount. Somehow or other, this problem is one with which this and future Governments are going to have to come to terms.
Lord Hunt of Kings Heath (Lab)
My Lords, I declare my interests as chair of an NHS foundation trust, president of GS1 and a consultant and trainer with Cumberlege Connections.
I, too, congratulate the noble Baroness, Lady Thomas, on securing this debate on this vital subject. I welcome the Government’s announcement about the early access to medicines scheme. However, like the noble Lord, Lord Kakkar, I would like some assurance about the scheme being operated equitably. Will the Minister assure me that it will not apply just to patients being treated by specialist centres where research or clinical trials have been undertaken? I would also like to pick up the point made implicitly by the noble Baroness, Lady Grey-Thompson, which is that patients must be able to make an informed choice about whether to consent to the treatment being offered.
I also believe that this question raises much wider issues about the NHS approach to innovative medicines. It is a critical issue for NHS patients but is also critical in terms of the health of UK pharma and the contribution that it makes to our economy. I have long been troubled by the UK approach to innovative medicine. We have a hugely strong science base and a strong pharma R&D presence that cannot be taken for granted, yet traditionally we have been very slow on the general uptake of proven new medicines and treatments. Within the NHS, it is remarkable that drug costs are treated as a disturbing cost pressure to be held down, if they can be, whereas increased spending on clinical staff and medical equipment is seen as a good thing, per se.
The noble Earl and I have been debating these issues for many years. We debated the introduction of NICE. He will recall that NICE was introduced as a way of speeding up the introduction of new, innovative, proven treatments, but we know that we have some way to go. We also know that there are still some concerns about the conduct of medical trials in this country, which has a direct bearing on our approach to innovative new medicines and treatments. I refer the noble Earl to an interview given by the director of the Wellcome Trust, in which he expresses real concern about the continuing delay in medical trial approvals. He recommends generic protocols preapproved by ethic committees and institutions at a national level. I know the noble Earl has a particular responsibility in this area, and I would be very interested if he were able to comment on it.
We also know that, as the noble Lord, Lord Walton, suggested, there are gaps in the NICE methodology. The cancer drugs fund is an example of one government response to gaps in the methodology. This early-access scheme is another. The noble Baroness, Lady Thomas, and the noble Lord, Lord Walton, discussed orphan drugs. That is another area where, left to itself, the market will not enable them to be brought to market at an affordable cost. As the noble Lord, Lord Walton, said, NICE is working on a value-based approach. It is clearly early days, but if the noble Earl were able to comment on the extent to which he thinks that would enable NICE to produce new methodologies that would cover these areas, that would be very welcome. The alternative is that government is simply going to have to fund and top-slice various little funds to meet gaps in the NICE approach. At some point, that will call into question the whole NICE approach. I think we have recognised for some years that, while overall the NICE approach is lauded internationally, there are gaps that we have to find a way of filling.
My final question for the noble Earl is about clinical commissioning groups. One of the issues about innovative medicines is the decisions now being taken by these new organisations. The noble Earl will be aware of research in the past few months that shows that in relation to technology appraisals, there can be up to a twentyfold variance in uptake in different parts of the country. He needs no reminding that there is a legal requirement on clinical commissioning groups to fund NICE technology appraisals. I am concerned that clinical commissioning groups are ignoring their statutory responsibilities. This is the other end of the whole approach to innovation. If we are unable to guarantee to patients that these innovative treatments are going to be introduced in the NHS, we are letting patients down. I hope the noble Earl will be able to give us some reassurance on this.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I congratulate my noble friend Lady Thomas on securing this debate and I am grateful to her for providing the opportunity to update your Lordships on, in particular, the early access to medicines scheme. It is just one way in which the Government are supporting improving patients’ access to new medicines.
I begin by making it clear that our priority is to ensure that patients, including those with rare and life-threatening or life-limiting conditions, have access to new and effective treatments on terms that represent value to the NHS and the taxpayer. I agree with the noble Baroness, Lady Masham, that it is essential that people get the medicines and treatment that they need. That is why we have set up the cancer drugs fund and why we have NICE to give evidence-based advice to clinicians and the NHS.
On 5 December 2011, the Prime Minister announced a new strategy for UK life sciences. One of its commitments was that,
“early in 2012 the MHRA will bring forward for consultation proposals for an ‘Early Access Scheme’”.
I am pleased to be able to say that, following public consultation co-ordinated by the Medicines and Healthcare products Regulatory Agency—known as the MHRA—and engagement with patient groups and industry, we announced the early access to medicines scheme on 14 March. The purpose of the early access to medicines scheme is to support access in the UK to promising new, unlicensed or off-label medicines in areas of unmet medical need. Under the scheme, the Secretary of State for Health, acting through the MHRA, will provide a scientific opinion on such medicines to treat, diagnose or prevent life-threatening or seriously debilitating conditions that do not have adequate treatment options. This could include patients with advanced cancer or children with Duchenne muscular dystrophy.
MHRA is responsible for managing the scientific aspects of the scheme, which will follow a two-step process. Step one involves giving a new medicine a promising innovative medicines designation, known as a PIM designation, which will provide an early indication that a product may be a possible candidate for entry into the early access to medicines scheme, based on the available clinical data. Companies that wish to move to step two must hold a PIM designation and provide further relevant data on their product’s quality, safety and efficacy. At step two, the MHRA will produce a scientific opinion describing the benefits and risks of the medicine, based on information submitted by the applicant after sufficient data have been gathered from the patients who will benefit from the medicine.
The scientific opinion will be made available on the MHRA’s website to assist clinicians and patients in making treatment decisions and to support informed consent by patients by informing them of the risks and benefits of the product. The scheme will be launched and ready to receive applications from Monday of next week, 7 April 2014. I understand that full details, together with guidance, will be published on the MHRA website at this time.
The noble Lords, Lord Kakkar and Lord Hunt, asked about equal access for patients under the scheme. EAMS medicines will be provided for free by the company concerned. The scientific opinion will be available on the MHRA website, as I have mentioned, to allow doctors and patients to make treatment decisions. That will provide an equitable platform for patient access.
The noble Lord, Lord Kakkar, also asked about academic science input into the scheme. The scheme is open to academics, industry and charities, provided that the criteria are met. Step one, the PIM designation, would also be open to academic research units such as at UCL. As the noble Lord mentioned, academic health science networks could well have a role in promoting the scheme. All AHSNs are now up and running and their funding is assured for the immediate future.
It is important to recognise that the early access to medicines scheme is a UK-only scheme that relates to unlicensed medicines en route to market. It is always better for a patient to receive a licensed medicine where possible and for companies to have the legal certainties that come with a marketing authorisation. For this reason, the MHRA continues to engage at both European and global level to explore how the medicines licensing process can become more efficient. We welcome the European Medicines Agency’s launch of its adaptive licensing pilot on 19 March 2014, as the MHRA has had a leading role in the preparation of the pilot and accompanying guidance.
Adaptive licensing is a prospectively planned, adaptive approach to bringing drugs to the market. It seeks to maximise the positive impact of new drugs on public health by balancing timely access for patients with the need to provide adequate evolving information on benefits and harms. Adaptive licensing uses the regulatory processes and flexibilities within the existing EU legal framework, such as conditional marketing authorisation. The pilot will explore the strengths and weaknesses of all options for development, assessment, licensing, reimbursement, monitoring and utilisation pathways in a confidential manner and without commitment from regulator or company. I plan to meet relevant government and industry partners later this month to ensure that the UK can capitalise on the pilot. I hope that UK-based companies will be at the forefront of those presenting products to the EMA.
The noble Lord, Lord Kakkar, asked about the draft Medical Innovation Bill, which aims to encourage responsible innovation in certain circumstances and to discourage irresponsible innovation. I echo the noble Lord’s thanks to my noble friend Lord Saatchi for putting these concepts before your Lordships’ House previously. We are currently consulting on this draft Bill. The consultation paper was published on 27 February and the consultation runs until 25 April. For that reason, I am afraid that I am not yet in a position to make a definitive pronouncement on the Bill’s provisions.
The noble Lord, Lord Kakkar, asked about equality of access to specialised services. NHS England, as he knows, is now responsible for commissioning prescribed specialised services across England, so patients should know what services they can expect. The Government remain totally committed to making the UK a world-leading place for life sciences investment. The noble Lord was right to say that trialling drugs is an expensive business, but good progress is being made through the life sciences strategy to build a better life science ecosystem to attract and develop talent, to reward innovation and to overcome barriers to innovation. The Strategy for UK Life Sciences states:
“It has become increasingly challenging for life sciences companies, particularly SMEs, to discover, develop and commercialise medical innovation”.
AHSNs, as the noble Lord rightly said, have therefore been set up as a key response to these challenges, acting as the link between the NHS and industry. I think that the universal coverage of AHSNs has had multiple benefits in terms of potential UK growth.
The noble Lord, Lord Walton, and my noble friend Lady Thomas mentioned ultra-orphan drugs. We are aware of the challenges posed by treatments for the very rare conditions, with small patient populations, for which these drugs are made. My noble friend expressed particular worry about eculizumab, or Soliris. From April 2013, NICE has been responsible for the evaluation of selected highly specialised health technologies. It issued draft guidance on 27 February which does not recommend the drug’s use. Stakeholders had until 25 March to submit comments to NICE. I must stress that NICE has not yet issued its final guidance on eculizumab to the NHS and I understand that that is expected in July. While NICE undertakes its evaluation, NHS England has developed an interim commissioning policy to enable patients with aHUS to receive eculizumab. To clarify, AGNSS found that eculizumab was clinically effective but that further information was needed to demonstrate its cost-effectiveness. That is why we tasked NICE with evaluating it.
All candidate medicines have the potential to induce toxicity. I will address the interesting speech of my noble friend Lord Colwyn by reminding noble Lords that medicines must undergo a series of rigorous assessments, progressing from small cohorts of patients in rigorously controlled conditions to larger and more diverse groups of patients, thus ensuring quality, safety and efficacy. We have three phases of clinical trials to ensure that those things are assured.
It is possible to run adaptive licensing design studies that allow for modifications as the trial progresses; for example, the numbers of different treatment arms can be tried out. Such designs have the potential to speed up clinical development and can use resources more efficiently. There is regulatory guidance on adaptive designs. I respond to my noble friend Lady Thomas by welcoming many features of the new clinical trials regulation, which provides for a more streamlined approach, with the introduction of combined clinical trial and ethical approval and a single portal for all EU applications.
I share the enthusiasm and excitement of the noble Lord, Lord Walton, about the developments in genetic medicine. That is why we have established Genomics England, a development that has put us firmly at the head of the field.
The noble Lord, Lord Hunt, asked what we are doing to ensure the rapid uptake of NICE-recommended drugs in the NHS. Innovation, Health and Wealth, a document that we published in 2011, set out a range of measures to support the rapid uptake of NICE-approved medicines in the NHS, including the establishment of the NICE Implementation Collaborative, the automatic incorporation of NICE-recommended drugs into local formularies and the introduction of an innovation scorecard to compare local uptake. Good progress has been made in delivering those commitments, but we recognise that more can and should be done. We are committed to seeing Innovation, Health and Wealth progress.
There are variations in drug usage among CCGs. As the report points out, there can be many reasons for variation. Different areas may have different health needs and it is right that the treatments used should be decided by doctors and patients. As I have said to the noble Lord before, we are committed to tackling unjustified variation in the usage of medicines and we encourage NHS organisations to consider the findings of the report in the context of the needs of their populations.
As my time is running out, I will have to write to noble Lords to cover those issues to which I have not yet managed to reply. However, in conclusion, I was pleased to announce yesterday my approval of the business case presented by the Health Research Authority and the funding that goes with that to enable it to fulfil its remit. The HRA will provide a single approval for research in the NHS to radically streamline and simplify how studies are set up. I believe that the UK’s approach of allowing patients access to promising but as yet unlicensed medicines while encouraging greater use of European licensing flexibilities will provide much earlier access to a number of innovative new medicines, in particular in areas of unmet need. We can be proud of the leading role that we play in ensuring that the UK remains one of the leading countries in which to develop medicines and to see them reach the patient’s bedside in clinical use.
Immigration Bill
(10 years, 1 month ago)
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The Earl of Sandwich
“( ) An appeal to which subsection (3) applies must be brought from within the United Kingdom if the appellant has a child in the United Kingdom, and it would be in the best interests of that child for the appeal to be brought from within the United Kingdom.”
The Earl of Sandwich (CB)
We had a long discussion about children earlier in the afternoon, and I am bringing back the subject of children today under the heading of “deportation”. This amendment is about the children of parents who are facing deportation. The Minister may remember that I was away for most of Committee, but I mentioned it at Second Reading and pointed out that, under the Bill, against the advice of the JCHR, individuals removed from this country may be prevented from challenging their deportation if they are no longer in the UK, and that their children, if separated from them for this or for other reasons, may be in particular difficulty. The noble Baroness, Lady Hamwee, expressed similar concerns in her amendment in Committee.
If the parent is removed, how will the Home Office discover the true situation of the child? As the noble Lord, Lord Pannick, said in that debate, in the light of the changes going on to judicial review, and other changes, there are real concerns about whether an effective practical remedy will remain available. The noble Lord, Lord Avebury, also brought this issue up earlier today. There will be huge practical barriers to individuals appealing their deportation from abroad. Such cases often turn on issues of credibility. Appellants will be severely disadvantaged by not appearing in court and, in the present climate of legal aid cuts, they will face serious problems in accessing any legal advice.
The noble Baroness, Lady Hamwee, had difficulty with a similar amendment, which is why I am bringing it back with an additional reference to the UN Convention on the Rights of the Child. Not surprisingly, this convention states that the child should not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine that such separation is necessary for the best interests of the child. Earlier, the noble Lord, Lord Taylor, gave yet another assurance on this. I note that Amendment 58 is about a duty regarding the welfare of children, and that the amendment in the name of the noble Lord, Lord Watson, concerns the best interests of children.
This matter surely also covers the point made in a previous debate by the noble Lord, Lord Bourne, that there might be ambiguity about what the best interests of the child were, and that the child might be better off with relations abroad. However, that does not, of course, cover every case. According to legal experts I have consulted, the safeguards under the Bill are insufficient. The noble Baroness, Lady Smith, said that there was still uncertainty in the clause as it stands. Therefore, my first question is: how will the Government consider a child’s best interests before deporting a parent to appeal from abroad?
The noble and learned Lord, Lord Wallace, said that the power was a discretionary one, applied only where there is not a risk of serious irreversible harm, and that it will therefore not be applied in all Article 8 cases. However, a parent’s deportation may result in grave harm to a child that is not irreversible. Therefore, my second question is: will parents be deported before an appeal in cases where this action will cause serious harm to their child, but only serious harm that the Home Office deems will not be irreversible? In Committee, the noble and learned Lord made it clear that we are dealing largely with criminals as well as failed asylum seekers. That may be so, yet one in three of these people does not fall neatly into that category; we know that because, in 2012-13, 32% of deportation appeals succeeded.
A number of these cases concern parents with British children or settled children who would be significantly harmed by their parents’ deportation. There are plenty of examples from the children’s consortium and Bail for Immigration Detainees which I will not relate today. However, the 2013 UNHCR report highlighted cases where Home Office decision-makers failed adequately to consider the child’s best interests, including in relation to Article 8 of the ECHR. The Home Office can already prevent repeated appeals by certifying claims as clearly unfounded, but Clause 16(3) will prevent people with arguable cases accessing justice.
The noble and learned Lord gave the assurance that, in exceptional circumstances, the power would not be applied—so what are the exceptional circumstances? It is argued that exceptional funding also provides a safeguard. However, the Joint Committee found in December 2013 that out of 746 people who had applied for exceptional funding, only 15 were granted funding, and two of those were immigration cases. We are back to the same old argument. In the experience of Bail for Immigration Detainees, detainees seldom have the skills needed to make their own applications—I know that the noble and learned Lord has heard this time and time again, but it is true—and solicitors rarely make applications because the work has to be done at the risk of non-payment.
I will give just one case study: that of Simone and Ray. Simone was trafficked into prostitution in the UK for three years and was then convicted of a drug-related offence. Her son, Ray, was a British citizen. He was less than one year old when she was arrested, and nearly four by the time of her release. During her sentence, he repeatedly asked for his mother, cried in his sleep, stopped eating properly and screamed uncontrollably after phone conversations with her.
The Home Office argued that Ray could leave the UK with Simone, but by this time he had close bonds with his father, who could not leave the UK for other reasons. Simone successfully appealed her deportation—but if Clause 16 becomes law, people like her will be deported before they can appeal.
Finally, as we are talking about removals, I heard only yesterday that the Home Office has decided to stop offering assisted voluntary return to anyone held in immigration detention as of today, 1 April. This scheme is operated by Refugee Action, through its Choices service. What is the purpose in ceasing to offer assisted voluntary return to those in detention? Do the Government not appreciate the negative effect this will have on removals and on the co-operation of detainees? I beg to move.
Lord Watson of Invergowrie (Lab)
My Lords, I shall speak to Amendments 16 and 20 in this group, which appear on the Marshalled List in my name.
Amendment 16 would ensure that the Bill recognised that the promotion of the best interests of the child is not simply a matter of the rights to be interfered with being in the public interest but that the promotion of those best interests is, in itself, in the public interest. In its current form, Clause 18 does not allow for proper consideration of the best interests of all children, as required by UK and international legislation. Despite government Amendment 58 reiterating their commitment to the Secretary of State’s duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, Clause 18 does not make clear the need for the best interests of children to be a primary consideration in any Article 8 case involving a child. That includes those who are not British citizens and those who have not lived in the UK for at least seven years.
Amendment 58 does not address the concerns raised by non-governmental organisations, including the Refugee Children’s Consortium, about the lack of an explicit provision in Clause 18 to have regard to children’s best interests. What is required is a provision stipulating what judges must have regard to in the public interest when considering Article 8 of the European Convention on Human Rights in respect of family and private life.
Courts and judges are not under a statutory obligation to comply with the Section 55 duty. Instead, they review the Home Secretary’s decisions and actions in the light of her own duties. The courts have made it clear that children’s rights are a clear public interest consideration in addition to their own personal interests. As the Joint Committee on Human Rights notes in its scrutiny of the Bill, Parliament is entitled to put into primary legislation that which it considers to be in the public interest. The lack of a clear statement setting out the importance of children’s best interests as a factor to be considered creates a risk that children’s best interests will not be taken into account as a matter of public interest to the same degree as those public interest considerations listed in Clause 18. In its evidence to the Bill Committee, the Immigration Law Practitioners’ Association stated that Clause 18 directs attention to some factors at the expense of others. The most obvious missing factor is the best interests of children.
In 2012, the Supreme Court held in the case of HH—UKSC 25—that children’s interests are also public interests and not just private rights, stating,
“although the child has a right to her family life and all that goes with it, there is also a strong public interest in ensuring that children are properly brought up”.
In this respect, the Bill is not consistent with established case law and gives the impression that children’s interests amount to no more than the private and personal interests of an individual and their family. They clearly amount to more than that and this should be reflected in the Bill.
Amendment 20 reflects the fact that “unduly harsh” is an incorrect test of the context of considering what is best for a child, whereas “disproportionate” is known and well understood. New Section 117C of the Nationality, Immigration and Asylum Act 2002, inserted by this Bill and relating to Article 8 of the European Convention on Human Rights, states:
“Exception 2 applies”—
where there is—
“a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh”.
The “unduly harsh” test in relation to children is not consistent with the best interests principles. This test of “unduly harsh” is a legally defined term within the context of refugee protection and internal relocation. I should like to cite an example and I do so in due deference to the noble and learned Lord, Lord Hope. I hope that he will not mind if I quote from a case over which he presided in 2007—the case of the Secretary of State v AH (Sudan) and others. In that judgment, the noble and learned Lord was quoted as having stated in another case:
“‘The question ... is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally ... it will not be unreasonable to expect him to move there’”.
However, I do not believe that that test can be applied within the context of considering children’s best interests. Surely a child should not be expected to live a relatively normal life judged by the standards that prevail. That is not and, I submit, cannot be a best interests consideration. When considering a child’s best interests, a range of issues need to be taken into account, such as the child’s immediate safety and their access to, and the quality of, vital services such as healthcare and education. In addition, under the UN Convention on the Rights of the Child, every child has a right to be cared for by his or her parents. In fact, Article 9 says:
“States … shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”.
The audit carried out by the UNHCR last year of Home Office procedures highlighted that there is no systematic collection or recording of the information necessary and relevant to a quality best-interests consideration in family cases. This includes a lack of any mechanism to obtain the views of the child and to give those views weight in line with age and maturity. Research carried out by the Greater Manchester Immigration Aid Unit into unaccompanied children’s asylum cases found that in 24 of 34 cases analysed, the Home Office failed to carry out any determination of the child’s best interests at all. The Joint Committee on Human Rights highlighted similar concerns in its scrutiny of this Bill, noting that without further clarity,
“there is a danger that front-line immigration officials … will be unclear about the relationship between the children duty in s. 55 and the new tests … which use different and unfamiliar language”.
The Government have said that, despite the introduction of tests in the courts, the courts would still be bound by the duty to promote the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act 2009 for all cases involving children. However, Clause 18 is likely to add further confusion, not least for decision-makers, as to how best interests are to be considered. Therefore, I believe that effective judicial oversight is crucial in ensuring that children’s best interests are taken into account in any case involving a child, and these considerations need to be made clear in the Bill.
In conclusion, considering whether it would be duly harsh to separate a child from his or her parent is inconsistent with the obligations to consider the child’s best interests. Perhaps I might invite the Minister to explain just what he understands “duly harsh” and “unduly harsh” to mean. At precisely what point does “duly harsh” become “unduly harsh”, and who decides where the line is crossed? The use instead of the term “disproportionate” at least allows for a balancing exercise within the well established approach to interference with Article 8 rights, which must include consideration of best interests. I very much hope that the Minister will take these points on board and I look forward to his response.
Baroness Lister of Burtersett (Lab)
My Lords, I rise to speak to Amendment 21, supported by the noble Lord, Lord Pannick, and now, I believe, by the noble Lord, Lord Roberts, and perhaps in spirit by the right reverend Prelate the Bishop of Leicester.
First, however, I welcome Amendment 58 in the names of the noble Earl, Lord Listowel, and the noble Lord, Lord Taylor of Holbeach. This addresses one of the concerns raised by the Joint Committee on Human Rights, of which I am a member, as to how the Bill’s provisions were to be read alongside the Section 55 duty to safeguard and promote the welfare of children. But, sadly, as my noble friend has already said, it does not meet our related concern that Clause 18 should make explicit that the best interests of children must be taken into account as a primary consideration. I would be grateful if the Minister could explain on the record the implications of Amendment 58 for Clause 18, building on what the noble Lord, Lord Taylor, said earlier. As it is, I am still perplexed as to why the Government refuse to accept the best interests amendment, given that the Minister said very clearly in Committee:
“We believe that the children’s best interests must be a primary consideration”.—[Official Report, 5/3/14; col. 1384.]
The Earl of Listowel (CB)
My Lords, before speaking to my amendment I would like to say just a few words on what the noble Baroness, Lady Lister of Burtersett, has just said. She reminded me very much of the work of the child psychotherapist Anna Freud, who wrote several books on law and children with two eminent jurists from Yale University in the United States. She wrote about the difference between child time and adult time. A year in the life of a child is obviously disproportionately large compared with a year to an adult. We are all very concerned about children who languish in the care system who are just sitting waiting to be adopted. Even six months for a very young child is a huge chunk of their lives. I have a lot of sympathy for what the noble Baroness said.
I shall speak to Amendment 58 standing in my name and that of the Minister, the noble Lord, Lord Taylor of Holbeach. There has been concern that this Bill may weaken the welfare rights of children. The purpose of my amendment is to provide clarification that the rights of children will be undiminished.
I am most grateful to the Minister for adding his name to this amendment. I could have wished that the amendment went further to include reference to the best interests of the child, as was mentioned earlier in a debate this afternoon. However, having discussed this with officials, I understand that there are procedural difficulties that prevent the Government agreeing such a reference in the legislation at this stage of the Bill. I regret that, but I am grateful at least for this. I hope that the Minister will reiterate and make clear in his reply that the best interests of the child remain a priority throughout this legislation.
I also take this opportunity to reiterate my thanks to the coalition Government for having done so much to improve the welfare of children detained with their families. I have followed this issue for many years and the change has been remarkable and wholly in the right direction. I am most grateful that the Government are now enshrining those changes in this Bill. I also appreciate the opportunity that the noble Lord, Lord Storey, and I had to meet the Minister, the noble Earl, Lord Attlee, and officials to discuss our concerns about the welfare of young care leavers who arrive here as unaccompanied asylum seekers. I think that the Minister shares our concern for these young people—18, 19 and 20 year-olds—who are resident here without their parents, having experienced the loss of their homeland and their families, often having made a perilous journey to this country as children.
I hope that the report on these young people, to be published by the Children's Commissioner for England very shortly, will be favourably received by the Minister. I trust that any noble Lords who have been a parent or worked with young people will think about what it would be like for their own children, bereft of their parents, unguided and uncertain in a foreign land. I hope that they will keep that at the forefront of their minds when considering the immigration status of these young people and wish to treat these young people with consequent humanity.
I would be most grateful to the Minister if he would consider writing to local authorities to remind them of their particular duties to these young people. Many local authorities extend themselves very far to help them, but there remains evidence that not all authorities are clear about their duties in this area. I look forward to the Minister's reply.
Lord Pannick (CB)
My Lords, I added my name to Amendment 21, which is in the name of the noble Baroness, Lady Lister of Burtersett. As she explained, some of the provisions in Clause 18 depend on a relationship with a qualifying child. I am doubtful of the wisdom of imposing rigid categories in a context that inevitably depends on the circumstances of individual cases. It seems that the inevitable consequence will be to create anomalies, as here, with the impact on a child who has lived in this country for a continuous period of four, five or six years. If we are to legislate by reference to the number of years that a child has been in this country, a cut-off period of four years seems much more appropriate than seven years. If the child is aged between six and 10, four years will form the major part of his or her conscious experience.
The Lord Bishop of Leicester
My Lords, I want just to assure your Lordships that as the noble Baroness, Lady Lister, suggested, I support Amendment 21 in spirit. I also support it in practice. It seems that the arguments, from any understanding of child development, are clearly overwhelming. I speak as a former chair of the Children’s Society and as a member of the commission that published the A Good Childhood report on behalf of the Children’s Society some four or five years ago, which was based on the evidence of more than 20,000 children, many of them very young children. They made it very clear, even at the age of five or six, that friendships were an absolutely primary part of their understanding of their well-being. This is documented and spelt out in that report, as indeed it is in many other more academic reports.
I would be happy to support this amendment as it stands or even if it is reduced to fewer years. On the basis of any understanding of child development, the argument for a cut-off period of four years seems overwhelming. I hope the Minister will be able to respond positively to the amendment.
Baroness Benjamin (LD)
My Lords, I congratulate the Government on accepting the noble Earl’s amendment, Amendment 58, as it addresses the unfortunate and desperate situation that many young people find themselves in. With regard to the other amendments in the group, let us not forget that childhood lasts a lifetime, and that we need to try to give children a happy early passage in life however, wherever and whenever we can.
I take this opportunity to follow up briefly on a few of the concerns that I raised in Committee about young people who find themselves with non-immigration status. Worryingly, every year more and more are finding themselves in that position. I ask my noble and learned friend the Minister for clarification on two points. First, will he confirm that young people who had irregular status before they reached 18 will fall within the local authority’s duty to “former relevant children” under Section 23C of the Children Act 1989 until their status is regularised? Secondly, do local authority duties regarding homelessness apply to this group and, if they have been living in foster care, does the extension contained in Section 98 of the recent Children and Families Act apply to enable them to remain in the family?
Lord Hope of Craighead (CB)
My Lords, I want to add just a word or two with reference to Amendment 16, in the name of the noble Lord, Lord Watson of Invergowrie, which would insert a new provision dealing with “the best interests of children”. In supplement to what he said, the Supreme Court has paid a lot of attention over the four years of its existence to the UN Convention on the Rights of the Child, to which this country is a signatory. Almost at every opportunity where the issue has arisen, it has stressed the need to promote the best interests of children in dealing with immigration issues, so the point is of some general importance.
The point I wish to draw to the Minister’s attention concerns proposed new Section 117A(2), inserted by Clause 18, which contains the phrase:
“In considering the public interest question, the court or tribunal must … have regard”—
to the provisions that follow. Those words remind one of the words in Section 2 of the Human Rights Act 1998. The noble and learned Lord may recall that there is some debate going on as to the extent to which the courts in this country must feel themselves bound by decisions of the Strasbourg court or whether in performing the Section 2 duty of having regard to—I think the wording of the Act is “take into account”—they can rate what they see and weigh it up but not necessarily feel themselves bound to follow it. The question is: which of these two alternative lines is the Minister contemplating by the use of the phrase “must have regard to”? Is this something that is in the form of a duty, which gives no leeway to the court and therefore it must follow the language precisely as it finds it in the succeeding subsections, or is it, as some people would say about the Strasbourg court, that one can see what is said but there is room for manoeuvre at the same time?
The noble Lord, Lord Watson, explained the point very clearly. When one is considering any public interest considerations that involve children, one will have regard to the existing jurisprudence, the convention rights and so on. The fact that children are not mentioned expressly, except in the very helpful new clause coming in via Amendment 58, does not mean that the court cannot have regard to their best interests. If the Minister would confirm that, that would be extremely helpful, given the nature of the language in proposed new Section 117A(2).
As I hope the noble and learned Lord will appreciate, there will be some read-across from the way the jurisprudence has developed with reference to the Human Rights Act to how one starts the whole exercise that this new clause is dealing with. It is really very important to be clear about how one approaches the entire package in understanding the various criticisms that have been made.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, first, I thank not only the noble Earl, Lord Sandwich, but others who have spoken to amendments in this group, because it is of considerable importance that in dealing with these important immigration matters, the interests of children are kept very much in our minds and that we give proper consideration to them.
The noble Earl, Lord Sandwich, raised a point about the withdrawal of assisted voluntary return for immigration detainees. In the short time since he spoke, the information I have received is that the Government prefer illegal migrants to depart voluntarily and go to considerable effort to help them to do so. Those who refuse to go voluntarily may well have to be detained and have removal enforced. Until 31 March, detainees could apply for an assisted voluntary return package. However, the evidence was that that increased delays and costs. I do not think that anyone believes that it is in anyone’s interest to have a drawn out removal process. I confirm that there remains the opportunity to depart voluntarily with assistance, but those who do not co-operate will not fall within that and will be removed. I appreciate that that is perhaps a sketchy answer, but I think that the best thing is to give further chapter and verse by writing to the noble Earl to explain in more detail precisely what are the policy considerations that have led to that provision.
The amendments raise important issues about the best interests of children and the proportionality of decisions under the qualified right to respect for private and family life under Article 8 of the European Convention on Human Rights. I turn first to the amendment in the name of the noble Earl, Lord Sandwich. It is right that the best interests of the child in the United Kingdom should be a primary consideration in the certification process. The noble Earl, Lord Listowel, asked me to confirm that. There will no doubt be cases in which deportation appeals are not certified because of the risk that serious irreversible harm may be caused to a child, but the amendment would make the best interests of the child a trump card over any other consideration, including the strong public interest in seeing foreign criminals deported quickly. Under the amendment, a foreign criminal or deportee would be able to use a child who may have been in the UK for a matter of only days or weeks—there is no definition of a qualifying child—to avoid certification of their appeal and an early departure from the United Kingdom.
The noble Earl asked about parents who will be deported before appeal. The test will be whether serious irreversible harm is likely to result from a temporary separation, pending an appeal on the particular facts of the case. The best interests of children in the United Kingdom will, as I said, be a primary consideration. The courts have reflected that in many cases. It is a primary consideration—not the overriding, trump-all-else consideration, but a primary consideration which they are obliged to take into account. That will be taken into account in the decision whether to certify as well as in making the original decision.
The other effect of the noble Earl’s amendment would be to rely on the presence of the child, even if the parent—the person subject to deportation—did not care for the child or had no relationship with the child. We do not think that that can be right. The certification power will be used only where an individual’s own conduct, such as criminality, leads the Secretary of State to consider that their presence is not conducive to the public good. The power is tightly defined to ensure that only those who have caused or are trying to cause us harm are deported from the country quickly. Its operation should not be impaired by the impact of the amendment.
I turn to Amendments 16 and 18, spoken to by the noble Lord, Lord Watson of Invergowrie. I readily understand the concerns that he raised about the best interests of children affected by immigration decisions. Amendment 16, to which the noble and learned Lord, Lord Hope of Craighead, also referred, would insert the words:
“The promotion of the best interests of children”,
as a public interest consideration applicable in all cases. I appreciate what lies behind the amendment and welcome the opportunity to reconfirm to the House how the best interests of children are and will remain a primary consideration in all cases concerning the ECHR Article 8 right to respect for private and family life. I believe that the Bill is consistent with our obligations towards children under the United Nations Convention on the Rights of the Child and Section 55 of the Borders, Citizenship and Immigration Act 2009, usually referred to as the children duty. These provisions, as interpreted in particular by the Supreme Court in ZH (Tanzania), establish the best interests of a child in the UK as a primary consideration in considering proportionality under Article 8. This means that the Secretary of State must have regard to the best interests of the child as a primary consideration and ask whether any other considerations outweigh it. Clause 18 is compatible with these obligations and has been designed to take proper account of children’s best interests. It does not require the statement added by Amendment 16, which would also expand the extent of the consideration required by Section 55 to include children outside the United Kingdom.
The Earl of Sandwich
My Lords, we have gone over the hour and the Minister has had to deal with a whole range of amendments. The underlying thing has been the primary consideration of the best interests of the child.
It was good of the Minister to respond so quickly to a question which I put rather abruptly. He has given a fairly harsh, Home Office reply but I am grateful for that all the same. There is no doubt about the good faith of the Ministers that we know here; it is the system that they represent. They know that it can never be perfect. In fact, the noble Lord, Lord Taylor, mentioned earlier that improvements are being made all the time. This is the whole point of these debates.
I was not satisfied with the answer. I thought that my amendment would provide a simple subsection reiterating what has already been stated and principles that have already been established. Nevertheless, the Minister has clarified and has been very helpful. I hope that the noble Baroness, Lady Hamwee, will also appreciate that we have gone into the same subject as we did four weeks ago. Yet clarification is helpful to the judiciary and others.
My noble friend Lord Listowel will have to wait a very long time before he can reply to the Minister’s response on Amendment 58, which is at the end of the Bill. However, that new amendment has been a really useful step forward. Meanwhile, I beg leave to withdraw Amendment 15.
Lord Pannick
Lord Pannick
My Lords, Amendments 17, 18 and 19 are in my name and that of my noble and learned friend Lord Hope of Craighead. I thank the noble Lord, Lord Taylor, the noble Earl, Lord Attlee, the Immigration Minister, Mr James Brokenshire, and members of the Bill team for the helpful—to me, at least—meeting that we had last week.
Your Lordships had a wide-ranging debate on Clause 18 in Committee. These amendments have a narrow focus. Amendments 17 and 18 address the parts of Clause 18 that tell courts and tribunals to give little weight to private life in defined circumstances—for example, where a relationship with a British citizen was established in this country at a time when the claimant was here unlawfully. Amendment 19 addresses the provision that says that the public interest requires deportation in defined circumstances.
These amendments would modify the absolute nature of the relevant parts of Clause 18. My understanding from the debates that we had in Committee is that there is no dispute from the Government about two propositions; I would welcome assurances on this. The first proposition, which I understand to be uncontroversial, is that there may be compassionate cases—it may be unusual, but there may be cases—where, on the particular facts, Article 8 requires more than little weight to be given to the relevant factors; or where Article 8 requires no deportation despite the terms of new Section 117C. Such cases may be unusual or out of the ordinary, but they are at least conceivable.
The second proposition, which I understand to be uncontroversial—again, I would welcome assurance on that—is that the Government, I think, accept that if the court or the tribunal concludes that Article 8 requires more than little weight to be attached to the factors in a particular unusual case, or Article 8 requires no deportation, the domestic court or tribunal must apply Article 8. That clause is not intended in any way to amend the obligations of the courts or the tribunal under the Human Rights Act. My understanding—I urge the Minister to correct me if I am wrong—is that Clause 18 is not intended in any way to override the principle stated by Lord Bingham of Cornhill for the Appellate Committee in 2008 in the case of EB (Kosovo) at paragraph 12, that,
“the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case … there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires”.
These amendments seek to ensure that there is consistency between the wording of Clause 18 and the obligations of courts and tribunals. The helpful letter dated 28 March from the noble Lord, Lord Taylor, pointed out, accurately, that it is far from unique for legislation to identify matters for courts to take into account, and the noble Lord gave a number of examples. However, in each of those examples Parliament told courts and tribunals to have regard to particular principles or factors. In none of those examples did Parliament tell courts and tribunals what conclusion to reach. My concern remains the absence of any recognition in the clause as drafted that they may be cases where the Government’s preferred result is not consistent with Article 8. My concern is the suggestion in the legislation that the court or tribunal should arrive at a particular result even though the Government, as I understand it, recognise that the court or tribunal will be required to enforce Article 8.
A long time ago, AP Herbert wrote the very entertaining Misleading Cases. My concern is that Clause 18 is misleading legislation, and we ought to do something about it. I beg to move.
Lord Hope of Craighead
My Lords, I added my name to the noble Lord’s amendment because I, too, find it difficult to know quite how the court will deal with a particular case where it feels that more than little weight should be attached to the various matters referred to in the various paragraphs that are under consideration. It is quite striking when you look back—as I invited the noble and learned Lord to do a moment ago—to the earlier part of new Section 117A, that there is no attempt to modify, appeal or amend Section 6 of the Human Rights Act itself. If you go to Section 6, of course it takes you back to Section 2, which tells the court that, in considering whether there is a breach of the duty under Section 6, it must take into account decisions of the Strasbourg court.
It is not inconceivable, although it may be unusual, there could be a real problem for a court which is following the Human Rights Act directions and is trying to take account of what one finds in new Section 117A, bearing in mind the point that the noble and learned Lord made to me not very long ago about the purpose of setting this out in the Bill. I think that I entirely understood him to say that the purpose of this was to lay down clear guidance to the court, which the court is expected to follow. I absolutely understand the reasons why the Minister says that, but that makes it all the more important, I respectfully suggest, for the Government to avoid the temptation to be too prescriptive about the conclusions that must be reached.
The problem that comes up so often when one thinks about this sort of thing is that legislation is a fairly blunt instrument. Last week, we debated the IPP legislation; the previous Administration set out tests that the judges were required to apply in sentencing prisoners to indefinite terms of imprisonment, but it turned out that in practice the judges had to sentence people to draconian sentences more often than they would have done if left to themselves, which created a very real administrative problem for the Government. That is an example of how a blunt instrument can be too blunt and can avoid dealing with a case in the way that Lord Bingham of Cornhill explained in the case of EB (Kosovo), to which I was also a party.
It really is important to avoid being too prescriptive. Use of the word “normally” gives us that little bit of leeway. If it is not there, the court is driven to finding another way round the problem and, if it finds the prescriptive language in the various subsections that we are looking at, it will have another look at the way in which the whole chapter was introduced by the phrase to which I drew attention earlier: “must have regard to”. Then it will say, “All right, it’s a rule, but it’s not something that we must follow because we have only to have regard to it”. That takes us back to the debate about the Strasbourg court that I was talking about; those who do not particularly like to be told what to do by Strasbourg would rather not have regard to it, because they do not feel that they are obliged to.
If the Minister would like, as I think he would, to have courts regard these as principles or rules to which they should always have regard in the interests of the public at large, I suggest that we should avoid the trap that has been created, otherwise the courts in these unusual cases will feel that they have to find another solution. That may, in the longer run, be more damaging to the overall package that has been put forward in the interests of trying to solve this problem. Once you undermine the basic philosophy that the Minister is putting across, which I understand, by creating this trap for the courts in these particular cases by telling them what the conclusion must be, you begin to devalue the whole package. I think the Minister would rather not do that. That is why I felt that I should support the noble Lord, Lord Pannick, and his amendment.
Baroness Lister of Burtersett
I speak briefly in support of the amendment. The noble Lord, Lord Pannick, referred to the letter from the Minister, which said that this is not a novelty and then gave various examples. However, it seems to me that the examples are rather different in kind. They said “particular weight” rather than “little”. I refer back to the report from the Joint Committee on Human Rights, which acknowledged that,
“Parliament often establishes statutory presumptions to be applied by courts and tribunals when they are determining individual cases, and occasionally directs that ‘particular weight’ is to be given to a particular consideration in a judicial weighing exercise. Nevertheless”—
this is emphasised—
“we are uneasy about a statutory provision which purports to tell courts and tribunals that ‘little weight’ should be given to a particular consideration in such a judicial balancing exercise. That appears to us to be a significant legislative trespass into the judicial function”.
The amendment offers the Government a way out of that “trespass”, and I hope that the Minister will feel able to take it.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Pannick, the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Lister of Burtersett, for giving us an opportunity to revisit Clause 18.
I do not propose to repeat what I said on the previous group of amendments—which I think has been acknowledged by the noble and learned Lord, Lord Hope—as to why the Government came to the position that they did and thought that it was better in the circumstances to include these rules in the Bill. I say to the noble Baroness, Lady Lister, that I do not believe that this is a trespass into the judicial function. As I indicated earlier, I think that one of the things that have to be taken into account, given that Article 8 rights are not absolute rights, is the public interest. It is appropriate and proper that Parliament determines what the public interest is. That is what we seek to do in Clause 18. Thereafter, it is quite properly the function of the courts to apply the law, having considered all the circumstances.
In moving his amendment, the noble Lord, Lord Pannick, said that this debate had a narrow focus, unlike the earlier debate that we had in Committee. Amendments 17 and 18 propose to qualify, by inserting the word “normally”, the provisions in Clause 18 that little weight—in terms of the public interest—should be given to private life, or to family life with a British or settled partner, which was formed when the person was in the United Kingdom unlawfully, or to private life formed with precarious immigration status.
In a similar vein, Amendment 19 proposes to qualify the provision made by Clause 18 for the public interest in the deportation of a foreign criminal who has not been sentenced to imprisonment of four years or more, and who seeks to prevent their deportation by relying on their private life, on their family life with a British or settled partner, or on their parental relationship with a British child or a foreign child who has been resident in the UK for seven years or more.
These amendments are not required to ensure that Clause 18 is compatible with our obligations under the European convention, or to ensure that it properly reflects judicial discretion in determining proportionality under Article 8 in individual cases. It will remain a matter for the courts to consider—not just “normally” but in every case—whether the interference in the individual’s right to respect for private and family life is justified by the relevant public interest considerations. However, the Strasbourg court has made it clear that the European Convention on Human Rights does not guarantee families a right to reside in a particular country, and has consistently recognised that the Executive enjoy a significant margin of appreciation in determining how most appropriately to control immigration.
Clause 18 seeks to reflect Strasbourg case law, which has consistently said that little weight should be placed on private or family life formed during a time when a person’s immigration status is precarious—for example, in the case of Rodrigues da Silva and Hoogkamer v the Netherlands. I fully appreciate the point made by the noble and learned Lord, Lord Hope, that flexibility might be lost when measures are put into primary legislation, although I am not saying that it is a straitjacket. Indeed, one of the considerations that the Government had to weigh up when the decision was taken that it was better to put these matters into primary legislation was that it does not have the same flexibility as rules, given what had been said in the Upper Tribunal regarding matters which were otherwise found in the Immigration Rules. No doubt successors in office will have to keep an eye on Strasbourg jurisprudence. I recognise that it is more difficult to amend primary legislation due to the nature of the parliamentary timetable. Nevertheless, we thought that it was better to do what we did. As I indicated, what we believe we are doing with regard to the reference to “little weight” is to reflect current Strasbourg case law.
Those who enter the United Kingdom for a temporary purpose, such as work or study, can have no automatic expectation of being allowed to settle here. Any private life they develop must be seen in the context of the expectation of their returning to their country of origin. Those who form private or family life while in the United Kingdom unlawfully can have less expectation of being allowed to stay here, and still less those who commit such serious criminal offences that they fall to be deported from the United Kingdom.
As was mentioned in the speeches, the amendments reflect a concern that, if little weight is given to family or private life in these circumstances, a claim under Article 8 can never succeed. That is not the case. The fact that a private or family life has been established should be given little weight, consistent with the case law, but that does not mean no weight is given to that private or family life.
Where there are other factors to be put in the balance—such as the presence of children, disability of the partner, contribution to the community or the fact a young adult has spent over half their life in the UK and has no ties with their country of birth—these factors will all need to be weighed in the balance to decide whether it would be disproportionate to remove the person from the United Kingdom. The need to have regard to these other factors is reflected in the current family and private life Immigration Rules. The case law and Home Office guidance also make it clear that there may be other exceptional factors that need to be taken into account to ensure the decision is compatible with the European Convention on Human Rights.
The addition of the word “normally” is therefore unnecessary, if the aim is to ensure that other relevant factors can be taken into account. It is unhelpful in that it gives no indication of the circumstances when little weight should not be given: in other words, what would be the abnormal case? It is potentially more restrictive, and arguably even incompatible with the European convention, if the implication is that normally these additional factors will not be taken into account. In fact, they should always be taken into account.
I agree with the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope, that where little weight should be given to family or private life, that does not mean no weight. In response to the specific points made by the noble Lord, Lord Pannick, I confirm that there may well be compassionate or exceptional cases where Article 8 requires weight to be given to these or other factors or Article 8 requires no deportation. I confirm that the courts must continue to apply Article 8 under the Human Rights Act and that Clause 18 does not override the dicta of the late Lord Bingham, in EB Kosovo, as to the appellate function of the courts in deciding cases under Article 8. Clause 18 enables other circumstances to be taken into account. The insertion of “normally” is neither necessary nor desirable to achieve that outcome.
The noble Lord, Lord Pannick, referred to AP Herbert’s “Misleading Cases”. I well remember the series which starred Roy Dotrice, with Alastair Sim on the Bench. Looking back, it is quite possible that that is where I started in the career I eventually pursued. It was a fantastic series, well worthy of a repeat. This is not a misleading clause. It sets out what the public interest requires but it does not detract from the need for the courts to decide what Article 8 requires in a particular case. I hope that, with these reassurances, the noble Lord will agree to withdraw the amendment.
Lord Pannick
I am grateful to the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Lister, for their support and to the noble and learned Lord the Minister, in particular, for giving the assurances I sought. I am still concerned that there remains a conflict between what I see as the absolutist language of the clause and the flexibility which the noble and learned Lord recognises that Article 8 requires by reference to the circumstances of individual cases. I fear that this clause will cause confusion and it will foster litigation. However I beg leave to withdraw the amendment.
The Deputy Speaker (Lord Haskel)
I draw to your Lordships’ attention the fact that the annunciator is stuck and has been showing the name of the noble Baroness, Lady Lister—but they are working on it.
Amendment 22
“Residence permit: domestic violence
(1) A person (P) shall be entitled to a residence permit for three months for rest and reflection where—
(a) P is married, in a civil partnership, or in a durable relationship with someone who is lawfully in the United Kingdom; and(b) P is in the United Kingdom as a dependant of that other person; and(c) the relationship breaks down as a result of domestic violence.(2) The residence permit shall be available to P and any dependants already in the United Kingdom with entitlement to work.”
Baroness Smith of Basildon (Lab)
My Lords, I suspect that somewhere it will be recorded that my noble friend Lady Lister made a very long speech.
I shall be brief on this amendment. This was an issue that I raised in Committee and I raise it again because I was disappointed with the Minister’s response at that stage and I thought that I would have another shot at getting some clarity on it.
Amendment 22 would provide that a person lawfully married or in a civil partnership or a durable relationship with somebody in the UK would have a residence permit for three months for rest and reflection where the relationship had broken down as a result of domestic violence. The noble Lord and I have spoken on other occasions with regard to this Bill on domestic violence issues, and he will know of my concern that victims of domestic violence should be given every opportunity to deal with the issues that they face and not have them further complicated.
The amendment is designed to provide respite or a breathing space for an individual at a very challenging and difficult point in their relationship and in their life. Currently, if someone is in the UK and is the spouse of a student or a points-based system visa holder and the relationship breaks down as a result of domestic violence, they have only one option, which is immediate return to their country of origin. That might involve leaving any employment or uprooting any children who may be in school, and the point was made earlier about people having friendships and relationships. That would leave somebody in an abusive relationship with a very difficult choice: they would have to stay in that relationship, face immediate return or overstay. Under the amendment, the person would be able to consider options and might be able to make an application to remain in the country in their own right or return to their country of origin in a safe and rather more dignified way with, one hopes, the ability to make arrangements for their children and their work. I accept that the drafting is not perfect but I hope that the Minister will understand the objective of the amendment.
We tabled a similar amendment in Committee and the Minister responded by saying:
“If an individual is the victim of domestic violence, they have full protection of the criminal and civil law and of the law enforcement agencies, regardless of their immigration status. That is not in question”.
But nor was it my question. He went on to say:
“But that is not to say that all victims of domestic violence should expect that they can stay here in the UK”.
That, again, is not the point of the amendment. He said:
“There is provision in the Immigration Rules to grant indefinite leave to remain to victims of domestic violence who are here as the partners of someone who is a British citizen or settled in the UK, or a Foreign or Commonwealth member of Her Majesty’s forces who would be able to become settled were it not for service in those forces”.—[Official Report, 10/3/14; cols. 1577-78.]
That really did not address the point that we were making and we did not find it satisfactory.
At the time, the Minister said that he would write to me on that point. I do not appear to have had a letter by way of response. It is possible that I have missed it in the avalanche of letters that we have had on the issue. The noble Lord has been very good at responding and at having meetings, but I do not seem to have had that letter. Therefore, I have tabled this amendment to ask whether the Minister has given any further consideration to the points that we have made in relation to the three-month respite period. It would give a person the opportunity to make arrangements and to deal with their problems in a dignified and responsible manner rather than face a rushed deportation or remain in a very difficult relationship. It is a commonsense amendment to tidy up something that is currently a bit messy and unsatisfactory. I beg to move.
Baroness Hamwee (LD)
My Lords, I, too, found the passage that the noble Baroness has just quoted and I realised that there was no reference in it to any exercise of discretion. There is a reflection period of 45 days for victims of human trafficking—at any rate, for those who go through the national referral mechanism. I do not think that that is long enough but that is another matter. I was glad to see that a 90-day period is suggested here. The Government, rightly, recognise problems of domestic violence, but can the Minister tell your Lordships whether there is any scope for exploring some sort of discretion to enable women—as it mostly would be, many of them women with children—to have a period in which to recover? They will not do that in 90 days, although I would not argue for more when we are exploring this, but they need a period in which to consider where next to try to take their lives and, quite often, their children. That would be the humane and proper thing for a civilised society to do. This is not suggesting that, having suffered domestic violence, there is some sort of instant entry to indefinite leave. It is just a temporary pause: an opportunity to consider what to do and where to go next.
Baroness Lister of Burtersett
On the principle that a stopped clock is right twice a day, I will speak again so that the annunciator is right. I supported this amendment in Committee and want to support it again. In fact, it is very timely because the UN special rapporteur on violence against women, its causes and consequences is currently on a mission in the UK and gives oral evidence to the Joint Committee on Human Rights tomorrow. In her preliminary aide memoire, she refers to four particular issues of interest. One is violence in the family and another is what she calls violence in the transnational sphere—that is, violence encountered by women facing new vulnerabilities as a result of increased transnational processes, such as immigrant women, asylum seekers and refugees. Women in that group are very vulnerable if they are in a situation of domestic violence. To their credit, the Government have taken domestic violence very seriously. I hope that we can have a slightly more positive response to the amendment than we did in Committee.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, first I must offer the noble Baroness, Lady Smith, an apology because I do not think I wrote to her on this issue. She has not missed the letter; I missed writing to her. I am sorry about that. I will make sure that I write to her after this debate because there are extensive arguments. I want to keep the argument fairly focused for this evening.
I will start with a generality. The noble Baroness, Lady Lister, was kind to say that the Government take this issue seriously. We do indeed. Only last Thursday, I was able to respond to a supplementary question from the noble Baroness, Lady Howarth of Breckland, about a report on the way that police forces deal with domestic violence. I said that the Home Secretary is committed to tackling this scourge. She has made it clear that she expects speedy action to implement the recommendations of that report.
Having said that, it does not necessarily mean that individuals who have been the victims of domestic violence should expect to be able to remain in the UK where their migration status would not otherwise permit them to do so. While I run the risk of repeating myself from last time and being quoted back yet again, as we have discussed previously there is provision in the Immigration Rules to grant indefinite leave to remain to victims of domestic violence who came to the UK intending to make a permanent life here as the partner of someone who is already a permanent resident or who, in the case of the partner of a member of Her Majesty’s forces, is prevented from applying for permanent residence during the period of service. That just reiterates the position of that particular group of people.
However, the position is different for individuals who are in the UK because of a relationship with someone who does not have the right of permanent residence. Those individuals should not have any expectation of remaining in the UK outside that relationship, regardless of the reasons for that relationship breaking down. To grant leave to an individual who is in the UK as someone’s partner but who is not settled here on a basis other than the ongoing partnership would suggest that his or her right to be in the UK was independent of that partnership, which is not the position. It would not be helpful to encourage anyone to think otherwise or, by the grant of a specific period of leave, to give false hope that they might be able to stay. However, we take a pragmatic and practical view in these cases. If a migrant no longer meets the requirements of their leave because a relationship with a spouse or partner has broken down, discretion may be used so that, rather than curtailing leave with immediate effect, the Secretary of State may curtail that leave—if I may use the word “normally”—normally to a period of 60 days. This would allow the migrant time to make arrangements to depart the UK voluntarily without being here illegally, or to submit an application to remain in the UK on another basis. That is a relevant consideration, which I hope noble Lords will understand.
The Government consider that it is fair, reasonable and proportionate to distinguish between those whose partner is here permanently and those whose partner is here temporarily and may never become a permanent resident. I acknowledge that this is a difficult area but I think that noble Lords will understand the difficulties of extending rights in this area. I consider the position that I have outlined is the right one. As I have said, I certainly will write to the noble Baroness, with a copy to noble Lords, and will place a copy in the Library. I appreciate that this is an important issue to get right. None of what I have said dilutes our determination that we should pursue the issue of domestic violence, which ruins lives and is never acceptable. I hope that the noble Baroness understands our position and will withdraw her amendment.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord for that response, although I am not sure that I understand his position. I wish that I had received a letter. With the benefit of a letter addressing the points that he has made, perhaps my amendment and the points raised in the debate would have been different. He seemed to be saying that no action should be taken. He referred to granting indefinite leave to remain, which is not what we are suggesting. All we are suggesting is a breathing space for someone to make arrangements. However, he went on to imply that perhaps a breathing space may be granted, although I am not sure of the circumstances in which that would be granted.
At one point I thought that the Minister’s reply seemed rather insensitive and unhelpful, but then it seemed that he was being more helpful. I am really not clear about the process. I would be grateful if the Minister would write to me and I could reflect on that. I know that it would not be usual to bring this back at Third Reading but, given that I did not have the response in order to address the points on Report that I would have addressed otherwise, I hope that he will be understanding and that we can discuss this issue further. At this stage, I beg leave to withdraw the amendment but I would like to return to the issue with the noble Lord, given his somewhat contradictory answer.
Lord Taylor of Holbeach
Of course, I am very happy to talk to the noble Baroness about the detail of this. I mentioned that the Secretary of State considers these cases and normally there is a 60-day period to get the individual’s status sorted out. We appreciate that this is not easy for individuals to cope with. I think that 90 days was mentioned by the noble Baroness, Lady Lister, and also by the noble Baroness, Lady Smith. But in practice, 60 days is within the Secretary of State’s discretion.
I will write with fuller detail. I hope that we will have a chance to talk about this before we get to Third Reading.